Motion for Summary Adjudication in Diagnostic Imaging Consultants Of St. Petersburg, P.A.,Warncke, Robert vs 21St Century Centennial Insurance Company| Trellis.Law

On April 05, 2021 a Motion,Ex Parte was filed involving a dispute between Diagnostic Imaging Consultants, Diagnostic Imaging Consultants Of St. Petersburg, P.A., Warncke, Robert, and 21St Century Centennial Insurance Company, for Civil in the District Court of Hillsborough County.

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Filing # 126524021 E-Filed 05/10/2021 06:37:20 PM

IN THE COUNTY COURT OF THE 13TH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

DIAGNOSTIC IMAGING CASE NO.: 21-CC-032297
CONSULTANTS OF ST. PETERSBURG, DIVISION: L
P.A. D/B/A DIAGNOSTIC IMAGING
CONSULTANTS,
as assignee of Robert Warncke
Plaintiff,

vs.

21ST CENTURY CENTENNIAL
INSURANCE COMPANY,
Defendant.
_____________________________________/

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff, Diagnostic Imaging Consultants of St. Petersburg, P.A. d/b/a Diagnostic

Imaging Consultants (as assignee of Robert Warncke), by and through its undersigned counsel

and pursuant to Florida Rule of Civil Procedure 1.510, submits this Motion for Partial Summary

Judgment and moves for entry of partial summary judgment in its favor, reserving its right to

move for summary judgment with regard to issues not rendered moot by this motion and

stipulated to by the parties. In support thereof, Plaintiff states the following:

I. Introduction

Defendant paid PIP benefits to Plaintiff, based on the 2007 Medicare participating

charge. Defendant paid the PIP Benefits to Plaintiff at the lower participating amount despite the

fact that the Florida Legislature changed language of the PIP statute from paying the

"participating" schedule to paying the "allowable" physicians schedule amount. Because, the

highest "allowable" amount is the limiting charge, Defendant was legally obligated to pay at that

rate. Reimbursement by Defendant at the "participating" amount was in direct contravention of

5/10/2021 6:37 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
the legislative amendment that removed the word "participating" from the only statutory

provision that the parties agree controls the outcome of this case. Defendant's interpretation does

not comport with the legislative amendment and with long-standing statutory interpretation of

Florida's No-Fault Statute.

Plaintiff is entitled to a judgment as a matter of law. There are no genuine dispute of

material facts relating to this specific legal issue, and the sole legal issue for this Court's

consideration in this motion is:

Whether "allowable amount under the applicable schedule of Medicare
Part B for 2007 for medical services, supplies, and case subject to
Medicare Part B," refers to the non-facility participating price or the non-
facility limiting charge. This is referred to as the "limiting versus
participating" issue.

II. Standard for Summary Judgment

Summary judgment is proper if no genuine dispute as to any material fact and that the

moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in

character, may be rendered on the issue of liability alone although there is a genuine issue as to

the amount of damages. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574 (1986). "Summary judgment is designed to test the sufficiency of the evidence to

determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues

raised in the pleadings." See The Florida Bar v. Greene, 926 So. 2d 1195, 1200 (Fla.2006);

Mendez v. West Gables Rehabilitation Hosp., LLC 123 So. 3d 1178, 1180 (Fla. 3DCA 2013).

Because there are no material issues of fact and all that remains is an issue of law, this issue is

properly disposed of via summary judgment. See Moore v. Morris, 475 So. 2d 666, 668

(Fla.1985).

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III. Material Facts

1. Robert Warncke was an insured under an automobile insurance policy issued by

Defendant that was in full force and effect on 3/8/2016.

2. Pursuant to Defendant’s policy in effect on 3/8/2016, the methodology for

determining the amount of reimbursement is pursuant to fee schedule limitations and the

“schedule of maximum charges" payment methodology set forth in Fla. Stat.§§ 627.736(5)a. l-

627.736(5)a.5 (2012-2020).

