PARIENTE, J.
The issue presented to the Court is whether the Medicare fee schedules set forth in section 627.736(5)(a), Florida Statutes (2008), authorized an insurer to limit reimbursements for medical services rendered to an insured without giving notice in the insurance policy of the insurer's election to use the Medicare fee schedules as the basis for calculating reimbursements.
Because the Third District determined that this issue was recurring statewide with respect to personal injury protection (PIP) policies issued after January 1, 2008, the district court certified a question of great public importance to this Court.
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
For the reasons more fully explained below, we agree with all of the appellate court decisions that have addressed this issue, and we therefore answer the rephrased certified question in the negative. We conclude that notice to the insured, through an election in the policy, is necessary because the PIP statute, section 627.736, requires the insurer to pay for "reasonable expenses ... for medically necessary ... services," § 627.736(1)(a), Fla. Stat., but merely permits the insurer to use the Medicare fee schedules as a basis for limiting reimbursements, see § 627.736(5)(a)2., Fla. Stat. In other words, the PIP statute provides that the Medicare fee schedules are one possible method of calculating reimbursements to satisfy the PIP statute's reasonable medical expenses coverage mandate, but does not provide that they are the only method of doing so.
Accordingly, we conclude that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements. We therefore approve the result of the Third District's decision in Virtual II and approve the district court decisions in Kingsway, Virtual I, and DCI MRI to the extent those decisions are consistent with our analysis. Because the GEICO policy has since been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements, and the Legislature has now specifically incorporated a notice requirement into the PIP statute, effective July 1, 2012, see § 627.736(5)(a)5., Fla. Stat. (2012),
This case arises out of a motor vehicle accident that occurred on September 4, 2008. As a result of injuries sustained in the accident, the insured sought medical services, in the form of two MRIs, from
The relevant portions of the GEICO insurance policy at issue provide that GEICO will make payments as follows:
The policy defines the term "medical expenses" to mean "reasonable expenses for medically necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and rehabilitative services for prosthetic devices and for necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person."
Virtual Imaging billed GEICO $3600 for the two MRIs it provided to the insured. GEICO has stipulated that the MRIs were medically necessary, related to the accident, and covered as PIP benefits under the terms of the insured's policy with GEICO. GEICO has also agreed, in this case, not to challenge Virtual Imaging's claim that its $3600 charge for the MRIs was reasonable. Additionally, there is no dispute that Virtual Imaging submitted the charges to GEICO in a timely manner and that all statutory and contractual prerequisites for payment were met.
In response to the $3600 charges submitted by Virtual Imaging, GEICO paid the bill on December 14, 2008, but limited its reimbursement to eighty percent of 200% of the applicable Medicare fee schedule, in accordance with the formula described in section 627.736(5)(a), Florida Statutes, which provides as follows:
§ 627.736(5)(a), Fla. Stat. (2008) (emphasis supplied). This statutory provision permitting GEICO and other insurers to limit reimbursements based on the Medicare fee schedules was passed by the Legislature in 2007 and became effective, in its initial form, on January 1, 2008, as part of Florida's PIP statute. See ch.2007-324, § 20,
Virtual Imaging, as the assignee of PIP benefits under the insured's policy, subsequently sued GEICO in county court, alleging that GEICO's reimbursement was insufficient and failed to satisfy the full amount of PIP insurance benefits due to Virtual Imaging under its assignment of benefits in the insured's policy. After the parties stipulated to the basic facts and filed cross motions for summary judgment, the county court issued an order granting Virtual Imaging's motion for final summary judgment and certifying the following question to the Third District:
On appeal and in reliance on its previous decision in Virtual I, the Third District affirmed the county court's order. Virtual II, 90 So.3d at 323-24. The Third District then certified a question of great public importance to this Court regarding an insurer's ability to limit reimbursements for medical services based on the Medicare fee schedules for PIP policies issued after January 1, 2008, absent notice to the insured through a specific election of the Medicare fee schedules in the policy. Id. at 324.
