        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
                        Appellant,

                                     v.

                   DELRAY MEDICAL CENTER, INC.,
                            Appellee.

                              No. 4D14-2287

                           [November 4, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 50-2012-
CA022717XXXXMB.

  Kenneth P. Hazouri of de Beaubien, Knight, Simmons, Mantzaris &
Neal, LLP, Orlando, for appellant.

   Robert S. Covitz of Falk, Waas, Hernandez, Cortina, Solomon & Bonner,
P.A., Coral Gables, for appellee.

LEVINE, J.

    State Farm appeals the dismissal of its petition seeking discovery from
Delray Medical Center pursuant to Florida’s PIP statutes. We are asked to
determine whether section 627.736 permits State Farm to request
discovery about the reasonableness of charges by Delray Medical,
including discovery regarding the amount others paid to Delray Medical
for the same services and treatments. We find that discovery is limited
under section 627.736(6)(b) to the facts of the treatment and to the related
billing of the injured person. We further find that section 627.736(5) is
inapplicable to discovery sought under section 627.736(6)(b). We therefore
find the trial court did not err in denying State Farm’s amended petition
for discovery. We further find no merit in the argument that the trial court
erred in not taking judicial notice of a cost report submitted to the Agency
for Health Care Administration.

   Delray Medical, after treating two of State Farm’s insureds, sought PIP
payments from State Farm. In response, State Farm sent Delray Medical
two letters requesting documentation and information to assist in
determining the reasonableness of the billed charges, pursuant to section
627.736(6)(b), Florida Statutes (2012).       State Farm questioned the
reasonableness of the charges, since the charges were significantly higher
than what is allowable under Medicare billing rates. State Farm attached
to the letters twenty-three discovery requests. After Delray Medical
provided only some of the requested documentation, State Farm filed a
petition and motion for discovery pursuant to section 627.736(6)(c),
Florida Statutes (2012), alleging that Delray Medical charged significantly
more than the Medicare reimbursement rate.

   Delray Medical filed objections and moved for a protective order. In
response, State Farm filed a new production request in which it limited its
prior requests for production to the following documents:

      COST OF TREATMENT

         1. A statement of your best estimate of the cost to your
            facility for each line item associated with the specific
            health care goods and services at issue (whether based
            on cost-accounting data, budgeting allocations, or
            otherwise).

         2. The most recent Medicare Cost Report you submitted to
            the Centers for Medicare and Medicaid Services (CMS).

      PAYMENTS ACCEPTED BY THE PROVIDER

         3. For each good and service reflected on the bills at issue,
            documentation (whether physical documents or a
            printout from your electronic records) showing the
            actual amounts you accepted as payment in full for the
            same care from other payers in the 3 months
            immediately preceding the dates of service for the bills
            at issue, broken down by the following categories:

               a. Medicare,

               b. Medicaid,

               c. Worker’s compensation,

               d. Commercial insurers,

               e. Uninsured patients, and

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               f. Any other payments

      [This request is intended to allow State Farm to compare the
      amounts you accepted as full payment from others to the
      amounts you billed State Farm for the same health care
      provided to our insureds. Therefore, please do not provide
      aggregate totals. Instead, please identify either your average
      acceptance rates for each type of payer for each of the CPT
      codes at issue, or the actual payments accepted from each
      payer itemized by CPT code for the goods and services
      rendered.]

         4. All contracts you had in force at the time you provided
            the health care goods and services at issue, by which
            you agreed to accept an amount less than your “usual
            and customary” billed charges from commercial
            insurers.

         5. Your most recent financial statements submitted to
            Florida’s Agency for Health Care Administration (AHCA)
            which details gross charge revenues and contractual
            allowances and other revenue adjustments.

      REIMBURSEMENT RATES IN THE COMMUNITY

         6. Any     information     you     have  showing    actual
            reimbursement rates in your community (i.e., amounts
            actually accepted by other hospitals in full payment for
            billed charges) for the health care goods and services
            reflected on the bills at issue.

   The trial court denied the petition without prejudice for failure to show
good cause. State Farm then filed an amended petition and motion for
discovery, which contained similar allegations to the original petition. In
addition, State Farm alleged that Delray Medical charged more than other
hospitals and that a report from the Agency for Health Care Administration
showed that Delray Medical’s actual reimbursement rate was significantly
less than the amount charged. State Farm asked the court to take judicial
notice of the report.

   The trial court denied the amended petition, finding that State Farm
did not demonstrate good cause under section 627.736(6)(c). The court
also found the request to be “overbroad” and “extremely far-reaching.” The

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court declined State Farm’s request to take judicial notice of the report
and stated that, even considering the report, the court’s findings and
ruling would not be different.

   Section 627.736(6), Florida Statutes (2012), provides in pertinent part:

      (6) Discovery of facts about an injured person; disputes.--

         ....