3. On or about 3/8/2016, Robert Warncke sustained bodily injuries in a car accident.

4. Plaintiff provided diagnostic medical services to assignor on 3/24/2016.

5. Prior to providing these services and as a condition to providing them, Plaintiff

obtained from Robert Warncke a written assignment of benefits. Pursuant to the assignment,

Plaintiff billed Defendant directly for the medical services it provided to Robert Warncke.

6. During the course of treatment Plaintiff performed diagnostic imaging testing on

Robert Warncke on 3/24/2016 and sent its bill directly to Defendant.

7. The Centers for Medicare & Medicaid Services (CMS) website, www.cms.gov.,

features a search tool to easily access the allowable amounts under the Medicare Physician Fee

Schedule ("MPFS"). The "MPFS Fee Schedule Search Tool" provides Medicare payment

information on more than 10,000 services, including pricing, relative values and payment

policies.681

8. Here, there are two available Medicare Part B Fee Schedule reimbursement

possibilities for the service(s) provided on 3/24/2016: non-facility participating price or non-

facility limiting charge. The parties' dispute arises as to whether Defendant should have paid the

681
https://www.cms.gov/apps/physician-fee-schedule/help/How to MPFS Booklet
ICN901344.pdf

5/10/2021 6:37 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
non-facility participating price or the non-facility limiting charge for the service, both of which

appear on the MPFS Fee Schedule Search Tool for 2007.

9. The pertinent statutory provision provides:

For purposes of subparagraph 1., the applicable fee schedule or payment
limitation under Medicare is the fee schedule or payment limitation in
effect on March 1 of the year in which the services, supplies, or care is
rendered and for the area in which such services, supplies, or care is
rendered, and the applicable fee schedule or payment limitation applies
throughout the remainder of that year, notwithstanding any subsequent
change made to the fee schedule or payment limitation, except that it may
not be less than the allowable amount under the applicable schedule of
Medicare Part B for 2007 for medical services, supplies, and care subject
to Medicare Part B.

10. Defendant allowed 200% of the non-facility participating charge in 2007 for

Pinellas County for Plaintiff’s 3/24/2016 bill.

11. Plaintiff contends that the proper amount that Defendant should have allowed for

Plaintiff’s 3/24/2016 bill is 200% of the non-facility limiting price in 2007 for Pinellas County.

12. Plaintiff’s position is that the "allowable amount under the applicable schedule of

Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B" is

the non-facility limiting charge.

13. Defendant's position is that the "allowable amount under the applicable schedule

of Medicare Part B for 2007 for medical services, supplies and care subject to Medicare Part B"

is the non-facility participating price.

14. The sole dispositive issue in this motion is whether "allowable amount under the

applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject

to Medicare Part B[,]" refers to the non-facility participating price or the non-facility limiting

charge.

IV. Reimbursement Under the MPFS

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Before delving into the complexities of which amount under the 2007 Medicare Part B

fee schedule is correct under the PIP statute, a basic primer regarding reimbursement under the

MPFS would be helpful.

The MPFS is a list of uniform reimbursement rates for over 10,000 separate medical

services established pursuant to federal statute682 as part of the federal government’s

comprehensive strategy to fund Medicare reimbursements in a uniform manner designed to

control increasing expenses.683 MPFS reimbursement rates are publicly available at CMS’s

website by accessing the MPFS Fee Schedule Search Tool, which:

allows health care professionals, suppliers, and institutional
providers to find the Medicare payment amount for each code so
they may calculate the beneficiary coinsurance amount. In
addition, for those health care professionals/suppliers who choose
to be nonparticipating, the MPFS provides the limiting charge.