We begin our analysis with an overview of the history of Florida's PIP statute. Then, with this background established, we turn to a closer examination of the 2008 amendments to the PIP statute and determine what effect those amendments had on an insurer's ability to limit reimbursements. Finally, we address the insurance policy governing this case. Because the question presented requires this Court to interpret provisions of the Florida Motor Vehicle No-Fault Law — specifically, the PIP statute — as well as to interpret the insurance policy, our standard of review is de novo. Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 331 (Fla.2007); Auto-Owners Ins. Co. v. Pozzi Window Co., 984 So.2d 1241, 1246 (Fla. 2008).
The 2008 amendments to the PIP statute, portions of which are the focus of this case, represent another revision in a series of legislative changes to Florida's statutory no-fault insurance scheme. In 1971, the Florida Legislature enacted the no-fault scheme, including the PIP statute. See ch. 71-252, §§ 1, 7, Laws of Fla. Since the PIP statute was first enacted in 1971, the Legislature has amended the statute numerous times, including every year between 1987 and 1999, and again every year between 2003 and 2009.
The No-Fault Law's stated purpose is "to provide for medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits." See § 627.731, Fla. Stat. (2008). The PIP statute, codified in section 627.736, is "an integral part of the no-fault statutory scheme." Flores v. Allstate Ins.
Since its inception in 1971, the PIP statute has required insurers to provide coverage for reasonable expenses for necessary medical services. See § 627.736(1)(a), Fla. Stat. (1971).
For example, in 2001, the Legislature instituted specific fee schedules for determining the amount a provider could bill an insurer for certain services, such as MRIs. See ch.2001-271, § 6, Laws of Fla. In particular, as part of its 2001 amendments to the PIP statute, the Legislature enacted a fee schedule stating that, beginning November 1, 2001, "allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B." § 627.736(5)(b)5., Fla. Stat. (2001) (emphasis supplied).
Subsequently, in 2003, the Legislature provided that the PIP statute would sunset, or automatically terminate, effective October 1, 2007, unless the provisions were reenacted. See ch.2003-411, § 19, Laws of Fla. During the 2007 legislative session, the Legislature revived and readopted the PIP statute, effective January 1, 2008. See ch.2007-324, § 13, Laws of Fla. The MRI-specific fee schedule language referenced above was in effect until the Legislature's 2008 amendments to the PIP statute, which were adopted during the 2007 legislative session in which the PIP statute was revived. The 2008 amendments removed this MRI-specific language, replacing it with a more general provision permitting insurers to limit reimbursement for medical services beginning January 1, 2008, in accordance with the Medicare fee schedules.
The 2008 amendments provided, in part, more specific guidelines regarding a PIP insurer's ability to limit reimbursements.
In addition, after the dispute over the 2008 amendments arose, the Legislature amended the PIP statute to include a specific requirement that insurers notify their policyholders at the time of issuance or renewal of the insurer's election to limit payment pursuant to the fee schedules set forth in the PIP statute. This 2012 amendment provided as follows:
§ 627.736(5)(a)5., Fla. Stat. (2012) (emphasis supplied). We turn next to a closer examination of the effect of the 2008 amendments on an insurer's ability to limit reimbursements prior to the Legislature's 2012 amendment.
"As always, legislative intent is the polestar that guides a court's inquiry under the No-Fault Law," including the PIP statute. Holy Cross, 961 So.2d at 334. "Such intent is derived primarily from the language of the statute." Id. "Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law." United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001).
The PIP statute requires — and has required since its inception — insurers to provide coverage for reasonable expenses for necessary medical services. In this respect, the 2008 statute provided in pertinent part as follows:
§ 627.736, Fla. Stat. (2008) (emphasis supplied). Accordingly, the PIP statute sets forth a basic coverage mandate: every PIP insurer is required to — that is, the insurer "shall" — reimburse eighty percent of reasonable expenses for medically necessary services. This provision is the heart of the PIP statute's coverage requirements. The question raised in a PIP dispute therefore often becomes how the insurer and the medical services provider will determine what constitutes a reasonable expense.