      (b) Every physician, hospital, clinic, or other medical
      institution providing, before or after bodily injury upon which
      a claim for personal injury protection insurance benefits is
      based, any products, services, or accommodations in relation
      to that or any other injury, or in relation to a condition claimed
      to be connected with that or any other injury, shall, if
      requested to do so by the insurer against whom the claim has
      been made, furnish forthwith a written report of the history,
      condition, treatment, dates, and costs of such treatment of the
      injured person and why the items identified by the insurer were
      reasonable in amount and medically necessary, together with
      a sworn statement that the treatment or services rendered
      were reasonable and necessary with respect to the bodily
      injury sustained and identifying which portion of the expenses
      for such treatment or services was incurred as a result of such
      bodily injury, and produce forthwith, and permit the
      inspection and copying of, his or her or its records regarding
      such history, condition, treatment, dates, and costs of
      treatment . . . . Any insurer that requests documentation or
      information pertaining to reasonableness of charges or
      medical necessity under this paragraph without a reasonable
      basis for such requests as a general business practice is
      engaging in an unfair trade practice under the insurance
      code.

      (c) In the event of any dispute regarding an insurer’s right to
      discovery of facts under this section, the insurer may petition
      a court of competent jurisdiction to enter an order permitting
      such discovery. The order may be made only on motion for
      good cause shown . . . . Such court may, in order to protect
      against annoyance, embarrassment, or oppression, as justice
      requires, enter an order refusing discovery or specifying
      conditions of discovery . . . .


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(emphasis added).

    State Farm asks us to interpret this statute to allow for the discovery
of those documents that will determine, according to State Farm, whether
the billing is reasonable when one considers the allowable charge under
Medicare. Further, State Farm wants to compare what Delray Medical has
negotiated with private insurance companies to determine reasonableness.
This is beyond the plain language of the statute, and specifically section
627.736(6)(b).

    Initially, State Farm’s interpretation is contrary to the title of subsection
(6). Subsection (6) is entitled “[d]iscovery of facts about an injured person;
disputes.” “The descriptive title of a statute in enacting legislation is an
indicator of legislative intent.” City of Fort Pierce v. Shannon R. Ginn
Constr. Co., 705 So. 2d 934, 936 (Fla. 4th DCA 1997). See also Fla. Dep’t
of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1266 (Fla.
2008) (“To discern legislative intent, courts must consider the statute as a
whole, including the evil to be corrected, the language, title, and history of
its enactment, and the state of law already in existence on the statute.”)
(citation omitted); 1A Sutherland Statutory Construction §§ 21:4, 47:14
(7th ed.) (noting that a section heading illuminates legislative intent).
From the title of subsection (6), we know that the discovery of documents
will center on the facts regarding the injured person.

   State Farm’s interpretation is also contrary to the plain language of
subsection (6)(b). Specifically, subsection (6)(b) states that providers, like
Delray Medical, must

      if requested to do so by the insurer against whom the claim
      has been made, furnish forthwith a written report of the
      history, condition, treatment, dates, and costs of such
      treatment of the injured person and why the items identified by
      the insurer were reasonable in amount and medically
      necessary, together with a sworn statement that the
      treatment or services rendered were reasonable and necessary
      with respect to the bodily injury sustained and identifying
      which portion of the expenses for such treatment or services
      was incurred as a result of such bodily injury.

(emphasis added). Based on the plain language of this subsection, as well
as the title of the subsection, it is clear that the focus of this provision is
the discovery of documents regarding the treatment and related billing of
the individual injured person.


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    This court in Kaminester v. State Farm Mutual Automobile Insurance
Co., 775 So. 2d 981 (Fla. 4th DCA 2000), examined the parameters of
section 627.736(6)(b). In Kaminester, a health care provider refused the
insurer’s request for the invoice for an MRI. The provider claimed that
there was no invoice from the MRI facility, since the provider leased the
equipment used to provide the service in question. Further, the provider
claimed that the terms of the lease were between the provider and the
owner of the MRI equipment, and the lease was not discoverable under
section 627.736(6). This court found the MRI lease agreement was
discoverable under the statute since the “lease is well within the meaning
of the statutory discovery provision ‘the costs of such treatment.’” Id. at
985. This court concluded that good cause, as required under the statute,
was established because the provider refused to “supply anything”
regarding the MRI lease. Id. at 986.

    However, it is clear that Kaminester is different than the case at bar.
Here, Delray Medical did provide bills and records relating to the insured,
unlike Kaminester, where the provider refused to “supply anything.” More
importantly, the documentation sought in Kaminester was directly related
to treatments and services provided to the injured party, unlike here where
State Farm sought information regarding amounts paid by others.