Participating providers are contractually bound to charge no more than Medicare-

approved amounts under Medicare Participating Physician or Supplier Agreements

682
42 U.S.C. 1395w-4.
683
DHHS explained that:

[s]ince January 1, 1992, Medicare has paid for physician services under section
1848 of the Social Security Act (the Act), ‘‘Payment for Physicians’ Services.’’
This section contains three major elements: (1) A fee schedule for the payment of
physician services; (2) a method to control the rates of increase in Medicare
expenditures for physicians’ services; and (3) limits on the amounts that
nonparticipating physicians can charge beneficiaries. The Act requires that
payments under the fee schedule be based on national uniform relative value units
(RVUs) based on the resources used in furnishing a service. Section 1848 (c) of
the Act requires that national RVUs be established for physician work, practice
expense, and malpractice expense.

United States, Department of Health and Human Services, “Medicare Program; Revisions to
Payment Policies and Adjustments to the Relative Value Units Under the Physician Fee
Schedule, Other Part B Payment Policies, and Establishment of the Clinical Psychologist Fee
Schedule for Calendar Year 1998.” 84 Fed. Reg. 59,050 (Oct. 31, 1997).

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(MPPSAs).684 Nonparticipating providers are not contractually bound under MPPSAs and only

accept assignments on a case-by-case basis. Id. Medicare reimburses nonparticipating providers

95% of the allowable amount under the MPFS (i.e., there is a five percent reduction in the

Medicare-approved amounts for nonparticipants). Id. Additionally, there is a limit on what a

nonparticipating provider who does not accept an assignment can charge the beneficiary-patient

(i.e., when the provider charges the patient directly rather submitting the claim to Medicare). Id.

That limit, called the “limiting charge,” is 115 percent of the amount paid to nonparticipating

physicians. Id. Stated differently, the limiting charge is 115 percent of 95 percent of the

allowable amount under the MPFS.

In addition to distinguishing between participating and nonparticipating providers, there

is a differential in reimbursable amounts under the MPFS based on the site of the service. As

CMS explains:

[u]nder the MPFS, some procedures have a separate Medicare fee
schedule for a physician’s professional services when provided in a
facility (such as a hospital) or a non-facility. Generally Medicare
provides higher payments to physicians and other health care
professionals for procedures performed in their offices because
they are responsible for providing clinical staff, supplies, and
equipment. This differential is viewed in the NON-FACILITY
PRICE and FACILITY PRICE columns.

Id. (all caps in the original).

To recapitulate these concepts for ease of reference:

• Participating providers in a non-hospital setting are paid the non-facility price
under the MPFS;

• Participating providers in a hospital setting are paid the facility price under the
MPFS;
684
Participating health care professionals and suppliers have signed the Form CMS-460,
“Medicare Participating Physician or Supplier Agreement” and submit only assigned claims
(claims submitted by health care professionals and suppliers directly to Medicare on behalf of the
beneficiary and are paid by Medicare directly to the billing provider).

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• Nonparticipating providers in a non-hospital setting who accept assignments are
paid 95% of the non-facility price under the MPFS;

• Nonparticipating providers in a hospital setting who accept
assignments are paid 95% of the facility price under the MPFS;

• Nonparticipating providers in a non-hospital setting who do not accept
assignments are paid the non-facility limiting charge (115% of 95% of the non-
facility price under the MPFS); and

• Nonparticipating providers in a hospital setting who do not accept assignments
are paid the facility limiting charge (115% of 95% of the facility price under the
MPFS).

V. Basic Rules of Statutory Construction Required Defendant to Pay Benefits at the
Limiting, Not Participating Rate

The crux of this case is whether Defendant must pay the 2007 "limiting" or

"participating" rate for the services provided to Robert Warncke on 3/24/2016. Defendant

allowed the 2007 non-facility participating charge. Plaintiff maintains that Defendant should

have allowed the 2007 non-facility "limiting" charge. The corresponding difference between the

two reimbursement calculations is does not exceed $99.99. Defendant’s position is not supported

by Florida law.

(a) The Legislature's Amendment Deleting "Participating" and Replacing It
With "Applicable Supports Plaintiff's Position.