On this point, the 2008 PIP statute, as amended and effective July 1, 2008, provided as follows:
§ 627.736, Fla. Stat. (2008) (emphasis supplied). Accordingly, in determining whether a provider's charge for a particular service is reasonable, "consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community," as well as "various federal and state medical fee schedules" and "other information relevant to the reasonableness of the reimbursement." § 627.736(5)(a)1., Fla. Stat. In other words, pursuant to subsection (5)(a)1. of the PIP statute, reasonableness
Subsection (5)(a)2. of the statute, however, provides an alternative mechanism for determining reasonableness: by reference to the Medicare fee schedules. This provision, adopted in the 2008 amendments, states that an insurer "may limit reimbursement" for certain services rendered, such as MRIs, to "200 percent of the allowable amount under the participating physicians schedule of Medicare Part B." § 627.736(5)(a)2.f., Fla. Stat. (emphasis supplied). The dispute in this case centers around GEICO's reliance on subsection (5)(a)2. to limit reimbursements without providing notice in its policy of its election to do so.
Specifically, GEICO takes the position that, pursuant to the 2008 amendments to the PIP statute, it was permitted to limit reimbursements in accordance with the Medicare fee schedules because the Medicare fee schedules represent the Legislature's determination, consistent with the cost-cutting intent of the 2008 amendments, of the proper way to determine the reasonableness of a medical expense. In other words, GEICO contends that there are not two methodologies for determining reasonableness. Four district courts of appeal cases, however, have all concluded the opposite; that is, that there are two methodologies. See Virtual II, 90 So.3d at 323; DCI MRI, 79 So.3d at 842; Virtual I, 79 So.3d at 57-58; Kingsway, 63 So.3d at 67. We agree with the district court decisions in this line of cases and conclude that the 2008 amendments provided an alternative, permissive way for an insurer to calculate reimbursements to satisfy the PIP statute's reasonable medical expenses coverage mandate, but did not set forth the only methodology for doing so.
The 2008 fee schedule amendments used the word "may" to describe an insurer's ability to limit reimbursements based on the Medicare fee schedules. See § 627.736(5)(a)2., Fla. Stat. As the Third District observed in Virtual I, if an insurer is not required to use the Medicare fee schedules as a method of calculating reimbursements, the insurer must have "recourse to some alternative means for determining a reimbursement amount" if it chooses not to use the Medicare fee schedules. Virtual I, 79 So.3d at 58; see also Kingsway, 63 So.3d at 67 (stating that the 2008 amendments plainly allow an insurer "to choose between two different payment calculation methodology options" based on the Legislature's use of the word "may," which "indicates that this option choice is not mandatory").
This alternative calculation mechanism is the same mechanism that was in place before the Legislature amended the PIP statute to incorporate the Medicare fee schedules: in the event of a dispute, a fact-finder must determine whether the amount billed was reasonable. The permissive language of the 2008 amendments, therefore, plainly demonstrates that there are two different methodologies for calculating reimbursements to satisfy the PIP statute's reasonable medical expenses coverage mandate. See Kingsway, 63 So.3d at 67.
Further, the language used by the Legislature in the 2008 amendments differed from the language in the 2001 MRI-specific amendments to the PIP statute, in effect from November 1, 2001, until the PIP statute sunsetted on October 1, 2007. The MRI-specific language, as amended in 2003, provided that "allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B."
Accordingly, we conclude that the 2008 amendments were clearly permissive and offered insurers a choice in dealing with their insureds as to whether to limit reimbursements based on the Medicare fee schedules or whether to continue to determine the reasonableness of provider charges for necessary medical services rendered to a PIP insured based on the factors enumerated in section 627.736(5)(a)1. In other words, we do not conclude that payment under section 627.736(5)(a)2. could never satisfy the PIP statute's basic "reasonable expenses" coverage mandate, set forth in section 627.736(1).
