17 Fla. L. Weekly Supp. 1269a
Online Reference: FLWSUPP 1712CILL
Insurance — Personal injury protection — Coverage — Medical expenses — CPT coding — National Correct Coding Initiative is incorporated in Florida PIP law as part of Medicare pay system — Where medical provider improperly unbundled services when billing, neither insured nor insurer was obligated to pay provider for unbundled amounts
SPACE COAST CORPORATE HEALTH SERVICES & DR. BRADLEY CLOW CHIROPRACTIC (as assignee of Ted Cillis), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2009-SC-054373-XXXX-XX. July 9, 2010. William T. McCluan, Judge. Counsel: Gary Smith, Melbourne. John L. Morrow and Matthew J. Corker, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Orlando, for Defendant.
SUMMARY JUDGMENT FOR DEFENDANT
THIS CAUSE, having come on before this Court on Defendant’s Motion for Summary Judgment on March 1, 2010, and the Court having reviewed the Motion, Applicable Law, and having heard arguments of counsel, finds that there are no material facts in dispute and that Defendant, Sate Farm Mutual Automobile Insurance Company (“State Farm”) is entitled to a Final Judgment as a matter of law.UNDISPUTED FACTS
The Plaintiff, a medical provider, accepted an assignment of benefits from its patient, Ted Cillis (State Farm’s insured), for its treatment and care of Mr. Cillis with regard to an April 29, 2009 motor vehicle accident. The assignment granted to Plaintiff the rights and benefits under State Farm’s policy of Personal Injury Protection (PIP) insurance.
Plaintiff provided medical treatment to State Farm’s insured and thereafter sought reimbursement from State Farm for the service rendered and requested payment for the services from State Farm. Plaintiff billed Defendant for treatment.
On June 8, 2009, Plaintiff billed for services rendered to State Farm’s insured under CPT Code 95851 (Range of motion measurements and report (separate procedure); each extremity (excluding hand) or each trunk section (spine)) and CPT Code 98940 (Chiropractic Manipulative Treatment (CMT); spinal, 1-2 regions). State Farm paid the amount billed for CPT Code 98940 (i.e., the comprehensive code) which included the amount billed for CPT Code 95851 (i.e., the component code). Along with payment for the services rendered on June 8, 2009, State Farm provided Plaintiff with an Explanation of Review as it related to CPT Code 95851, in which State Farm alerted the provider that CPT Code 95851 was flagged by the National Correct Coding Initiative (NCCI) Comprehensive edits database with a superscript of ‘0′, which indicates that the line item is disallowed even if an appropriate NCCI modifier was present. State Farm further advised that the provider was to “[P]lease review the bill to ensure the proper procedure code and modifier were reported.” The Explanation of Review provided, as the source, .
On July 10, 2009, Plaintiff sent a demand letter to State Farm seeking the principal sum of $70.00. The demand letter was received by State Farm on July 15, 2009.
Plaintiff’s Position
Plaintiff argued that the Florida PIP Statute does not authorize the use of the NCCI edits to determine payment on PIP claims; and, that, State Farm’s use of the NCCI edits for a PIP claim for the state of Florida is inappropriate. Further, that State Farm’s argument has no basis in law and ignores the plain language of Fla. Sta. §627.736(5)(a)(4).
Plaintiff stated that Florida Statute §627.736(5)(A)(2)(f) provides a permissive reimbursement scheme, under which an insurer may limit reimbursement of a PIP claim to “80 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.”
It was Plaintiff’s position that the above-cited statute provides a maximum reimbursement level for insurers for all claims arising under the 2008 PIP Statute. For all codes that are recognized by either Medicare Part B or Florida Workers’ Compensation, insurers may limit the amount of reimbursement in accordance with the applicable schedules.
Plaintiff further asserted that State Farm violated the above provision in its reimbursement of Plaintiff’s claims. More specifically, that State Farm denied and failed to make any payments on bills for CPT Code 95851 for date of service June 8, 2009.
Plaintiff also argued that Medicare, in administering its own Medicare Part B Claims, applies numerous different limitations to the claims it receives in an attempt to save the Federal government money. Medicare has instituted limitation guidelines on, among other things, the number of visits patients can make to certain providers, has limited the manner in which providers can utilize their treatments on the same dates of service, and has even limited what types of provides can seek reimbursement under Medicare. Plaintiff argued these limitations are unique to Medicare’s adjustment of Medicare Part B Claims.
