23 Fla. L. Weekly Supp. 610a

Online Reference: FLWSUPP 2306FILSInsurance — Personal injury protection — Coverage — Medical expenses — NCCI edits, which provide limits on number of treatments, are utilization limitations prohibited by PIP statute — PIP policy that allows insurer to choose among list of CMS reimbursement limitations and methodologies does not clearly and unambiguously elect NCCI reimbursement methodology — If NCCI edits were allowed to act as complete defense to payment, insurer would be able to circumvent obligations under PIP statute and under PIP policy that provides that insurer will reimburse 80% of maximum reimbursable allowance under workers’ compensation when services are excluded under Medicare Part B

INTERVENTIONAL SPINE CENTER, LLC., A/A/O PASCAL FILS-AIME, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-10732-SP-23 (02). October 7, 2015. Caryn C. Schwartz, Judge. Counsel: Don Owens, Shaked Law Firm, P.A., Miami, for Plaintiff. Progressive PIP House Counsel, for Defendant.

Motion for rehearing denied 4-27-16.

ORDER GRANTING PLAINTIFF’S AMENDEDMOTION FOR SUMMARY JUDGMENT ANDDENYING DEFENDANT’S CROSS-MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on July 8, 2015, upon Cross-Motions for Summary Judgment regarding the Defendant, Progressive American Insurance Company’s, application of National Correct Coding Initiative (NCCI) edits. The Court having considered the motions, having heard argument of counsel, and being otherwise fully advised, GRANTS Plaintiff’s Amended Motion for Summary Judgment regarding the Defendant’s application of National Correct Coding Initiative (NCCI) edits and DENIES Defendant’s Cross-Motion for Final Summary Judgment.ISSUE

The issue before this Court is whether the Florida Motor Vehicle No-Fault Act and the subject policy of insurance allows the Defendant to apply National Correct Coding Initiative (NCCI) edits to bar payment of Personal Injury Protection (PIP) benefits.

UNDISPUTED FACTS

This case arises out of a claim for Personal Injury Protection (PIP) benefits filed by the Plaintiff, Interventional Spine Center, LLC, as assignee of the Defendant’s insured, Pascal Fils-Aime. Pascal Fils-Aime was covered under a PIP policy of insurance issued by the Defendant. This policy was in full force and effect on the date of the accident, 3/7/2015. The policy of insurance provided Pascal Fils-Aime with $10,000.00 in PIP benefits.

The Defendant received the Plaintiff’s bills for the only date of service of 4/1/2014, an assignment of benefits, and a Standard Disclosure and Acknowledgement Form (D & A Form). The Defendant denied reimbursement for CPT 95831, CPT 95832, and CPT 95851 based upon National Correct Coding Imitative (NCCI) edits. The Defendant pled application of NCCI edits as an affirmative defense. The parties filed Cross-Motions for Summary Judgment as to this affirmative defense requesting this Court to determine whether NCCI edits are permitted under both the PIP Statute as well as Progressive’s policy of insurance.

PLAINTIFF’S POSITION

The Plaintiff argued that the Florida PIP Statute and Progressive’s policy of insurance do not authorize the use of NCCI edits to bar recovery of PIP benefits. The Plaintiff contended that interpretation of whether the PIP Statute and Progressive’s insurance policy allow for the use of NCCI edits is a matter of law to be determined by the Court. Additionally, the Plaintiff objected to the affidavits of Mr. Peter Majewski (Defendant’s Claim Adjuster) and Ms. Denisha M. Torres-Liche (Defendant’s Expert) because the affiants testified as to issues of law and because the affiants testified to issues not raised in either party’s motions.

The Plaintiff maintained that NCCI edits are utilization limits — which are prohibited under the PIP Statute. The Plaintiff cited Florida Statute § 627.736(5)(a)(3), which provides:

“Subparagraph 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.” (emphasis added). The Plaintiff relied on various Circuit and County Orders, all of which hold NCCI edits are utilization limitations.¹

The Plaintiff next contended that NCCI edits are prohibited by the PIP Statute because they provide a limit on the number of treatments. The Plaintiff referenced the definition provided by the Defendant’s expert (Ms. Torres-Liche), which states in its relevant part “the NCCI includes a set of edits known as Medically Unlikely Edits (MUEs). An MUE is a maximum number of Units of Service (U0S). . .” See Affidavit of Denisha M. Torres-Liche, MS, RHIA, LHRM, ¶ 28.

