17 Fla. L. Weekly Supp. 1113a
Online Reference: FLWSUPP 1711PINE
Insurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Reduced fee schedule in 2008 PIP statute providing for payment of 200% of Medicare Part B fee schedule cannot be applied to payment of benefits under policy issued in 2007, prior to effective date of statute — Even if 2008 statute were applicable, insurer cannot deny payment for CPT code recognizable under Medicare Part B fee schedule on grounds that Medicare’s National Correct Coding Initiative provides that code cannot be billed on same date as another code billed by medical provider where PIP statute forbids insurer from applying utilization limits — No merit to argument that NCCI is payment limitation rather than utilization limitation
ISOT MEDICAL CENTER, CORPORATION, (a/a/o Elizabeth Pineda), 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. 08-06789 SP 26 (04). June 1, 2010. Gloria Gonzalez-Meyer, Judge. Counsel: Martin I. Berger, Samole, Berger & Hicks, P.A., Miami, for Plaintiff. Fernando Roig, Roig, Tutan, Rosenberg & Zlotnick, P.A., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE, having come before this Court upon Plaintiff’s Amended Motion for Summary Judgment, and the Court having heard the argument of the parties on June 1, 2010, it is hereby:
CONSIDERED, ORDERED, and ADJUDGED
1. Plaintiff treated Elizabeth Pineda for her personal injuries which she sustained in an automobile accident which occurred on March 16, 2008. Raquel Pena was insured by State Farm Mutual Automobile Insurance Company under policy number 283185959. Elizabeth Pineda was eligible to receive benefits under Ms. Pena’s policy of insurance as a passenger of the motor vehicle involved in the collision. Elizabeth Pineda assigned her insurance benefits to the Plaintiff. Plaintiff provided medical and therapeutic services to Elizabeth Pineda from March 27, 2008 through July 25, 2008. 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 97124, for dates of service 4/7/08; 4/18/08; 4/28/08; 5/1/08; 5/5/08; 5/8/08; 5/12/08; 5/13/08; 5/15/08; 5/20/08; 5/22/08; 5/23/08; 5/27/08; 5/29/08; 5/30/08; 6/2/08; 6/5/08; 6/12/08; 6/17/08; 6/19/08; 6/24/08; 6/26/08; 7/1/08; 7/8/08; 7/15/08; and 7/18/08, and CPT code 97140 for dates of service 5/20/08 and 5/27/08.
2. In support of Plaintiff’s Motion for Summary Judgment, Plaintiff has filed the affidavits of Guido Perez, M.D. and Fernando Perez. In his affidavit, Dr. Perez details his initial contact, examination, diagnosis, and treatment protocol of Elizabeth Pineda. Dr. Perez asserts in his affidavit that it is his opinion within a reasonable degree of medical certainty that the medical, diagnostic and therapeutic care and treatment received by Elizabeth Pineda from himself and ISOT Medical Center, Corporation beginning on March 27, 2008 and continuing through July 25, 2008, was medically reasonable, necessary, and related to the injuries that Elizabeth Pineda sustained in her March 16, 2008 automobile collision. Dr. Perez further asserts in his affidavit that it is his opinion within a reasonable degree of medical certainty, that the use of CPT code 97124 on 4/7/08; 4/18/08; 4/28/08; 5/1/08; 5/5/08; 5/8/08; 5/12/08; 5/13/08; 5/15/08; 5/20/08; 5/22/08; 5/23/08; 5/27/08; 5/29/08; 5/30/08; 6/2/08; 6/5/08; 6/12/08; 6/17/08; 6/19/08; 6/24/08; 6/26/08; 7/1/08; 7/8/08; 7/15/08; and 7/18/08, and CPT code 97140 on 5/20/08 and 5/27/08 was medically necessary, reasonable, aad related to the injuries that Elizabeth Pineda sustained in her March 16, 2008 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 M. Torres-Lich, a Registered Health Information Administrator who possesses a specialized knowledge of coding pursuant to AMA guidelines. Ms. Torres-Lich opined that Dr. Perez improperly unbundled CPT Code 97124 separately from CPT Code 97140, and CPT Code 97140 from CPT Code 97012, 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. Perez and. Fernando Perez, summary judgment is granted in favor of Plaintiff on the issues of reasonableness, relation, and necessity.
5. The insurance policy at issue in this case was effective on September 30, 2007. This is not a gap period policy. Accordingly, Plaintiff asserts that the 2007 PIP Statute applies, which requires Defendant to pay for all services rendered which were reasonable, related, and medically necessary, and not the subsequently enacted 2008 PIP Statute. This Court agrees.
6. The statute in effect at the time the insurance contract is executed governs any issues arising under that contract. Louis R. Menendez v. Progressive Express Ins. Co., 2010 WL 375080 (Fla. 2010) [35 Fla. L. Weekly S522b]; see also Hassen v. State Farm Mut. Auto Ins. Co., 674 So. 2d 106, 108 (Fla. 1996); Lumbermans Mut. Cas. Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983); Med Plus Centers, Inc. a/a/o Nelson Suarez v. Geico General Ins. Co., 17 Fla. L. Weekly Supp. 296a (Broward Cty. Ct. Feb. 1, 2010); MR Services I, LLC d/b/a C &R Imaging of Hollywood a/a/o George Toffani v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 678a (Broward Cty. Ct. Apr. 27, 2009).
7. In Menendez, the Florida Supreme Court held that “even where the legislature has expressly stated that a statute will have retroactive application, the Court will reject such application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty.” Menendez, supra.
8. In this case, Ms. Pineda’s rights vested in 2007 at the time that the contact was executed and Defendant’s payment pursuant to the Medicare Part B fee schedule under the 2008 PIP Statute impairs those rights. The 2008 PIP Statute clearly and unequivically affects the insured’s substantive rights under the contract of insurance and cannot be applied retroactively. Defendant owes the difference between eighty percent of the amount billed by Plaintiff and the amount paid up to the policy limits.
9. Furthermore, even if the 2008 PIP Statute was applicable Defendant is still barred from denying in full CPT codes 97124 and 97140 based on National Correct Coding Initiative edits.
10. 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.”
11. The CPT codes at issue in this case, 97124 and 97140, are reimbursable under the applicable Medicare Part B fee schedule.
12. 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.
13. 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, Plaintiff’s Motion for Summary Judgment is hereby granted as to Defendant’s First and Affirmative Defense.
14. In accordance with this Order Granting Plaintiff’s Motion for Summary Judgment, Defendant, State Farm Mutual Automobile Insurance Company, shall pay the Plaintiff, ISOT Medical Center, Corp., the sum of $4,722.01 in benefits and $927.84 in interest for a total recovery of $5,649.85, 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.