The resolution of the "limiting versus participating" issue depends on statutory

interpretation, guided by well-established rules of statutory construction, as promulgated by our

supreme court. Florida's PIP statute has been amended numerous times. See Geico Gen. Ins. Co.

v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 154 (Fla. 2013). In 2012, the Florida Legislature

deleted the words "participating physicians" when referring to the Medicare Part B schedules

for 2007. By deleting "participating" and replacing it with "applicable" the Legislature intended

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to afford PIP insureds greater coverage, requiring insurers to reimburse at the higher limiting

charge.

The Florida PIP Statute states that when insurers limit PIP reimbursement in accordance

with the fee schedule limitations of the PIP statute, the reimbursement may not be less than

2007 Medicare fee schedule. The 2008 version provided:

For purposes of subparagraph 2., the applicable fee schedule or payment
limitation under Medicare is the fee schedule or payment limitation in
effect at the time the services, supplies, or care was rendered and for the
area in which such services were rendered, except that it may not be less
than the allowable amount under the participating physicians
schedule of Medicare Part B for 2007 for medical services, supplies, and
care subject to Medicare Part B.

In 2012, this provision was amended deleting "participating physicians schedule" and

replacing it with "applicable schedule." The 2012 version of section 627.736(5)(a)(2), provides:

For purposes of subparagraph 1., the applicable fee schedule or payment
limitation under Medicare is the fee schedule or payment limitation in
effect on March 1 of the year in which the services, supplies, or care is
rendered and for the area in which such services, supplies, or care is
rendered, and the applicable fee schedule or payment limitation applies
throughout the remainder of that year, notwithstanding any subsequent
change made to the fee schedule or payment limitation, except that it
may not be less than the allowable amount under the applicable
schedule of Medicare Part B for 2007 for medical services, supplies, and
care subject to Medicare Part B.

"As always, legislative intent is the polestar that guides a court's inquiry under the No-

Fault Law," including the PIP statute." Virtual Imaging, 141 So. 3d at 152. 'Such intent is

derived primarily from the language of the statute.' ld. (citations omitted). Importantly, the

Florida Supreme Court has consistently held that "[w]hen the legislature amends a statute by

omitting words, the general rule of construction is to presume that the legislature intended the

statute to have a different meaning from that accorded it before the amendment." See Aetna Cas.

& Sur. Co. v. Buck, 594 So. 2d 280, 283 (Fla. 1992)(citing Capella v. City of Gainesville, 377

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So.2d 658 (Fla.1979) (citing Carlisle v. Game and Fresh Water Fish Commission, 354 So. 2d

362 (Fla.1977); Arnold v. Shumpert, 217 So. 2d 116 (Fla.1968)). "[T]he Legislature must be

assumed to know the meaning of words and to have expressed its intent by the use of the words

found in the statute." Thayer v. State, 335 So. 2d 815 (Fla. 1976). Conversely, "omission of

words in an amending statute suggests that the legislature intended that the statute have a

different meaning from that previously accorded." Spohr v. Berryman, 589 So. 2d 225, 228 (Fla.

1991); see also Publix Supermarkets, Inc. v. Santos, 18 So. 3d 317, 320 (Fla. 3d DCA 2013)

(observing that "when the legislature amends a statute and omits words, the courts must presume

the omission gives the statute a different meaning than its predecessor") (other internal citations

omitted).

Under the rules of statutory construction, Defendant was acting in direct contravention to

the 2012 legislative amendment when it reimbursed Plaintiff at the 2007 participating price

instead of the 2007 limiting charge. Defendant asserts the policy elects the utilization of the

schedule of maximum charges or fee schedules for reimbursements of PIP claims under section

627.736(5)(a) and Plaintiff does not contest this assertion. The Florida PIP Statute further

instructs insurers that while they may limit reimbursement in accordance with the terms of the

statute, the reimbursement may not be less than 2007 Medicare fee schedule. Thus, when an

insurer is reimbursing a charge, the insurer is required to compare the amount for the Medicare

fee schedule in effect at the time the services were rendered (in this case, 2016) with the

applicable schedule for 2007- and the insurer must pay the higher of the two. Fla. Stat. § 627.736

(5)(a)(2) (2012).

