18 Fla. L. Weekly Supp. 400a
Online Reference: FLWSUPP 1804BUSO Insurance — Personal injury protection — Coverage — Medical expenses — Testimony of litigation adjuster is not sufficient to preclude summary judgment on issue of reasonableness, relatedness and necessity of services — CPT coding — Trial court refuses to consider affidavit opining that medical provider improperly coded services where affidavit is contrary to insurer’s explanation of benefits, pleadings and sworn testimony regarding basis for denial of codes — Further, insurer waived affirmative defenses of upcoding or unbundling by failing to plead them — Version of PIP statute in effect at time policy was executed, which provides for payment of 80% of reasonable medical expenses, rather than version in effect at time of accident, which provides for payment of 200% of Medicare or workers’ compensation fee schedule, is applicable where statutory change affects substantive rights and insurer failed to follow policy requirements to amend policy to allow payment pursuant to 2008 PIP statute
SOUTH MEDICAL CENTER, INC., a/a/o Aldo Busot, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 09 8492 SP 25 (01). October 5, 2010. Andrew S. Hague, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, SOUTH MEDICAL CENTER, INC. a/a/o Aldo Busot’s, Motion for Summary Judgment, pursuant to Rule 1.510, Fla.R.Civ.Pro, after due notice to all parties, the Court having heard argument of counsel on 9/24/10 and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff sued the Defendant on or about 8/24/09 alleging violation of § 627.736 and breach of contract, seeking to enforce the payment of PIP benefits arising out of a motor vehicle accident that occurred on or about 2/24/08.
2. On or about 5/12/10, the Plaintiff filed its’ Amended Complaint
3. The Plaintiff sued the Defendant for medical expenses for medical expenses rendered to Aldo Busot at South Medical in the amount of:
A. $1,275.00 for dates of service 3/28/2008 (CPT 99244), 5/16/2008 (CPT 99244), and 8/13/2008 (CPT 99244), and
B. $479.78 for dates of service 2/27/08 through 8/13/08 (excluding dates of service 3/28/2008 (CPT 99244), 5/16/2008 (CPT 99244), and 8/13/2008 (CPT 99244). This amount reflects 80% of the subject medical expenses in the amount of $1,635.00 minus payments made in the amount of $828.22.
4. On or about 7/29/10, the Defendant filed its’ Answer and Affirmative Defenses alleging that it issued the appropriate payment amounts pursuant to Fla. Stat. 627.736(5)(a)(2)(f) (2008) and 627.736(5)(a)(3) (2008).
5. The Defendant denied payment for CPT code 99244 on dates of service 3/28/08, 5/16/08 and 8/13/08. CPT code 99244 identifies an “Office consultation for a new or established patient, which requires these three components: a comprehensive history; a comprehensive examination; and medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient’s and/or family needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family.”
6. During the course of discovery, State Farm never provided a sound legal basis for the denial of these charges. In his deposition, the litigation adjuster for the Defendant stated,
Q: Okay. So State Farm is not disputing than an in-office consultation was done that day, correct?
A: No, sir.
Q: All right. Basically — and this is — you can testify — well, let me just ask you because I don’t want to talk about what we discussed off the record, why did State Farm disallow the entire charge?
A: The Procedure Code 99244 referenced by your clients was used more than what is normally expected within the scope of a provider per claim.
Q: How did State Farm determine that?
A: Based on the AMA or CPT guidelines and the bills and the codes submitted by your client.
(Deposition of Harold Ly at 36-37).
7. However, when asked about the AMA and CPT Code guidelines in more detail, Mr. Ly could not provide any legal basis for the Defendant’s denial based on its allegation that CPT code 99244 was rendered more than what is normally expected by a provider per claim.
Q: Besides what’s on the EOR pertaining to the Explanation 98, do you have any other specific information from the CPT, you know, coding, Physician’s Fee & Coding Guide or any other manual or guideline to substantiate the claim you’re making?
A: No, sir.
(Deposition of Harold Ly at 44).
8. The testimony of a litigation adjuster can hardly address whether services were performed more than what is medically necessary and is not sufficient to preclude summary judgement on the issue of reasonable, related and medically necessary. United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11 Fla. L. Weekly Supp. 204b (Fla. 11th Jud. Cir. App. 2004).
