17 Fla. L. Weekly Supp. 590a
Online Reference: FLWSUPP 1707LOBIInsurance — Personal injury protection — Coverage — Medical expenses — CPT coding — 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 day 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
PETER J. DORAN, D.C., P.A., (a/a/o Jaime Lo Bianco), Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-09341 SP 26 (04). Civil Division. April 5, 2010. Gloria Gonzalez-Meyer, Judge. Counsel: Martin I. Berger, Samole, Berger & Hicks, P.A., for Plaintiff. David Bender, Matt Hellman, 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 Motion for Summary Judgment, and the Court having heard the argument of the parties on March 23, 2010, it is hereby:
CONSIDERED, ORDERED, and ADJUDGED
1. Plaintiff treated Jaime Lo Bianco for her personal injuries which she sustained in an automobile accident which occurred on July 9, 2008. LoBianco was insured by State Farm Mutual Automobile Insurance Company under policy number 015446859. LoBianco assigned her insurance benefits to the Plaintiff who provided chiropractic services on October 17, 2008, November 7, 2008, December 8, 2008, February 25, 2009, and March 2, 2009. The Defendant failed to pay for CPT code 97124 which is the subject of this litigation.
2. In support of Plaintiff’s Motion for Summary Judgment, Plaintiff has filed the affidavit of Peter J. Doran, D.C. In his affidavit, Dr. Doran details his initial contact, examination, diagnosis, and treatment protocol of Jaime LoBianco. He further asserts in his affidavit that it is his opinion within a reasonable degree of chiropractic certainty, that the use of CPT code 97124 on October 17, 2008, November 7, 2008, December 8, 2008, February 25, 2009, and March 2, 2009 was medically necessary, reasonable, and related to the injuries that she sustained in her July 9, 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 Defendant has not filed any evidence in opposition to the issues of reasonableness, relation, and necessity. Therefore, based on the affidavit of Dr. Doran, summary judgment is granted in favor of Plaintiff on the issues of reasonableness, relation, and necessity.
4. The Court now addresses the affidavit filed in opposition by the Defendant. The Defendant submitted the affidavit of Nicole Bonaparte, a Certified Professional Coder who possesses a specialized knowledge of coding pursuant to AMA guidelines. Ms. Bonaparte opined that Dr. Doran improperly unbundled CPT Code 97124 separately from CPT Code 97140 and that these codes cannot be billed on the same day based upon Medicare’s National Correct Coding Initiative.
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, 97124, is 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 diagrees. 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, Plaintiff’s Motion for Summary Judgment is hereby granted as to Defendant’s First and Second Affirmative Defenses.
9. Defendant has withdrawn its Third Affirmative Defense regarding Disclosure & Acknowledgment Form.
10. Defendant’s Fourth Affirmative Defense is moot based on this Court March 23, 2010 Order denying Defendant’s Motion to Transfer Venue.
11. In accordance with this Order Granting Plaintiff’s Motion for Summary Judgment, Defendant, State Farm Mutual Automobile Insurance Company, shall pay the Plaintiff, Peter J. Doran, D.C., P.A., the sum of $172.80 in benefits and $16.93 in interest for a total recovery of $189.73, 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.