Here, Defendant was required to compare reimbursements under three possible Medicare

Part B schedules:

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(1) the 2016 (year of rendered services) Medicare Participating Physicians Fee Schedule;

(2) the 2007 Medicare Participating Physicians Fee Schedule; and

(3) the 2007 Medicare Limiting Charge Fee Schedule.

Because the 2007 Medicare Fee Schedules were higher than the 2016 Medicare Fee Schedules,

Defendant was left with two possible available Medicare Part B fee schedule choices for

reimbursement: participating or limiting charge. After comparing the "applicable schedule of

Medicare Part B for 2007'' based on the strict construction of the statute, Defendant reimbursed

at the middle amount of the applicable fee schedules of Medicare Part B - - the 2007 non-facility

participating charge. Chiropractic & Acupuncture Med. Center (Sabrina Nguyen) v. State Farm

Mut. Auto. Ins. Co., Case No. 18- 6336 SC (Fla. Pinellas County Ct. Aug. 28, 2019) (Carassas,

J.); Accu-Med Diagnostic Centers (a/a/o Neill Lopez) v. State Farm Mut. Auto. Ins. Co., Case

No. 14-004705 COSO (Fla. Broward County Ct. Mar. 15, 2019) (Fry, J.); MDM Chiropractic

Center (a/a/o Renal Thermidor) v. State Farm Mut. Auto. Ins. Co., Case No. 18-001551-XXXX-

MB (Fla. Palm Beach County Ct., Mar. 6, 2019) (Gillman, J.).

This construction of the 2012 legislative amendment is consistent with the whole of the

PIP statute. The Legislature did not remove every reference to "participating" from the 2012 PIP

statute. Rather, it only removed "participating" where it referred to the applicable fee schedule

for Medicare Part B for 2007 - - the very provision which requires that insurers afford higher

coverage. The amendment, in this statutory context, and given the well-established rules of

construction for Florida's No-Fault Statute, requires that Defendant reimburse at the higher

limiting charge.

"When interpreting the provisions of the No-Fault Law, the Florida Supreme Court has

explained that the statutes 'must be liberally construed in order to effect the legislative purpose of

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providing broad PIP coverage for Florida motorists." Progressive Select Ins. Co. v. Florida

Hospital Med. Ctr., 236 So. 3d 1186, 1187 (Fla. 5th DCA 2018), aff'd Progressive Select Ins.

Co. v. Florida Hospital Med. Crt., 260 So. 3d 219 (Fla. 20 18)( citing Blish v. Atlanta Cas. Co.,

736 So. 2d 1151, 1155 (Fla. 1999), and Vasques v. Mercury Cas. Co., 947 So. 2d 1265, 1269

(Fla. 5th DCA 2007)). "[W]ords must be given their plain meaning and statutes, should be

construed to give them their full effect ... and [w]here possible, it is the duty of courts to adopt

that construction of a statutory provision which harmonizes and reconciles it with the other

provisions of the same act." See Kingsway Amigo Ins. Co. v. Ocean Health Inc., 63 So. 3d 63,

66-67 (Fla. 4th DCA 2011) (citing Jones v. State, 966 So. 2d 319, 326 (Fla. 2007), Knowles v.

Beverly Enter.-Fla , Inc., 898 So. 2d 1, 9 (Fla. 2004) (internal quotation omitted)).

The statutory language requiring that reimbursement under the fee schedule could not be

less than 2007 Medicare Part B increases the coverage limitation amounts insurers could apply.