Rather, GEICO primarily argues that its policy incorporated the PIP statute, and therefore it had no separate obligation to notify its insureds in the policy of its intention to limit reimbursements in accordance with the statutorily authorized Medicare fee schedules. Because this argument requires an interplay between the statutory scheme and the policy, we turn next to an analysis of the policy provisions.
When "interpreting an insurance contract," this Court is "bound by the plain meaning of the contract's text." State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569 (Fla.2011). "If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written." Id. at 569-70 (quoting Travelers Indem. Co. v. PCR, Inc., 889 So.2d 779, 785 (Fla.2004)); see also U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007) (stating that insurance contracts are construed according to their plain meaning). Further, in order for an exclusion or limitation in a policy to be enforceable, the insurer must clearly and unambiguously draft a policy provision to achieve that result. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 36 (Fla.2000).
The applicable policy provisions in this case provide that GEICO will make payments as follows:
The GEICO policy does not include any reference to the Medicare fee schedules, but simply states that GEICO will pay "80% of medical expenses," which it defines as "reasonable expenses for medically necessary ... services."
We conclude that because the policy did not reference the permissive Medicare fee schedule method of calculating reasonable medical expenses, GEICO was not permitted to limit reimbursements in accordance with the Medicare fee schedules.
This is because a policy election gives notice to the insured — and to the provider who renders service based on an assignment of benefits in the insured's policy — regarding the amount of PIP coverage the insurer will provide. Judge Gross cogently articulated this reasoning in Kingsway as follows:
Id. at 67.
Based on the reasoning explained in Kingsway, we reject GEICO's argument that it was permitted to calculate reimbursements in accordance with the Medicare fee schedules because the 2008 amendments were incorporated into its policy. GEICO offers two rationales in support of its incorporation argument. First, GEICO contends that the fee schedules were incorporated in its policy through reference in the policy itself, which states that reimbursements will be made "in accordance with the Florida Motor Vehicle No-Fault Law, as amended." Second, GEICO contends that the 2008 amendments were incorporated by law into the policy through section 627.7407(2), which provides as follows:
§ 627.7407(2), Fla. Stat. (2008).
We disagree and adopt the reasoning set forth by the Fourth District in Kingsway. Because the fee schedule provision of section
Subsection 5 of section 627.736(5)(a), Florida Statutes (2008), further supports this conclusion. That provision of the PIP statute states as follows:
§ 627.736(5)(a)5., Fla. Stat. (2008) (emphasis supplied). The Legislature's use of the conditional word "[i]f" in this statutory provision to describe an insurer's ability to limit reimbursements in accordance with the Medicare fee schedules indicates that an insurer is not required to use those schedules. As the Fourth District explained in Kingsway, 63 So.3d at 67, the language in section 627.736(5)(a)5. "anticipates that an insurer will make a choice." Accordingly, even if the Medicare fee schedules are incorporated into the insured's policy, neither the insured nor the provider knows, without the policy providing notice by electing the Medicare fee schedules, that the insurer will limit reimbursements.
Finally, we reject GEICO's reliance on this Court's decision in Holy Cross, 961 So.2d at 335, as support for its argument that it could limit reimbursements without providing notice through an election in its policy. In Holy Cross, this Court held that an insurer could, consistent with the PIP statute, reimburse PIP benefits at a reduced rate where the medical provider contractually agreed to accept the reduced payment. Id. at 336. In other words, our holding in Holy Cross was premised on the existence of an agreement between the insurer and the medical provider in that case. Id.
Contrary to the argument advanced by GEICO, Holy Cross does not stand for the proposition that notice is not required in the policy. Instead, Holy Cross merely indicates one particular way an insurer can limit reimbursements: by entering into a contract with the provider. As we stated in that case, "the effect of such contractual agreements would be to predetermine what constitutes a `reasonable expense' for a covered service." Id.