Plaintiff set forth that by virtue of application of the NCCI utilization limits in reviewing the provider’s bills in question that the payment method was in direct violation of the 2008 PIP statute. More specifically, Plaintiff asserted that Florida Statute 627.736(5)(A)(4) sets forth in clear detail that insurers are absolutely forbidden to apply any limitation that Medicare uses in adjusting its own claims, other than the use of the Medicare Part B fee schedule. Additionally, Plaintiff argued that Florida insurers are only allowed to use Medicare Part B as a guide for maximum allowable charges and may not use Medicare or its limitations for any other manner in adjusting claims; and, that the legislature of Florida was clear that PIP claims were not to be adjusted as if they were Medicare Claims and that the only permitted use of Medicare is through the permissive use of its fee schedule. As such, Plaintiff asserted that insurers are expressly forbidden from using Medicare limitations such as the NCCI.
Plaintiff alternatively argued that even if State Farm was correct in its argument that the codes at issue are not reimbursable under Medicare Part B, the correct analysis then looks to whether the codes are recognized under Florida’s Workers’ Compensation fee schedules; and, that, a simple review of those schedules shows that the code at issue is so recognized and therefore, should be paid in accordance therewith.
On the issue of unbundling, Plaintiff argued that because State Farm does not possess any knowledge as to how the provider herein performed its services, it is impossible for State Farm to make a determination that two separate and distinct services are in actuality one and the same. Plaintiff asserted that it was plaintiff’s position that one procedure can be performed alone and it is not unbundling. Here it is a separate procedure if the doctor filed a narrative report in support of the specific code. More specifically, Plaintiff asserted that the two codes at issue herein (i.e., 95851 billed with 98940) can be billed on the same date of service for the same patient so long as the provider files a narrative report along with the component procedure (i.e., 95851). By virtue of filing this narrative report, Plaintiff asserts that it (code 95851) is a separate producer and therefore not unbundled. As it is a separate procedure, it cannot be bundled and thus, you must bill for both procedures.
Defendant’s Position
State Farm’s position is that Florida Statutes §627.736(5), “Charges for Treatment of Injured Persons”, incorporates the Medicare Fee Schedules/Guidelines. State Farm asserts that the bills submitted to Defendant for payment should be adjusted in the same manner as if they were being adjusted by the Centers for Medicare and Medicaid Services (CMS), including all provisions of the Medicare benefit policy manuals, with the exception of the two (2) specific exclusions as set forth in 627.736(5)(a)(4). Here, State Farm asserts that the CMS 1500 form was improperly coded in violation of 627.736(5)(d), and therefore, for purposes of paragraph (4)(b), State Farm was not considered to have been furnished with a notice of a covered loss and the amount of the same.
As it relates to Section (5)(a)4 of the PIP Statute; State Farm asserted that the inclusion of this paragraph in the statute excepts out only two (2) sections of the Medicare system that the Florida Legislature did not want to included in Florida Personal Injury Protection Law: (i.e., Fla. Stat. Section 627.736(5)(a)4; subparagraph 2 [1] 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. . .[2] An insurer that applies the allowable payment limitations in 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 limitation on the types of discipline of healthcare providers who may be reimbursed for particular procedures or procedure codes.”) In essence, the Florida Legislature adopted the Medicare pay system and excluded out only those two sections that they did not want to apply to Florida Law. This means, that all other Medicare guidelines, rules and regulations should apply to subsection 5. With regard to utilization, the issue of this case are not utilization based in terms of units of time or number of treatments given at one time but rather identifying whether the service(s) rendered is a component part of another service already rendered to the patient during the same date of service, the service(s) rendered is mutually exclusive of another service rendered to the patient during the same date of service, and whether the service(s) rendered was a truly distinct and separately identifiable service as reflected by the use of appropriate modifiers where allowed and as defines by CPT coding guidelines.
Additionally, State Farm contended that the bills submitted by Plaintiff contained CPT Codes that were improperly unbundled in violation of §627.736(5)(b)(1)(e). As such, neither State Farm nor its insured had any obligation to pay the unbundled portion of the bills in dispute. As it related to the issue of unbundling, State Farm contended that the more comprehensive code was paid in this matter, and, as such, the bill was considered to have been paid in full.
Furthermore, State Farm contended that the Florida Statutes have adopted the identical payment system that was devised by the CMS, by virtue of the PIP statute that requires that all bills for services be submitted to the insurer on properly completed CMS forms which utilize the Healthcare Correct Procedure Coding System (HCPCS) and comply with CMS instructions; the CPT Editorial panel for the American Medical Association (AMA) and healthcare correct procedural coding system. State Farm contended that in determining compliance with CPT and HCPCS coding, guidance shall be provided by the entities referenced in subsection (d), which includes the Office of the Inspector General (OIG). The Statute at issue herein additionally references and sets forth that all other medical services, supplies, and care are to be paid at the participating provider fee schedules under Medicare Part B. Medicare Part B and CMS are referenced throughout §627.736. This Statute sets forth than an insurer is to . . .pay 200% of what Medicare would pay. . .It is clear that the Statute is unambiguous on its face and that Medicare guidelines are to be followed.
