17 Fla. L. Weekly Supp. 1245a
Online Reference: FLWSUPP 1712BGOMInsurance — 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
ISOT MEDICAL CENTER, CORPORATION, (a/a/o Bibiana Gomez), 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. 09-02399 SP 26 (02). August 6, 2010. Honorable Gladys Perez, Judge. Counsel: Martin I. Berger, Samole, Berger & Hicks, P.A., Miami, for Plaintiff. Michael Rosenberg, Riog, Titan, Rosenberg & Zlotnick, P.A., Deerfield Beach, for Defendant.
FINAL JUDGMENT
This action, having come before this Court pursuant to this Honorable Court’s Order Granting Plaintiff’s Motion for Final Summary Judgment, and in accordance therewith makes the following findings of facts and conclusions of law:
Findings of Facts
The material facts in this case are not in dispute. Bibiana Gomez was involved in a motor vehicle accident on June 28, 2008, while in a vehicle insured by State Farm Mutual Automobile Insurance Company, the Defendant. The policy in effect provided for personal injury protection (“PIP”) coverage under the Florida No Fault Statute. Ms. Gomez received treatment from Plaintiff, ISOT Medical Center, Corp. Defendant refused to pay for charges relating to CPT Codes 97124 and 97140, asserting one affirmative defense. Defendant’s affirmative defense presents the argument that Plaintiff is barred from receiving payment for CPT Codes 97124 and 97140 because the National Correct Coding Initiative (“NCCI”) disallows the code.
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). “In reviewing a summary judgment, this Court must consider 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)(quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001)). “When the non-moving 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
Both parties agree that the issue of whether an insurer may apply 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, 786 So. 2d 432, 435 (Fla. 2000); accord BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 432, 435 (Fla. 2003) . . .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). In such instance, the statute’s plain 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). 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).
See Koile v. State, 934 So. 2d 1226, 1230-1231 (Fla. 2006).
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 the 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 to 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 (NCCI). 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 to automatic edits provided to the carriers to evaluate claim submissions when a providers bills more than one services for the same beneficiary on the same dates of service.” Medicare’s Nations Correct Coding Initiative, Department of Health and Human Services, Office of the Inspector General (Spt. 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 the 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. Inc. Co., 685 F. Supp. 2d 1297 (S.D. Fla. 2010)(quoting Millennium Diagnostic Imaging Ctr., Inc. v. Sec. Nat’l Ins. Co., 882 So. 2d 1027, 1029-30 (Fla. 3d DCA 2004) (finding that the amendment to the Florida No-Fault Statute, which added “participating physicians 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’ suggest that the [L]egislature intended for a specific Medicare schedule to be incorporated into the PIP statute, rather than either, any, or all 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 source of limitations are permissible under Florida’s No Fault law.
Accordingly, IT IS CONSIDERED, ORDERED, and ADJUDGED that Defendant, State Farm Mutual Automobile Insurance Company, shall pay the Plaintiff, ISOT Medical Center, Corp., the sum of $1,536.86 in benefits and $309.86 in interest for a total recovery of $1.846.72, that shall bear interest at the rate of 6% per a 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.
