17 Fla. L. Weekly Supp. 1235a

Online Reference: FLWSUPP 1712DWFI

Insurance — Personal injury protection — Coverage — Medical expenses — CPT coding — National Correct Coding Initiative — PIP statute does not permit insurer to rely on NCCI edits to bar claim — Insurer may, nonetheless, raise affirmative defense of unbundling of CPT codes as this raises issue of medical necessity — Where there exists genuine issue of material fact as to whether treatment involved circumstances in which unbundling is appropriate, summary judgment on unbundling issue is precluded

DWFII CORPORATION d/b/a FALLS CHIROPRACTIC HEALTH CENTER a/a/o Keyla Rodriguez, Plaintiff vs. STATE FARM AND CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-244 SP 26 (02). July 28, 2010. Gladys Perez, Judge.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, IN PART, AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on July 13, 2010, for hearing on the parties’ cross motions for summary judgment. The Court, having reviewed the motions and entire Court file, heard arguments of counsel, reviewed relevant legal authority, and otherwise advised in the premises, makes the following findings of fact and conclusions of law:

Findings of Fact:

The material facts in this case are not in dispute. Keyla Rodriguez was involved in a motor vehicle accident on June 15, 2009, while a passenger in a vehicle insured by State Farm and Casualty Company, the Defendant. The policy in effect provided for personal injury protection (“PIP”) coverage under the Florida No-Fault Statute. Ms. Rodriguez received treatment from Plaintiff, Chiropractic Health Center. Defendant refused to pay for charges relating to CPT Code 97124, asserting two affirmative defenses. The first affirmative defense presents the argument that Plaintiff is barred from receiving payment for CPT Code 97124, because the National Correct Coding Initiative (“NCCI”) disallows the code. The second affirmative defense presents an issue of “unbundling,” asserting that the Plaintiff is barred from receiving payment for CPT Code 97124, because it has been unbundled from CPT Code 97140. Each defense is addressed below.

Standard

Summary judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “In reviewing a summary judgment, this Court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party.’ Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a] (quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001)) [26 Fla. L. Weekly D577a]. ‘When the nonmoving party has raised affirmative defenses, it is incumbent upon the moving party to disprove the affirmative defenses or establish their legal insufficiency.’ Id. (citing Parker v. Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983) (quoting Proprietors Ins. Co. v. Siegel, 410 So. 2d 993, 995 (Fla. 3d DCA 1982)).

Conclusions of Law:

First Affirmative Defense — NCCI

Both parties agree that the issue of whether an insurer may apply the NCCI guidelines in adjusting PIP claims is a pure question of law for this Court’s determination. That question must be answered solely by reference to the statutory language. Thus, it is helpful to recite the rules of statutory interpretation:

Before resorting to the rules of statutory interpretation, courts must first look to the actual language of the statute itself. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000) [25 Fla. L. Weekly S641a]; accord BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003) [28 Fla. L. Weekly S775b] . . .When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002) [27 Fla. L. Weekly S379a]. In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. See State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) [29 Fla. L. Weekly S149a]. When the statutory language is clear, “courts have no occasion to resort to rules of construction-they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996) [21 Fla. L. Weekly S96a].

See Koile v. State 934 So.2d 1226, 1230 -1231 (Fla. 2006) [31 Fla. L. Weekly S501a].

Applying the plain meaning rule in this case, the Court finds that Florida’s No-Fault Statute does not permit an insurer to rely on NCCI coding pairs to bar a claim — the statute unambiguously refers to, and only to, Medicare Part B’s“participating physicians schedule.” Consequently, this Court is compelled by well-established rules of statutory construction to interpret the PIP Statute as only incorporating the schedule specifically identified therein, not some entirely separate and distinct guideline promulgated by a federal agency for assistance in barring Medicare claims.

In 2008, the Florida Legislature amended subsection (5)(a)(2)(f) and (5)(a)(3) of section 627.736 to allow insurers to limit Personal Injury Protection (PIP) reimbursement to 80% of 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. The statute further allows the insurer to limit non-reimbursable charges under Medicare Part B to 80% of the “maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.”

“In January of 1996, the Centers for Medicare & Medicaid Services (CMS) implemented the National Correct Coding Initiative (CCI). This initiative was developed to promote correct coding of health care services by providers and to prevent Medicare payment for improperly coded services. NCCI consists of automatic edits provided to the carriers to evaluate claim submissions when a provider bills more than one service for the same beneficiary on the same date of service.” Medicare’s National Correct Coding Initiative, Department of Health and Human Services, Office of the Inspector General (Sept. 2003). The CMS is also the federal agency in charge of administering the Medicare program, and it updates and approves the physicians schedule annually. See 42 U.S.C. § 1395w-4(b)(1). The NCCI is a separate schedule from the participating physicians schedule, and the fact that Medicare employs the NCCI to bar payments for services provided on the same day, does not, in absence of statutory language to the contrary, lead to the conclusion that a private insurer may limit a claim based upon the NCCI.