There is no such agreement to predetermine the amount of reimbursement in this case. Unlike in Holy Cross, GEICO did not indicate in any way in its policy that it intended to limit its reimbursement to a predetermined amount of set reasonable medical expenses. As the Florida Medical Association (FMA) pointed out in its amicus curiae brief filed with this Court, this is of particular concern to health care providers, who render services to PIP insureds in reliance on the terms of the insured's policy. Further, as the FMA also noted, GEICO's justification for its decision to reimburse at reduced rates
For the reasons expressed above, we hold that under the 2008 amendments to the PIP statute, a PIP insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy. Because the policy in this case did not reference the permissive method of calculation based on the Medicare fee schedules, GEICO could not limit its reimbursement based on those fee schedules. Accordingly, we adopt the reasoning of the Fourth District in Kingsway, answer the rephrased certified question in the negative, approve the result of the Third District's decision in Virtual II, and approve the district court decisions in Kingsway, Virtual I, and DCI MRI to the extent those decisions are consistent with this opinion.
It is so ordered.
CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.
CANADY, J., dissenting.
I would answer the rephrased certified question in the affirmative, quash the decision on review, and disapprove DCI MRI, Inc. v. Geico Indemnity Co., 79 So.3d 840 (Fla. 4th DCA 2012); Geico Indemnity Co. v. Virtual Imaging Services, Inc. (Virtual I), 79 So.3d 55 (Fla. 3d DCA 2011); and Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011). Accordingly, I dissent.
The view adopted by the majority and the district courts rests on the interpretive fallacy that sections 627.736(5)(a)1 and 627.736(5)(a)2, Florida Statutes (2008), respectively establish mutually exclusive payment methodologies. This reading of the statute effectively detaches section 627.736(5)(a)2 from the foundational provision regarding medical benefits in section 627.736(1)(a), which requires payment of "[e]ighty percent of all reasonable expenses for medically necessary" services. Under the majority's reading of the statute, reimbursement in accordance with section 627.736(5)(a)2 does not constitute reimbursement based on "reasonable expenses" and thus does not meet the basic requirement of section 627.736(1), unless the relevant policy specifically incorporates the provisions of section 627.7365(a)(2). This reading should be rejected because it is inconsistent with the unambiguous and unconditional authorization contained in section 627.736(5)(a)2. Contrary to the majority's view, section 627.736(5)(a)2 should be read as a safe harbor under which payment made in accordance with its provisions constitutes payment that satisfies both the requirement of section 627.736(1) for reimbursement based on "reasonable expenses" and the policy requirement for payment of eighty percent of medical expenses in accordance with the terms of the Florida Motor Vehicle No-Fault Law, §§ 627.730-627.7405, Fla. Stat. (2008).
The majority relies on Kingsway's dichotomy between section 627.736(1)(a) and section 627.736(5)(a)1, on the one hand, and section 627.736(5)(a)2, on the other hand. The majority adopts the reasoning of Kingsway that sections 627.736(1)(a) and 627.736(5)(a)1 contain "the only payment methodology referenced" in a policy defining "medical expenses as those that [the insurer] is required to pay `that are reasonable expenses for medically necessary
Nothing in the statute suggests that an insurer must make a one-time election between section 627.736(5)(a)1 and section 627.736(5)(a)2. Nor does anything in the statute suggest that section 627.736(5)(a)2 is operative only if it is specifically referred to in the text of the relevant policy. Payment in accordance with section 627.736(5)(a)2 is entirely consistent with the applicable policy provision here that the insurer "will pay, in accordance with, and subject to the terms, conditions, and exclusions of the Florida Motor Vehicle No-Fault Law, as amended, to or for the benefit of the injured person ... 80% of medical expenses."
POLSTON, C.J., concurs.
Virtual II, 90 So.3d at 324.