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You Just Can’t Win in PIP: The Challenges of the
Limiting Charge Issue

April 21, 2021 | Michael A. Rosenberg

On March 16, 2021, the Third District Court of Appeal, in Priority Medical Center, LLC v. Allstate Insurance Company, No. 3D20-291 (Fla. 3d DCA), entertained oral argument on an issue that will affect every Florida PIP insurer. The issue of whether a PIP insurer is required to reimburse a MRI charge at the 2007 non-facility limiting rate or at the 2007 non-facility participating rate will finally be decided.

Insurers have faced increasing lawsuits where a provider argues either: (1) benefits were improperly exhausted because the insurer should have reimbursed a CPT code at the 2007 non-facility participating charge and not the 2007 non-facility limiting charge rate; or (2) additional benefits are owed because the insurer should have reimbursed a CPT code at the 2007 non-facility limiting charge rate and not the non-facility participating charge. While the narrowly tailored certified question of great public importance did not address these more global exhaustion issues facing the insurance industry, the court’s opinion will undoubtedly provide a roadmap of what amount of reimbursement is proper.

Priority Medical filed an action for declaratory relief, seeking a declaration that Allstate should have reimbursed a MRI provider at 200% of the 2007 Non-Facility Participating Charge. In processing the reimbursement, Allstate followed its methodology and reimbursed the MRI provider at 200% of the 2007 Non-Facility Limiting Charge. The difference in the reimbursement amounts are as follows:
— CPT Code: 72148
— Charged Amount: $1,600.00
— 200% of the 2016 Non-Facility Participating Charge (Year of Service): $464.18
— 200% of the 2007 Non-Facility Participating Charge: $1,140.92
— 200% of the 2007 Non-Facility Limiting Charge: $1,246.46

Priority Medical argues that by utilizing the 2007 non-facility participating schedule price, there would have been an additional $105.54 remaining in benefits for it to be paid. The trial court determined that Allstate correctly applied the 2007 limiting charge in reimbursing the MRI provider because section 627.736(5)(a)(2) required the insurer to compare the service-year under the Medicare fee schedule to the applicable schedule for 2007 and to reimburse the higher of the two amounts. The trial court also determined that reimbursing under the higher limiting charge was consistent with binding precedent that affords the broadest PIP coverage for Florida motorists.

Who is right? Only time will tell. At issue is the legal significance of the Florida legislature’s decision to amend the PIP statute in 2012 to remove the phrase “participating physicians” from the prior version of section 627.736(5)(a)(3), Florida Statutes (2012), to say “allowable amount under the applicable schedule of Medicare Part B for 2007.” At oral argument, the court focused on the meaning of the word “applicable” as a modifier to “schedule of Medicare Part B for 2007.” The probing questions by the court gave no indication as to how it may ultimately rule, although the court questioned whether Allstate was correct that “applicable” meant using the higher of the two 2007 reimbursement amounts (i.e., the “maximum charge”).

The oral argument may be viewed at:

No matter what happens, litigation is bound to continue after the court’s opinion. CSK has a robust PIP litigation and PIP appellate department prepared to offer you guidance and defense to the limiting charge issue. Please contact Greg Willis or Michael Rosenberg for additional information and assistance.

Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.

About the author

Michael A. Rosenberg


Mr. Rosenberg is a partner in the Fort Lauderdale West Office.  He practices in the areas of appellate litigation and trial support. Before coming to CSK, Mr. Rosenberg worked for the Seventeenth Judicial Circuit Court (Broward County) as a Supervising[...] Read more

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