17 Fla. L. Weekly Supp. 1247a
Online Reference: FLWSUPP 1712APONInsurance — Personal injury protection — Coverage — Medical expenses — National Correct Coding Initiative edits, which bar physicians from administering certain services to patient on same day, are utilization limitations prohibited by PIP statute
FRIEDMAN CHIROPRACTIC CENTER, (a/a/o Noemi Aponte-Ali), Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 09-04700 SP 26 (04). September 1, 2010. Honorable Gloria Gonzalez-Meyer, Judge. Counsel: Zachary A. Hicks, Samole, Berger & Hicks, P.A., Miami, for Plaintiff. Mark Rose, Roig, Rosenberg & Zlotnick, P.A., Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE, having come before this Court upon Plaintiff’s Motion for Summary Judgment, and the Court having heard the argument of the parties on September 1, 2010, it is hereby:
CONSIDERED, ORDERED, and ADJUDGED
1. Plaintiff treated Noemi Aponte-Ali for her personal injuries which she sustained in an automobile accident which occurred on January 12, 2009. Noemi Aponte-Ali was insured by State Farm Mutual Automobile Insurance Company under policy number D97211659. Noemi Aponte-Ali assigned her insurance benefits to the Plaintiff. Plaintiff provided chiropractic and therapeutic services to Noemi Aponte-Ali on January 13, 2010, the only date of service at issue in this lawsuit. The Defendant reduced Plaintiff’s charges to 200 percent of the Medicare Part B fee schedule and failed to make any payments for CPT code 99203, for dates of service January 13, 2009.
2. In support of Plaintiff’s Motion for Summary Judgment, Plaintiff has filed the affidavits of Garry Friedman, D.C. and Noemi Aponte-Ali. In his affidavit, Dr. Friedman details his initial contact, examination, diagnosis, and treatment protocol of Noemi Aponte-Ali. Dr. Friedman asserts in his affidavit that it is his opinion within a reasonable degree of medical certainty that the chiropractic, diagnostic and therapeutic care and treatment received by Noemi Aponte-Ali from himself and Friedman Chiropractic Center, P.A. on January 13, 2009, was medically reasonable, necessary, and related to the injuries Noemi Aponte-Ali sustained in her January 12, 2009 automobile collision. Dr. Friedman further asserts in his affidavit that it is his opinion within a reasonable degree of medical certainty, that the initial examination (CPT code 99203) as well as physical therapy modalities, including chiropractic manipulation (CPT code 98940), manual traction (CPT code 97012), hot pack (CPT code 97010), electric muscle stimulation (CPT code G0283), ultrasound (CPT code 97035) and myofascial release (CPT code 97140*59), performed on date of service January 13, 2009, was medically necessary, reasonable, and related to the injuries that Noemi Aponte-Ali sustained in her January 13, 2009 collision. The Court finds that the Plaintiff has satisfied its burden of production as to the issues of reasonableness, relation, and necessity.
3. The Court now addresses the affidavit filed in opposition by the Defendant. The Defendant submitted the affidavit of Denisha Torres Lich, who possesses a specialized knowledge of coding pursuant to AMA guidelines. Ms. Torres-Lich opined that Dr. Friedman improperly unbundled CPT Code 99203 separately from CPT Code 98940, and that these codes cannot be billed on the same day based upon Medicare’s National Correct Coding Initiative.
4. The Defendant has not filed any evidence in opposition to the issues of reasonableness, relation, and necessity. Therefore, based on the affidavits of Dr. Friedman and Noemi Aponte-Ali, summary judgment is granted in favor of Plaintiff on the issues of reasonableness, relation, and necessity.
5. Florida Statute § 627.736(5)(A)(2)(f) provides a permissive reimbursement scheme, under which an insurer may limit reimbursement to “80 percent of 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B” or “if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation.”
6. The CPT code at issue in this case, 99203, are reimbursable under the applicable Medicare Part B fee schedule.
7. The Court must now address whether it was permissible for State Farm to deny payment on recognizable CPT codes under the Medicare part B fee schedule. State Farm argues that such limitations are permissible pursuant to the NCCI edits and such limitations are payment limitations. This Court disagrees. This Court determines that NCCI limitations which prohibit physicians from administering certain services to a patient on the same day are clearly utilization limitations.
8. The current PIP Statute clearly prohibits insurers from applying “any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation.” Legislative intent is the polestar by which a court must be guided in interpreting the provisions of the law. In ascertaining the legislative intent, a court must consider the plain language of the state, give effect to all statutory provisions, and construe related provisions in harmony with one another. Florida Department of Revenue v. New Sea Escape Cruise, Ltd., 894 So. 2d 954 (Fla. 2005). If the Court was to accept the Defendant’s argument that utilization limits are solely how many times a service can be provided, the Statute would become redundant. The Court believes this would not be a logical intent of the Legislature. Therefore, based upon the aforementioned findings, Plaintiffs Motion for Summary Judgment is hereby granted as to Defendant’s First Affirmative Defense.
9. In accordance with this Order Granting Plaintiff’s Motion for Summary Judgment, Defendant, State Farm Mutual Automobile Insurance Company, shall pay the Plaintiff, Friedman Chiropractic Center, P.A., the sum of 120.00 in benefits and $13.23 in interest for a total recovery of $133.23, that shall bear interest at the rate of 6% per year, for which let execution issue. Additionally, this Court holds that Plaintiff, as the prevailing party to Count I of its Complaint is entitled to its reasonable attorney’s fees under Florida Statute § 627.428 and Florida Statute § 627.736(8) and costs pursuant to Fla. Stat. § 92.231 and Fla. Stat. § 57.041. This Court retains jurisdiction over this matter to determine the amount of attorney’s fees owed to the Plaintiff by the Defendant.