As previously mentioned, the legislative amendment of removing the word "participating," in the

very provision of the PIP statute which expands reimbursement of medical expenses under the

fee schedules expands the fee schedules that insurers are to consider. And so, in construing that

provision as amended, it is appropriate to construe it to provide for greater coverage, following

the Florida Supreme Court's pronouncement that the PIP statute is to be liberally construed to

effect the legislative purpose of providing broad coverage. Under section (5)(a)2, the insurer is

required to reimburse medical expenses using the 2007 schedule of Medicare Part B, if the 2007

amount is greater. See Fla. Stat. § 627.736(5)(a)2 (amount "may not be less than the allowable

amount under the applicable schedule of Medicare Part B for 2007 for medical services")

(emphasis added). By reimbursing medical providers at the 2007 limiting charge, Defendant

afforded the greatest coverage to its insured and gave effect to the legislature's deletion of the

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words "participating physician," thereby reconciling and giving effect to the other provisions of

the same statutory paragraph and the legislative purpose to provide broad PIP coverage to

Florida motorists.

(b) Defendant's Positions Regarding Limiting Fee Schedule is Contradicted by
the CMS, the Third District Court of Appeal, and the PIP Statute.

Defendant will argue that Defendant's reimbursement of participating charge was

appropriate because the limiting charge is not mentioned anywhere in the PIP statute. Defendant

will further maintain that that the 2007 limiting charge is not a recognized basis for

reimbursement of PIP claims in Florida, because the only reference to any particular fee schedule

under Medicare Part B is to the participating fee schedule. Defendant's argument is contradicted

by the Center for Medicare and Medicaid Services, by the Third District Court of Appeal, and

the PIP Statute.

i. Defendant's Argument is Contradicted by the CMS.

The Center for Medicare & Medicaid Services promulgates the Medicare Part B Fee

Schedules. There is no dispute that the website www.cms.gov provides a searchable tool to

access allowable amounts under the Medicare Physician Fee Schedule ("MPFS"). When

searching the applicable physician fee schedules herein, CMS clearly provides both participating

and limiting as "Physician Fee Schedule Search." Therefore, the limiting charge is a part of

Medicare Part B.

ii. Defendant's Argument is Contradicted by Third District Court of Appeal.

The Third District Court of Appeal in Millennium Diagnostic Imaging Center v. Security

National Insurance Company, 882 So. 2d 1027 (Fla. 3d DCA 2004), addressed the limiting

versus participating issue under a previous version of the statute, which will be discussed in more

detail below. However, for the purpose of whether the limiting charge is part of Medicare Part B,

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the Third District discussed that "allowable amount" could potentially mean the highest of the

three available "participating," "nonparticipating," or "limiting charge" Medicare Part B rate

schedules. 882 So. 2d at 1028. See also, Priority Medical Centers, LLC (a/a/o Susan

Boggiardino) v. Allstate Insurance Company, Florida 3rd District Court of Appeal; Case # 3D20-

291 (April 28, 2021).

iii. The Limiting Charge is Florida's No-Fault Statute Fee Schedule.

Prior to 2012, the PIP statute mandated that an insurer may not pay "less than the

allowable amount under the participating physicians schedule of Medicare Part B for 2007 for

medical services, supplies, and care subject to Medicare Part B." Therefore, in the previous

version of the statute (2008-2011), the insurer was required to reimburse under the participating

physicians schedule, not any other fee schedule of Medicare Part B, such as the limiting charge.

By deleting the words "participating physicians" and replacing them with "applicable schedule"

the Legislature encompassed all applicable fee schedules of Medicare part B. The amendment

expanded further the statutory provision that affords greater coverage ''for medical services,

supplies, and care subject to Medicare Part B." If the Legislature had intended to limit the

reimbursement to the "participating," this last clause would have been deleted, because it would

contradict the restrictive reading that "applicable schedule" refers only to the "participating" fee

schedule. See Priority Medical Centers, LLC (a/a/o Susan Boggiardino) v. Allstate Insurance

Company, Florida 3rd District Court of Appeal; Case # 3D20-291 (April 28, 2021).