Any limitations permitted under Florida’s PIP statute are expressly contained therein, specifically in section 627.736(5)(a)2.(a)-(f) and 3.-5. The statute permits limiting reimbursement to participating physicians schedule of Medicare Part B. Nowhere in the amended PIP statute does the legislature permit the use of any other schedule, government or otherwise, which Medicare considers in further limiting its claims. The claims at issue under section 627.736, Florida Statutes, are not Medicare claims part of a government run program. Rather, they are the result of private insurance. The administering of Medicare and its handling of claims may not be superimposed on Florida’s No-Fault law, in absence of statutory language to that effect. And, the Legislature has specifically written this principle into the statute.

In section 627.736(5)(a)(4) the Legislature recognizes that Medicare uses a variety of guides to limit payments and forbids their application in PIP cases :

Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation. An insurer that applies the allowable payment limitations of subparagraph 2. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider would be entitled to reimbursement under Medicare due to restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.

(Emphasis added).

In essence, PIP claims are not to be adjusted as if they were Medicare claims. To hold otherwise would be to render the language “under the participating physicians fee schedule ” superfluous. See All Family Clinic of Daytona Beach v. State Farm Mutual Auto. Ins. Co., 685 F. Supp. 2d 1297 (S.D. Fla. 2010) [22 Fla. L. Weekly Fed. D352a] (quoting Millennium Diagnostic Imaging Ctr., Inc. v. Sec. Nat’l Ins. Co., 882 So. 2d 1027, 1029-30 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1817b] (finding that the amendment to the Florida No-Fault Statute, which added “participating physician fee schedule,” clarified the term “allowable amount”)). “As one court noted, ‘The Florida Legislature specifically employed the definite article ‘the allowable amount’ rather than ‘a’ or ‘any’ allowable amount. The most sensible reading of the phrase ‘the allowable amount’ suggests that the [L]egislature intended for a specific Medicare schedule to be incorporated into the PIP statute, rather than either, any, or all of the schedules.’ Id. (citations omitted). Consequently, while an insurer may limit reimbursement to 80% of 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B, no other sources of limitations are permissible under Florida’s No Fault law.

Accordingly, Plaintiff’s motion for summary judgment is granted as to the application of the NCCI edits.

Second Affirmative Defense — Unbundling.

Defendant, in its second affirmative defense, raises the issue of unbundling and asserts that the Plaintiff is barred from receiving payment for CPT Code 97124 because it has been unbundled from CPT Code 97140.

“Unbundling” is defined as an action that submits a billing code that is properly billed under one billing code, but was separated into two or more billing codes, and results in payment of greater amount than would be paid using one code. § 627.732(15), Florida Statutes. Section 627.736(5)(a)5.e. provides:

e. For any treatment or service that is upcoded, or that is unbundled when such treatment or services should be bundled, in accordance with paragraph (d). To facilitate prompt payment of lawful services, an insurer may change codes that it determines to have been improperly or incorrectly upcoded or unbundled, and may make payment based on the changed codes, without affecting the right of the provider to dispute the change by the insurer, provided that before doing so, the insurer must contact the health care provider and discuss the reasons for the insurer’s change and the health care provider’s reason for the coding, or make a reasonable good faith effort to do so, as documented in the insurer’s file;

(Emphasis added).

While the issue of unbundling may be properly decided via summary judgment, it is generally a factual determination. In this case, there exists a genuine issue of material fact, permitting the Defendant to go forward with its affirmative defense. Under certain circumstances, it is appropriate to bill two CPT Codes for the same patient on the same day. If, for instance, the patient’s injuries encompassed different regions of the body. See generally State Farm Mutual Auto. Ins. Co. &. State Farm Fire and Casualty Co. v. Chiropractic One, Inc., 16 Fla. L. Weekly Supp. 315a (Fla. 9th Jud. Cir. Feb. 10, 2009). The statute permits the insurer to change unbundled codes; it also allows the provider to dispute the change made by the insurer. Here, the Defendant denied the CPT codes at issue, relying solely upon the NCCI edits. Although, as previously found, an insurer may not rely upon the NCCI to bar PIP claims, the insurer may raise a defense of unbundling, as this raises an issue of medical necessity. In absence of a finding as a matter of law that all of the treatment rendered to Ms. Rodriguez was reasonable, related, and necessary, this Court is precluded from granting a summary judgment with regard to unbundling.

Accordingly, it is ORDERED and ADJUDGED, that Plaintiff’s Motion for Summary Judgment is hereby GRANTED, in part; Defendant’s Motion for Summary Judgment is hereby DENIED.