April 28, 2023Share
Conflict Alert: 2007 Limiting Charge v. Participating Price
On April 26, 2023, Florida’s Fourth District Court of Appeal reversed its holding in Allstate Fire and Casualty Ins. Co. v. Jeffrey L. Katzell, M.D., P.A., 323 So. 3d 191 (Fla. 4th DCA 2021) and certified conflict with Priority Medical Centers, LLC v. Allstate Insurance Company, 319 So. 3d 724 (Fla. 3d DCA 2021). In an en banc decision issued in Progressive Select Ins. Co. v. In House Diagnostic Services, Inc. a/a/o Darryl Frazier, Case No. 4D21-2581 (Fla. 4th DCA 2023), the Fourth District Court of Appeal re-analyzed its prior analysis regarding which amount should be used when evaluating the 2007 Medicare Part B fee schedule.
In Progressive Select, the insurer argued, “[the] Third District in Priority Medical did not properly consider the nature of the limiting charge under the Medicare program, because such was never analyzed in the case, leading to incorrect decisions in both Priority Medical and Katzell.” The Court explained the concept behind a provider’s acceptance of assignments on Medicare claims as follows:
- If a provider accepts assignments on all Medicare claims, they are reimbursed under the participating physicians fee schedule,
- If they accept an assignment, but do not accept all assignments, the provider is still reimbursed, but under the non-participating physicians’ fee schedule,
- If a provider does not accept an assignment, the provider may charge the insured an additional amount over what Medicare will approve (i.e., the limiting charge). Id. (Emphasis added).
Ultimately, the Fourth District admitted it also only considered the omission of “participating physician fee schedule” in subparagraph 2. in isolation and not the phrase, “applicable fee schedule,” related to its placement in the statute. By doing so, the Court admitted that both the Third and Fourth Districts discounted the importance of the Legislature’s retaining the phrase “participating physician fee schedule” in subparagraph 1.f.(I) and pointed out that “limiting charge” is not mentioned anywhere in the PIP (Personal Injury Protection) statute.
Prior to the decision in Progressive Select, there was binding precedent applicable to all of Florida’s District Courts. However, in the wake of this opinion, Priority Medical binds only courts within the Fourth District to use the limiting charge. Without statewide binding application, Florida’s other districts may utilize the participating price.
The Progressive Select opinion was dense with analysis, providing substantial explanation for the Court’s holding. For further information regarding the Court’s reasoning or guidance on how to apply the Court’s opinion to your pending claim decisions, please contact Catherine Arpen, Esquire, in Kelley Kronenberg’s Jacksonville office.