9. In the affidavit of the physician who performed the subject services, Jerome P. Bettner, M.D., concludes that each consult was properly billed under CPT 99244. Specifically, Dr. Bettner states, “This consultation was performed in approximately sixty (60) minutes, and included the taking of a comprehensive history, and the performance of the comprehensive medical examination, and a medical decision making of moderate complexity and was properly billed as CPT code 99244.” (See Affidavit filed in support of the motion).
10. The Defendant denied payment for codes 99244 because it claims the treatment was rendered more than what is normally expected, however, the Florida PIP Statute requires that a service be reimbursed if medically necessary. Here, each of the services performed on Aldo Busot were medically necessary as determined by the licensed physicians at South Medical Center, Inc. Specifically, each of the modalities performed and codes billed on a given day were medically necessary and assisted the physicians in the treatment and prognosis of Aldo Busot for the accident of 2/24/08. (See Affidavit of Jerome P. Bettner, M.D.) The Defendant has failed to offer any summary judgment evidence that the services performed on Mr. Busot were not medically necessary, and therefore can make no argument as to medical necessity to rebut the affidavits of Dr. Bettner. See Vega v. Travelers Indemnity Co., 520 So. 2d 73 (Fla. 3d DCA 1988) (holding that the insurer must reimburse plaintiff for remaining charges and lost wages when the medical evidence was uncontroverted).
11. All of the services rendered to Aldo Busot were related to his accident on 2/24/08 and were reasonable for the injuries sustained in the subject accident, and medically necessary to the treatment of the patient. The Plaintiff filed the affidavit of the treating physician, Jerome P. Bettner, M.D., which establishes that all of the services which were not reimbursed were reasonable, related and medically necessary.
12. As the affidavit of Dr. Bettner and deposition of the litigation adjuster demonstrate, consultations were performed on 3/28/08, 5/16/08, and 8/13/08, and were properly billed under CPT code 99244. The Defendant’s only contention is that the subject services were performed more than it determined was normally expected, a conclusion for which they have provided no basis, as none exists.
13. As such, the Plaintiff is entitled to summary judgment for the subject services as they were performed, properly billed for under CPT code 99244, reasonable, related and medically necessary, and the Defendant has provided no basis in the AMA or CPT guidelines for which a denial is warranted. (The party seeking to contest the expert’s opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So.2d 532 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c]).
14. In its’ Better Verified Answers to Plaintiff’s Interrogatories the Defendant states “CPT Code 99244 is included in CPT Code 97124 and CPT Code 97035.” (See Plaintiff’s Notice of Filing Defendant’s Better Verified Answers to Plaintiff’s Interrogatories, Interrogatory #14, filed in support of the motion). CPT Code 97124 represents manual massage, and CPT Code 97035 represents ultrasound, while as previously mentioned, CPT Code 99244 is a comprehensive consultation performed by a physician. The Defendant’s claim that a comprehensive consultation performed by a physician over the course of sixty (60) minutes is included in manual massage and ultrasound is a mistake and/or unfounded.
15. In opposition to the motion, the Defendant untimely served the affidavit of Denisha M. Torres-Lich who claims to be a registered health information administrator.
16. Based on her alleged training and experience and within a reasonable degree of coding probability, it was her opinion that South Medical Center improperly coded the services provided when billing consultation CPT code 99244 for 3/28/08 and 5/16/08 dates of service. (Ms. Torres-Lich failed to address the 8/13/2008 d/o/s).
17. She states that “the documentation did not support the use of the consultation code 99244” without referencing what documentation she relied upon or attaching sworn to or authenticated copies to her affidavit. Therefore, any reference to this alleged “documentation” is hearsay. See BiFulco v. State Farm Auto Ins., 693 So.2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a]; Fla. R. Civ. P. 1.510(e)
18. She has the opinion that “[a] more appropriate code would be the use of an established patient evaluation and management code within the code range of 99211-99215” but does not state specifically which one or a reasonable charge for the service.
19. Most importantly, by relying on Ms. Torres-Lich opinions in opposition to the motion, the Defendant has taken a totally inconsistent position with its pre-suit Explanation of Review (see exhibits attached to the deposition of Harold Ly), its Answer and Affirmative Defenses, and its Answers to Interrogatories.