   State Farm Mutual Automobile Insurance Co. v. Goldstein, 798 So. 2d
807 (Fla. 4th DCA 2001), also examined the parameters of section
627.736(6)(b). In that case, the court found good cause was shown where
the insureds provided sworn statements denying that they had received
health care for which the health care providers were seeking payment.
Unlike Goldstein, this case does not involve a situation where the insureds
denied receiving the health care for which Delray Medical sought payment.
Further, Goldstein involved discovery about services allegedly provided to
the injured, not to others.

   State Farm also relies on section 627.736(5) in arguing that its
discovery was permissible because that subsection mandates that medical
providers may charge only a reasonable amount for services rendered.
Section 627.736(5) provides, in pertinent part:

      (5) Charges for treatment of injured persons.--

      (a) 1. Any physician, hospital, clinic, or other person or
      institution lawfully rendering treatment to an injured person
      for a bodily injury covered by personal injury protection
      insurance may charge the insurer and injured party only a
      reasonable amount pursuant to this section for the services

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      and supplies rendered . . . . In no event, however, may such a
      charge be in excess of the amount the person or institution
      customarily charges for like services or supplies. With respect
      to a determination of whether a charge for a particular service,
      treatment, or otherwise 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 and various
      federal and state medical fee schedules applicable to
      automobile and other insurance coverages, and other
      information relevant to the reasonableness of the
      reimbursement for the service, treatment, or supply.

(emphasis added).

   As to the interplay between section 627.736(5) and section 627.736(6),
Shands Jacksonville Medical Center, Inc. v. State Farm Mutual Automobile
Insurance Co., 40 Fla. L. Weekly D1447 (Fla. 1st DCA June 22, 2015), is
instructive.1 In that case, State Farm sent requests for information
including the discovery of confidential contracts between the hospital and
thirty-seven health insurance entities. State Farm sought the discovery of
these confidential contracts “because they contain[ed] information
regarding negotiated reimbursement rates that Shands agreed to accept
for services and supplies rendered on behalf of each entity’s insureds.
State Farm argue[d] that this information [was] necessary in order for it to
determine if the amounts billed by Shands [were] reasonable.” Id. at
D1447. Shands refused to provide the third party contracts with the
medical insurers because the contracts contained the confidential
negotiated discounts from what it charges other third parties. The court
in Shands concluded that discovery under section 627.736(6) applied
“only to the types of information a healthcare provider is required to
provide as delineated in section 627.736(6).” Id. at D1448. The court
explained:

          It seems clear to us, therefore, that the “section” referred
      to in subsection (6)(c) is in fact a reference to subsection (6),
      not the entirety of section 627.736. Subsection (6), unlike

1 In Shands, the First District certified conflict with our court’s decision in
Kaminester, on the limited issue of whether Shands could be required to produce
a designated corporate representative for deposition, and whether the “discovery
methods provided for in the Florida Rules of Civil Procedure are available to
insurers that institute proceedings pursuant to that statute.” Our decision here
does not implicate that conflict as certified by the First District in Shands.

                                       7
         subsection (5)(a), specifically provides that a PIP insurer is
         entitled to “Discovery of Facts About an Injured Person,” and
         subsection (6)(b) delineates the specific types of information
         (facts) and documentation to which a PIP insurer is entitled to
         receive from medical providers in analyzing the payment of
         claims. Furthermore, the title to subsection (6) also indicates
         that it addresses “Disputes.” Accordingly, subsection (6)(c)
         begins with the phrase: “In the event of a dispute regarding
         an insurer’s right to discovery of facts under this section . . .,”
         which clearly applies to disputes related to an insurer’s
         attempt to obtain the information and documentation relating
         to the treatment and associated costs of treatment to an
         injured insured specified in subsection (6).

             Thus, subsection (6)(b) concerns the types of facts and
         documents to which a PIP insurer is entitled to assist it in
         ascertaining the reasonableness of the treatment provided to
         its insured and the amount the medical provider charged for
         that care. Subsection (5)(a), on the other hand, addresses the
         factors, or “types of evidence,” relevant to the reasonableness
         of a medical provider’s charges. These factors, however, are
         implicated when there is a dispute as to the reasonableness
         of charges for treatment, not when there is a dispute
         concerning an insurer’s attempt to obtain the information it is
         entitled to so that it can assess the reasonableness of those
         charges.

Id.

    We agree with the reasoning of Shands that section 627.736(5) is
inapplicable, as it does not apply to discovery requests under section
627.736(6)(b). Although the documents State Farm sought may have been
“relevant and discoverable in the context of litigation over the issue of
reasonableness of charges instituted pursuant to subsection (5)(a), they
are clearly not the types of documents specifically delineated by subsection
(6)(b).” Id.

   In summary, we find that the trial court correctly determined State
Farm’s request exceeded the permissible scope of discovery as allowable
under the applicable statute. Accordingly, we affirm.

      Affirmed.

STEVENSON and KLINGENSMITH, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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