16 Fla. L. Weekly Supp. 1161d
Online Reference: FLWSUPP 1612VILS
Insurance — Personal injury protection — Coverage — Medicare Part A fee schedule — Where Medicare fee schedule entirely excludes payment for medically necessary service, insurer is nonetheless obligated to pay for that service by use of other fee determinations provided by PIP law, such as usual and customary charges or workers’ compensation fee schedule
ADVANCED CHIROPRACTIC AND MEDICAL CENTER (a/a/o Sidoles Vilsinnor), Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17295 COCE (53). August 27, 2009. Robert W. Lee, Judge. Counsel: Kelly Arias, Miami Lakes, for Plaintiff. Fernando Roig, Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on August 21, 2009 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Background: This case involves a relatively narrow issue: whether a provider may challenge the underlying Medicare Part A fee schedule when an insurer elects to use Medicare Part A fee schedules as a basis to pay PIP claims as permitted by Florida Statute §627.736(5)(a)(2)(e) (2008). In this case, State Farm has paid all the provider’s claims except for those involving two CPT codes. The parties agree that under Medicare Part A fee schedules, CPT code 971401 may not be billed the same day as CPT code 97124.2 The Defendant argues that under Medicare schedules, these two CPT codes cannot be unbundled unless the treatment occurs on different days. The provider, by affidavit, asserts in essence, that the Medicare schedule is simply wrong, because the two codes as billed in this case apply to completely separate modalities affecting different areas of the body. The provider’s argument is supported by the Florida worker’s compensation schedules, which do entitle a provider to bill separately for both codes on the same day. The parties agree that this is the only remaining issue in the case, and it is one of law.3
Conclusions of Law. To analyze this issue, the Court initially looks at the controlling language of the statute:
Every insurance policy [. . .] shallprovide personal injury protection [. . .] as follows:
Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental and rehabilitative services, and medically necessary ambulance, hospital, and nursing services.
Fla. Stat. §627.736(1) & (1)(a) (2008) (emphasis added). Therefore, under this statute, if a service is medically necessary, the insurer must pay for it. The statute, however, provides the insurer a range of methods in determining how much to pay for necessary services.
In the instant case, it is undisputed that the providing physician provided two different modalities of treatment which, under reference to usual and customary consideration or worker’s compensation schedules, would generally be billed as two different services. Under the Medicare Part A fee schedules, however, which the insurer has elected to use, a broad brush approach is taken in which providers are never allowed to bill for these two services on the same day. In essence, the Medicare fee schedule makes the billing of the two codes on the same day a per se improper unbundling in all instances. As a result, State Farm takes the position that it does not have to pay for one of the two CPT codes for those days.
Federal agency decisions involving Medicare should generally be deferred to if the decision “can be said to embody a deliberate and considered interpretation of legislative intent.” Zimmer, Inc. v. NuTech Medical, Inc., 54 F. Supp. 2d 850, 856 (N.D. Ind. 1999). The Medicare agency decision in the instant ease (disallowing billing for the two CPT codes on the same day in all instances) cannot be said to embody the intent of the Florida Legislature because: (1) the Medicare agency has nothing to do with implementing the Florida PIP law; and (2) even if it did, the interpretation in this case does not implement the clearly expressed intent of the Florida Legislature that all necessary medical services be paid.
This Court holds that when there is evidence that the Medicare Part A fee schedules exclude payment for a service (as opposed to reducing payment for a service), the insurer is nonetheless obligated to pay for that service by use of other fee determinations provided by the PIP law (i.e., community usual and customary, or other federal or state fee schedules such as worker’s compensation4). Otherwise, the PIP insurer is avoiding its obligation to pay for medically necessary services.5 Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s for Summary Judgment is GRANTED. As the Defendant has stipulated that the question in this case is strictly one of law,6 the Plaintiff is hereby directed to submit a proposed final judgment to the Court, and copied to defense counsel, in conformity to the terms of this Order.
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1Described as “manual therapy techniques (e.g., mobilization/manipulation, manual lymphatic drainage, manual traction) one or more areas.”
2Described as a “therapeutic procedure, one or more areas; massage, including effleurage, petrissage and/or tapotement (stroking, compression, percussion).”
3The Court notes that this case presents a different situation than a Medicare participating provider who may be seeking to collect an amount owed. In such a case, the participating provider elects whether to participate in the program, and is therefore hard pressed to complain about the decisions underlying the creation of the fee schedules. In the PIP arena, however, it is not the provider who elects the Medicare schedules, but rather the insurer, and the provider has no way of knowing which fee method the insurer will elect until after the provider submits a claim.
4See Fla. Stat. §627.736(5)(a)(1) (2008).
5Again, there is no dispute in this case that the provider’s treatment was medically necessary.
6The Court notes that this issue will not necessarily be a question of law in every similar case. To the contrary, unlike the instant case, a defendant insurer may submit an affidavit opposing a provider’s motion for summary judgment, contravening the provider’s factual position that the two CPT codes do not represent an unbundling of services.