20. Based on the foregoing, this Court refuses to consider the affidavit of Denisha M. Torres-Lich untimely served in opposition to the motion for summary judgment. This Court agrees that a party met with a Motion for Summary Judgment should not be permitted to defeat the summary judgment with a subsequent affidavit submitted by himself/itself or by another which “baldly” repudiates previous testimony or affidavits of that same party. Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). See also, Bell v. Bailey, 639 So. 2d 1063 (Fla. 3d DCA 1994); Arnold v. Dollar General Corporation, 632 So. 2d 1144 (Fla. 5th DCA 1994); Kopacz v. Jack Eckerd Corporation, 542 So. 2d 469 (Fla. 5th DCA 1989); Willage v. Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982).
21. Furthermore, upcoding and unbundling under Fla. Stat. 627.736(5)(b)(1)(e) are affirmative defenses that must be plead. Progressive Consumers Insurance Company v. Craig A. Newman, D.C. (a/a/o Reem Riley), 15 Fla. L. Weekly Supp. 129a (Fla. 13th Jud. Cir. 2007)
22. The Defendant has not plead either upcoding or unbundling under Fla. Stat. 627.736(5)(b)(1)(e) as an affirmative defense. It is well settled, that the failure to plead an affirmative defense results in a waiver of the defense. Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A, 807 So.2d 669 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2811a]. Further, Florida Rule of Civil Procedure 1.140(h)(1) states, “A party waives all defenses and objections that the party does not present either by motion under subdivision (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).”
23. The affidavit of Ms. Torres-Lich (as well as the Defendant’s memorandum of law filed in response to the Plaintiff’s motion) attempts to inject a defense into the litigation which is both contrary to the Defendant’s own answer and affirmative defenses and its sworn testimony regarding the basis of denial of these codes.
24. As such, pursuant to the established precedent and Florida Rules of Civil Procedure, the Defendant has waived any affirmative defense based on an alleged upcoding or unbundling or services under Fla. Stat. 627.736(5)(b)(1)(e) or the subject policy of insurance.
25. Based on the above, this Court grants the Plaintiff’s motion in regard in the amount of $1,275.00 for dates of service 3/28/2008 (CPT 99244), 5/16/2008 (CPT 99244), and 8/13/2008 (CPT 99244), at 80% plus statutory interest.
26. In addition, this Court grants the Plaintiff’s motion in regard in the amount of $479.78 for dates of service 2/27/08 through 8/13/08 (not including dates of service 3/28/2008 (CPT 99244), 5/16/2008 (CPT 99244), and 8/13/2008 (CPT 99244) which this Court has already ruled upon) on the below stated grounds. This amount reflects 80% of the subject medical expenses in the amount of $1,635.00 minus payments made in the amount of $828.22.
27. The subject policy of insurance was effective from 10/27/07 through 4/27/08. (See deposition of Harold Ly, filed in support of the motion, at 7).
28. The Florida Legislature allowed the Florida Motor Vehicle No-Fault Law to automatically repeal on 10/1/07 pursuant to a “sunset” provision. Thereafter, effective 1/1/08, the Legislature enacted a new set of statutes as the Florida Motor Vehicle No-fault Law, which included a newly revised version of § 627.736.
29. Effective January 1, 2008, Fla. Stat. § 627.736(5)(a)(2)(2008) was amended to allow a PIP insurer to issue payment at 200% of the Medicare Part B Fee Schedule. However, like the prior PIP statute, the revised version requires that PIP insurers “shall” provide reimbursement of 80% of an insured’s reasonable” medical expenses. No where in the revised statute did the Legislature define “reasonable” as 200% of the Medicare Part B Fee Schedule.
30. The Defendant issued payment at 200% of Medicare Part B pursuant to a permissive fee schedule contained in Fla. Stat. § 627.736(5)(a)(2)(2008) for medical services rendered to Aldo Busot. This permissive fee schedule was neither in existence at the issuance of the policy nor mentioned anywhere in the policy itself. (See a true and correct copy of the subject policy of insurance provided in Defendant’s Response to Plaintiff’s Request to Produce and filed in support of the motion.)
31. By its own admission, the Defendant insurer utilized the fee schedule found in the 1/1/08 PIP statute when reimbursing the Plaintiff for medical benefits. (See Deposition of Harold Ly).
