Third District Court of Appeal Issues Important Ruling on Determining the Proper Medicare Fee Schedule for Purpose of PIP Reimbursement
On April 28, 2021, Florida’s Third District Court of Appeal issued its opinion in Priority Medical Center, LLC. a/a/o Susan Boggiardino v. Allstate No. 3D20-291. In Priority, the Court addressed whether the non-facility participating price or the non-facility limiting charge was the applicable fee schedule for Medicare Part B for 2007, for purposes for PIP reimbursement under the Schedule of Maximum Charges. The Court held the higher 2007 non-facility limiting charge was the proper reimbursement rate, affirming the lower court’s decision.
In Priority, the provider sought to determine the meaning of the phrase, “allowable amount under the applicable schedule of Medicare B for 2007..” as described in 627.736(5)(a)2. The provider asserted that Allstate improperly exhausted benefits by paying the higher non-facility limiting charge rather than the non-facility participating charge to another provider, which, Priority claim, resulted in its being underpaid because the policy limits were exhausted. In its opinion, the Court reasoned that when the legislature changed to the relevant statutory language in 627.736(5)(a)2 from “participating physician” to “applicable schedule”, it intended a different meaning from pre-2012 versions of the statute. The Court found that cases interpreting the pre-2012 amendment language did not apply to the current PIP/Medicare statutory language and that under the current version of the PIP statute, the insurer was required to base its reimbursement at the highest reimbursement allowable under the fee schedule of Medicare Part B for 2007, namely, the 2007 non-facility limiting charge.
It is important to note this same issue is currently before the Fifth District Court of Appeal, Emery Medical Solutions, Inc. a/a/o Melissa Dressler v. Progressive Select Insurance Company, 5D21-104. Oral argument is currently set for May 13, 2021.