As it related to proper billing/coding practices, Medicare implemented the National Correct Coding Initiative (NCCI) in January 1996. The initiative was developed to provide correct coding of healthcare services by providers to prevent Medicare payments for improperly coded services. NCCI consists of automated edits provided to carriers to evaluate claims and submissions when a provider bills more than one service for the same beneficiary on the same date of service. CMS developed the NCCI system to promote national correct coding methodologies and to control improper coding that leads to inappropriate payments of Medicare Part B claims. These coding polices are based on coding conventions defined in the AMA current procedure terminology (CPT) manual. State Farm argued that it is therefore clear that Medicare implemented the NCCI as part of Medicare Part B and the NCCI Edits apply to claims submitted under Medicare Part B. State Farm asserted that the NCCI has developed a database which includes the NCCI Edits. This database was designed to prevent improper payment when incorrect coding combinations are reported. In this present matter State Farm argued that under the NCCI Edits (which sets forth a list of comprehensive/component codes) the CPT Codes at issue here (i.e., CPT Coder 95851 billed in tandem with 98940) were improperly billed as pursuant to the NCCI Edits, CPT Code 95851 is a component of CPT Code 98940. Further, pursuant to the Edits, this code combination has been disallowed and the use of a modifier is not permitted in order to bypass the Edits. By virtue of billing these two codes on the same date of service for the same patient, pursuant to the applicable NCCI Edits, the provider improperly unbundled the services at issue herein.
State Farm argued that it, and its insured, is not required to pay a claim for charges for any treatment or service which is unbundled when such treatment or services should be bundled in accordance with paragraph (d). State Farm contended that, pursuant to the guidelines set forth by the OIG, which includes and incorporates the NCCI Edits, Plaintiff has unbundled the CPT Codes at issue here, and, that these codes should have been bundled.
Finally, State Farm asserted that it did not have any obligation to discuss any reasons for any alleged change to the bills/codes in question herein, as State Farm did not change any codes. Rather, State Farm made the appropriate payments pursuant to the applicable fee schedules and simply denied payment for the improperly billed codes.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court adopts the undisputed facts herein. The Court has reviewed the Motions, attachments thereto, affidavits of record, Fla. Stat. §627.736, Office of the Inspector General (OIG) publications and the National Correct Coding Initiative (NCCI) Manual including its edits. The Court concludes that Medicare Part B includes the NCCI and, therefore, is part of the allowable amount under the participating physician’s fee schedule for Medicare Part B.
The Court finds that Plaintiff improperly unbundled its services provided when billing range of motion measurement, CPT Code 95851 separately from chiropractic manipulative care, CPT Code 98940 on the same date of service. According to the NCCI, one code is a component of a more comprehensive code and cannot be billed separately fro the same patient on the same date of service. The use of a modifier to bypass the edits is not allowed when billing this code combination.
This Court accepts Defendant’s argument on the meaning of §627.736(5)(a)4. The inclusion of this paragraph into the Statute excepts our only two sections of the Medicare system that the legislature did not want to include in Florida Personal Injury Protection Law. In essence, the legislature adopted the Medicare pay system and excluded out only those two sections that they did not want to apply to Florida Law. This means that all other Medicare guidelines, rules and regulations should apply to subsection 5.
On the issue of unbundling, Florida Statute §627.732 in its definitional section, defines unbundling. The Statute states that an insurer or insured is not required to pay a claim for charges that is unbundled when such treatment or services should be bundled, in accordance with paragraph (d). The Court finds that Plaintiff did unbundle services, and, therefore, neither the insured nor the insurer is obligated to pay the above-referenced unbundled amount. This Court finds that there were no changes made in the CPT codes as billed by Plaintiff and submitted to State Farm. When services are inappropriately unbundled, one contemplates that what happened here, would occur; that the lesser codes would simply be denied in favor of a bundled service code that includes the other services.
With regard to the assertion that if bills were not payable under Medicare Part B, then the bills should be paid under workers’ compensation; the Court finds no legislative intent for payment under the workers’ compensation scheduled under the facts of this case. All CPT codes are reimbursable under Medicare Part B provided that the bills are not unbundled and they are submitted in accordance with paragraph (d). It is therefore
ORDERED and ADJUDGED as follows:
State Farm’s Motion for Summary Judgment is hereby GRANTED.
Final Judgment be and the same is hereby entered in favor of State Farm Mutual Automobile Insurance Company and against Plaintiff. Plaintiff takes nothing by this action and State Farm shall go hence without day.
This Court reserves jurisdiction for any taxable costs or attorneys’ fees.