32. The insured (and any assignees under the contract such as the Plaintiff provider) cannot be held to have agreed to any payment limitations found in the 2008 PIP statute when the contract was entered into in 2007. “[T]he citizens of this State cannot be charged reasonably with notice of the consequences of impending legislation before the effective date of that legislation, for it is generally accepted that a statute speaks from the time it goes into effect. . .” Hausler v. State Farm Mut. Auto. Ins. Co., 374 So. 2d 1037, 1038 (Fla. 2nd DCA 1979) (holding that the date of the accident does not determine the law that is applicable to a dispute). See also Menendez v. Progressive Express Ins. Co., Inc., 2010 WL 375080 (Fla. 2/4/10) [35 Fla. L. Weekly S81a], revised opinion 2010 WL 1609785 (Fla. 2010) [35 Fla. L. Weekly S222b] (“The statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract” citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]).
33. Because the 2008 PIP statute was not in effect until 1/1/08, it cannot govern the substantive issues arising in connection with the subject contact which was entered into prior to the effective date of the statute. (The policy was entered into during the “gap” period and therefore, there was no PIP statute technically in effect on the date the contract was entered into between the parties). See Menendez supra. (“In order to resolve the issue of retroactive application of the statutory presuit notice provision, we first explore the broader statutory scheme of Florida’s Motor Vehicle No-Fault Law. Next, we discuss the standard applicable to determining whether a statute should be applied retroactively. We then apply this standard and hold that the Third District improperly concluded that the statutory presuit notice provision could apply retroactively to the existing policy and claim for benefits in this case.”).
34. “Retroactivity will also be rejected where a statute impairs the obligation of contracts in violation of article I, section 10, of the Florida Constitution. Fleeman v. Case, 342 So.2d 815, 818 (Fla.1976). Article I, section 10, of the Florida Constitution states: ‘No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.’ ” Menendez supra.
35. Because the payment schedule in the 2008 PIP statute applied by the Defendant at 200% of Medicare Part B payment amount is less than both 80% of the reasonable amount billed and the amount codified in the 2007 PIP statute, it impairs the obligation of the contract in violation of the above cited section of the Florida Constitution and therefore impermissible.
36. In Florida, to determine whether a statute may be retroactively applied, “we consider two factors: (1) whether the statute itself expresses an intent that it apply retroactively; and, if so, (2) whether retroactive application is constitutional.” Nadine Raphael v. James Shecter, and Emergency Physician Enterprises, Inc., 18 So. 3d 1152 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1936a] (citing Old Port Cove Holdings, Inc. v. Old Port Cove Condo Ass’n One, Inc., 986 So.2d 1279, 1284 (Fla. 2008) [33 Fla. L. Weekly S478a]; Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 503 (Fla. 1999) [24 Fla. L. Weekly S267a].
37. The Florida Supreme Court has consistently adhered to the sound legal principle that neither the Courts nor the legislature may retroactively modify or impair established substantive right sunder a contract. Smiley v. State, 966 So.2d 330 (Fla. 2007) [32 Fla. L. Weekly S303b].
38. “In the instant case, the Defendant has retroactively affected the substantive rights of the Plaintiff (how much it is paid under the insurance contract) by its unilateral retroactive application of the fee schedule in the 2008 PIP statute (which undisputably pays less than contract/policy of insurance).” Fidel S. Goldson, D.C., P.A. (a/a/o Trishella Jean-Louis) v. GEICO Indemnity Company, 17 Fla. L. Weekly Supp. 43b (Fla. 17th Jud. Cir. 2009).
39. Further, “Defendant’s argument that the Plaintiff’s rights had not vested until the accident occurred is misplaced. The binding case law states that ‘retroactive application of a statute that alters the substantive, vested, or contractual rights is prohibited absent clear legislative intent. . .” The Defendant’s unilateral application of the fee schedule affected the Plaintiff’s substantive, as well as, contractual rights. Id. citing Progressive Express Ins. Co. v. Menendez, 979 So.2d 324, 331 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D811a] (emphasis added).