The limiting charge is part of Medicare Part B. The specific statutory provision at issue

refers to reimbursement rates for medical services, supplies and care subject to Medicare Part B.

Thus, the limiting charge is within that reference in Florida's PIP Statute

(c) Millennium Diagnostic Imaging Ctr. v. Sec. Nat. Ins. Co., 882 So. 2d 1027
(Fla. 3d DCA 2004), is misconstrued and actually supports Plaintiff's statutory

5/10/2021 6:37 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 13
construction.

Defendant will cite Millennium Diagnostic in support of its position that an insurer is

required to pay the non-facility price (participating) of Medicare Part B. Millennium Diagnostic

held that the participating fee schedule was the proper fee schedule payable to MRI providers

under a 2001 version of the PIP statute based on the Legislature's addition of the word

"participating" in a clarifying amendment. In its discussion, that Court specifically noted that

"limiting" was an available Medicare Part B fee schedule. 882. So. 2d at 1028.

Importantly, Millennium Diagnostic supports Plaintiff’s position that the legislative

amendment removing the word "participating physicians" in reference to the fee schedules of

Medicare Part B reverts to the analysis of the "limiting versus participating" issue and requires

courts to consider the highest of the three available schedules of Medicare Part B. Id. In

Millennium, the plaintiff/provider was arguing that the limiting charge, i.e., the highest of the

three available fee schedules of Medicare Part B, was the appropriate reimbursement level for

MRI providers. After the trial court entered its order, the Legislature amended section 627.

736(5)(b)5 to explicitly provide that the "participating physician fee schedule" controls the

amounts payable to MRl providers. The Third District held that "we believe that the amendment

was enacted as a clarification of the legislature's intent on what an 'allowable amount' would be."

882 So. 2d at 1030. Given the Third District's reasoning, this Court must give effect to the

Legislature's removal of the words "participating physicians" and reverting back to the highest of

the three possible Medicare Fee Schedules the Millennium Diagnostic court considered. Under

the current version of the PIP statute, and giving effect to the 2012 legislative amendment, the

highest reimbursement allowable fee schedule of Medicare Part B is the limiting charge.

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VI. Conclusion

Defendant failed to comply with section 627.736(5)(a), Florida Statutes (2012-2019), the

legislative purpose of the PIP statute to provide broad coverage to Florida motorists, and give

effect to the Legislature's deletion of the word "participating." Payment of the 2007 limiting

charge is the only reasonable outcome of the limiting versus participating issue. Therefore,

incorrectly paying the participating charge, Defendant underpaid Plaintiff. Accordingly, Plaintiff

deserves a judgment in its favor as a matter of law.

WHEREFORE, Plaintiff, Diagnostic Imaging Consultants of St. Petersburg, P.A. d/b/a

Diagnostic Imaging Consultants, respectfully requests that this Court grant partial summary

judgment in favor of Plaintiff and award such other and further relief as this Court deems just

and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the forgoing was served via Florida’s
E-Filing Portal on, James E. Peterson, Esq., tampapip@farmersinsurance.com, Law Offices of
Sanabria & Marsh - PIP Unit, P.O. Box 258829, Oklahoma City, OK 73125-8829 on May 10, 2021.

Lorca J. Divale, FBN 0173622
THE PHYSICIAN COLLECTIONS GROUP, P.A.
701 S. Howard Ave., Ste 106-391
Tampa, FL 33606
Tel: (813) 600-3029; Email: lorcadlg@gmail.com
COUNSEL FOR THE PLAINTIFF

5/10/2021 6:37 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 15

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Bagge-Hernandez, Michael. C Track Judge’s New Case

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Motion,Ex Parte: Diagnostic Imaging Consultants Of St. Petersburg, P.A.,Warncke, Robert vs 21St Century Centennial Insurance Company

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