Smedley v. Discount Drug Mart, Inc.

943 N.E.2d 1078, 190 Ohio App. 3d 684
CourtOhio Court of Appeals
DecidedNovember 22, 2010
DocketNo. CA2010-05-010
StatusPublished
Cited by17 cases

This text of 943 N.E.2d 1078 (Smedley v. Discount Drug Mart, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smedley v. Discount Drug Mart, Inc., 943 N.E.2d 1078, 190 Ohio App. 3d 684 (Ohio Ct. App. 2010).

Opinion

Ringland, Judge.

{¶ 1} Defendant-appellant, Discount Drug Mart, Inc., appeals a decision of the Washington Courthouse Municipal Court granting summary judgment in favor of plaintiff-appellee, Clyde Smedley.

{¶ 2} Appellee suffers from arthritis and, as a result, appellee’s doctor advised him to purchase a lift chair. On September 17, 2008, appellee went to the Drug Mart store located in Grove City accompanied by his daughter. Appellee presented a prescription from his physician indicating that he wished to acquire a lift chair. Appellee also indicated that he was a Humana Medicare Gold beneficiary. An associate at the pharmacy showed appellee the various models the store carried. Appellee selected an upholstered living room chair offered for $999.99. According to appellee, he inquired as to whether the chair would be covered by Medicare; and upon leaving the store, he believed that he would be reimbursed for most of the amount he had paid.

{¶ 3} Two days later, appellee returned to the store to pick up the chair. Appellee paid the balance of the purchase price, signed a “Drug Mart Home Health Care New Order Form,” and presented his Humana Medicare insurance card. According to Drug Mart, the store associate who assisted appellee informed him that she “did not know if [Drug Mart] could bill Humana, but that she could try.” Appellee took possession of the chair and departed from the store.

{¶ 4} Drug Mart submitted the claim to appellee’s insurance. Humana processed the claim and issued a check for $330.71 as the amount payable under Medicare for a “lift device.” Per appellee’s plan, he was required to pay a $66.14 deductible/co-pay. As a result, Drug Mart reimbursed $264.57 to appellee. Appellee demanded that Drug Mart reimburse him for the balance of the purchase price, claiming that the Drug Mart associate had told him that Medicare would cover the entire cost of the chair and that he would not have purchased the chair had he known that he would be reimbursed only $264.57. Appellee filed suit against Drug Mart to recoup the balance. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of appellee. Drug Mart appeals, raising two assignments of error. We will combine our discussion of Drug Mart’s assignments of error.

{¶ 5} Assignment of Error No. 1:

[686]*686{¶ 6} “The trial court erred as a matter of law in finding that the transaction between Drug Mart and Smedley was for more than one item.”

{¶ 7} Assignment of Error No. 2:

{¶ 8} “The trial court erred as a matter of law in finding a violation of the Balance Billing Act.”

{¶ 9} In this case, appellee alleged violations of the Ohio Consumer Sales Practices Act and the Balance Billing of Medicare Beneficiaries regulations. The trial court in this case found Drug Mart liable under both theories of relief. The trial court concluded that a “lift chair” is two separate items: a lift device and a chair. The court found that the store should have provided “separate and distinct prices” for each item. Further, the court found that since “the two ‘parts’ of the chair are to be billed as separate items to Medicare, [Drug Mart] had an obligation to bill them as separate items at the time of sale.” Since the store charged a single price for the “separate” items, without disclosing to appellee that he was purchasing separate items, Drug Mart engaged in an unfair or deceptive practice. Moreover, the court concluded that even if the “lift chair” was a single item, Drug Mart violated the balance-billing regulation because it charged appellee more than Medicare would reimburse for the chair.

{¶ 10} Drug Mart challenges the trial court’s decision granting summary judgment in favor of appellee on both the Consumer Sales Practices Act and the balance-billing-regulation claims.

{¶ 11} On appeal, a trial court’s decision granting summary judgment is reviewed de novo. Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296, 708 N.E.2d 285. Summary judgment is proper when there is no genuine issue of material fact remaining for trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can only come to a conclusion adverse to the nonmoving party, construing the evidence most strongly in that party’s favor. See Civ.R. 56(C); see also Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46. The movant bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Once this burden is met, the nonmovant has a reciprocal burden to set forth specific facts showing a genuine issue for trial. Id.

{¶ 12} For the purposes of this matter, “balance billing” refers to “charging or collecting from a medicare beneficiary an amount in excess of the medicare reimbursement rate for medicare-covered services or supplies provided to a medicare beneficiary * * *. ‘Balance billing’ does not include charging or collecting deductibles or coinsurance required by the program.” R.C. 4769.01(B). Ohio’s balance-billing statute states that “[n]o health care practitioner, and no [687]*687person that employs any health care practitioner, shall balance bill for any supplies or service provided to a medicare beneficiary.” R.C. 4769.02. See also Med Flight, Inc. v. Whites, Crawford App. No. 3-04-08, 2004-Ohio-4005, 2004 WL 1717644, ¶ 13.

{¶ 13} Medicare beneficiaries receive coverage for items listed as “durable medical equipment” in the Medicare regulations. See Sections 1395m(a) and 1395x(n), Title 42, U.S.Code. A “lift chair” is not a piece of “durable medical equipment.” Rather, the Medicare regulations provide, “With respect to a seat-lift chair, [the term ‘durable medical equipment’] includes only the seat-lift mechanism and does not include the chair.” Section 1395x(n), Title 42, U.S.Code.

{¶ 14} Since a “lift chair” is not “durable medical equipment,” it is not a “supply or service” provided to a Medicare beneficiary. Med Flight at ¶ 15. As a result, the balance-billing statute does not apply to the lift chair in its entirety. Instead, the balance-billing provisions apply only to the lift mechanism incorporated into the chair. In this case, appellee received coverage in compliance with the Medicare regulations, i.e., he was fully reimbursed for the lift component of the chair, less his deductible. Further, appellee makes no allegation, nor submits any evidence, that he was overcharged or balance-billed for the lift portion of the chair by Drug Mart.

{¶ 15} Moreover, contrary to the trial court’s findings, the purchase of a “lift chair” is not the purchase of two separate and distinct items. Rather, Medicare regulation Section 1395x(n), Title 42, U.S.Code, clearly concedes that purchasing a “seat-lift chair” is a single-item transaction. In enacting the regulations, the legislature recognized that a Medicare beneficiary would purchase a “seat-lift chair” as a fully-assembled single item. Yet, the legislature also concluded that Medicare would cover only the cost of the lift component, while the beneficiary assumes the burden of paying the remainder.

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Bluebook (online)
943 N.E.2d 1078, 190 Ohio App. 3d 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smedley-v-discount-drug-mart-inc-ohioctapp-2010.