40. The insured’s rights under the subject policy of insurance became vested when the policy was issued in 2007. Premier Neurological Treatment Centers, Inc., a/a/o John McCray v. USAA Casualty Insurance Co., 16 Fla. L. Weekly Supp. 1188a (Fla. 17th Jud. Cir. 2009). “[T]he amendment to the PIP statute included substantive changes and the 2008 PIP statute cannot take away those vested rights.” Id. These substantive changes would allow the Defendant to pay less in benefits than under the prior “80%” version of the statute which was in effect at the time the policy was issued. Gerald T. Stashak (Patient: Daniel Gaballa) v. Geico General Insurance Company, 16 Fla. L. Weekly Supp. 965a (Fla. 15th Jud. Cir. 2009). This amendment substantially alters the vested rights and liabilities of the parties to the policy of insurance, thus the PIP statute in effect at the issuance of the policy of insurance controls. Id. citing Lumbermens Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3rd DCA 1983); Hausler v. State Farm Mutual Automobile Ins. Co., 374 So.2d 1037 (Fla. 3rd DCA 1979); Menendez v. Progressive Express Ins. Co., Inc., 2010 WL 375080 (Fla. 2/4/10).
41. It is well settled that statutory amendments which change the amount of benefits a claimant, or assignee of the claimant, is entitled to receive are substantive in nature. Meek v. Layne-Western Co., 624 So.2d 345, 348 (Fla. 1st DCA 1993), citing, Recon Paving, Inc. v. Cook, 439 So.2d 1019, 1021 (Fla. 1st DCA 1983).
42. “When a law effects substantive rights, liabilities, and duties, that law is presumed to apply prospectively.” Gerald T. Stashak, citing Progressive Express Ins. Co., Inc. v. Menedez, 979 So.2d [324,] 330 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D811a]. “Even when the Legislature does expressly state that a statute is to have a retroactive application, the [Florida Supreme] Court has refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties.” State Farm Mutual Automobile Ins. Co. v. Laforet, 658 So.2d 55 (Fla. 1995) [20 Fla. L. Weekly S173a]. Simply because the Legislature labels an amendment as retroactive or remedial, it does not make it so. Id. 28.
43. The policy at issue states, “We will pay to or on the behalf of the injured person the following benefits. . . .in accordance with the Florida Motor Vehicle No-Fault Law, as amended, for; 1. Medical Expenses; EIGHTY PERCENT (80%) OF ALL REASONABLE EXPENSES FOR MEDICALLY NECESSARY medical surgery, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.” There is no portion of the policy of insurance that states the Defendant would pay 200% of Medicare.
44. The language of the policy is clear and unambiguous. When the terms of the insurance contract are clear and unambiguous, the express terms control. Armstrong v. State, 985 So.2d 1156 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D1594a]; See also Premier Neurological Treatment Centers, Inc., a/a/o John McCray v. USAA Casualty Insurance Co., Case No. 08-13411 COCE 50 (Fla. 17th Cir. 2009) [16 Fla. L. Weekly Supp. 1188a]. As such, the Defendant is responsible for payment of eighty percent of the all reasonable, related, and necessary medical expenses which are not limited by the 2008 fee schedule.
45. The Defendant’s own policy of insurance precluded any changes to the policy without the endorsement of the Defendant. Specifically, the policy states;
The terms of this policy may only be changed or waived by an endorsement from us. If the revision gives broader coverage it will be done without an extra charge. If any coverage you carry is changed to give broader coverage, we will give you broader coverage as of the date we make the change effective.
46. The Defendant neither issued such endorsement or made the change effective with respect to the permissive fee schedule contained in the 2008 PIP statute. There is no endorsement or amendment to the policy of insurance to place anyone on notice of the Defendant’s intention to pay 200% of Medicare. As such, the Defendant is required to pay eighty percent of all reasonable, related, and necessary medical bills pursuant to the PIP statute as amended when the policy was issued.
47. This court should not impose contractual rights and duties on the parties which they themselves did not make part of the contract. Life Insurance Co. of No. America v. Cichowlas, 659 So.2d 1333 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D2032a]. The subject policy of insurance had specific requirements for amendment which the Defendant failed to follow. If the Defendant intended to issue payment pursuant to the permissive fee schedule of the 2008 PIP statute it should have issued the required endorsement. When the Defendant did not issue the endorsement required by its own policy of insurance it failed to make the permissive fee schedule part of the policy.
48. The Plaintiff is instructed to submit a Final Judgment accordingly based on the foregoing.