The Plaintiff further asserted that Progressive’s policy does not provide a “clear and unambiguous” election of NCCI edits reimbursement methodology as required by Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. The Plaintiff contended that Progressive’s policy language violates Virtual Imaging because it allows the Defendant to choose among the NCCI reimbursement methodology, the Medicare Part B methodology, or any other Medicare reimbursement — at the Defendant’s discretion.

The Plaintiff relied upon New Smyrna Imaging, LLC ala/o Lafayette Sampson v. Victoria Select Insurance Company, 21 Fla. L. Weekly Supp. 568a (Fla. Volusia Cty. Ct. 2011), where the court held that a PIP policy which provides an insurer with at least two methods of reimbursement — which can be chosen at the insurer’s option — violates Virtual Imaging. The Plaintiff also relied on St. Johns Medical Center a/a/o Christina Brown v. Direct General Insurance Company, 21 Fla. L. Weekly Supp. 925a (Fla. Duval Cty. Ct. 2013), and University Community Hospital a/a/o Majorie Young v. Mercury Insurance Company of Florida, 21 Fla. L. Weekly Supp. 89a (Fla. 13th Cir. Ct. 2013), which held that when the insurer is given the sole discretion to choose between alternative methods of reimbursement, “it creates an ambiguity as to which methodology will be selected by the Defendant for a submitted charge.” (emphasis added).

Lastly, the Plaintiff argued that even if Progressive was correct that NCCI edits preclude payment under Medicare, the subject codes must still be reimbursed under the Florida workers’ compensation fee schedule. Otherwise, the Defendant would be permitted to avoid its contractual and statutory obligation.

DEFENDANT’S POSITION

The Defendant contended that NCCI edits bar recovery of PIP benefits under both the subject policy of insurance and the PIP Statute. The Defendant argued that the 2012 amendments to the PIP Statute allow insurers to use Medicare coding policies and payment methodologies — including NCCI edits. Moreover, the Defendant further argued that SOCC, P.L. v. State Farm Mut. Auto. Ins. Co., 95 So. 3d 903, 909 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a] does not control the present matter as it was decided under an earlier version of the PIP Statute.

The Defendant maintained that the Plaintiff has not offered any evidence which shows the subject policy of insurance or the PIP Statue does not allow the Defendant to use NCCI edits to bar PIP benefits. Likewise, the Defendant claimed that without any contradictory evidence, judgment should be in its favor. See First North American Bank v. Hummel, 825 So. 2d 502 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D2010a]; Allstate v. Eckert, 472 So. 2d 807 (Fla. 4th DCA 1985); Nationwide Mut. Ins. Co. v. Griffin, 222 So. 2d 754 (Fla. 4th DCA 1969).

The Defendant relied on the affidavit of Ms. Torres-Liche and the attachments thereto in support of its position that NCCI edits are not utilization limitations. The Defendant noted that the Plaintiff proffered no evidence to rebut Ms. Torres-Liche’s affidavit, which claims that NCCI edits are not utilization limitations. The Defendant also noted that the cases on which the Plaintiff relied — which hold NCCI edits are impermissible utilization limitations — are not binding on this Court.

The Defendant further contended that the subject policy of insurance provides clear and unambiguous notice that the NCCI reimbursement methodology would be used, and that the subject policy language is similar to that of insurance policies which were found to provide clear and unambiguous notice. See Allstate Fire and Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 2015 WL 1223701 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]; Millenium Radoiology, LLC. a/a/o Angela Renteria v. State Farm Fire and Cas. Co., 13-20451 SP 23(06) (Fla. Dade Cty. Ct. 2015) [23 Fla. L. Weekly Supp. 360a].ANALYSIS

This claim arises under the 2013 PIP Statute, and Progressive’s policy, which incorporates its A085 FL (05/12) Endorsement. Unlike the prior version of the PIP Statute, the 2013 PIP Statute now allows insurers to use “Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, to determine the appropriate amount of reimbursement for medical services, supplies, or care. . .” See Fla. Stat. § 627.736(5)(a)(3).

The Court is asked to decide whether or not NCCI edits bar recovery of PIP claims under the subject policy of insurance and under the 2013 PIP Statute. This Court finds that these are questions of law for the Court. See SOCC, P.L. v. State Farm Mut. Auto. Ins. Co., 95 So. 3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 86 So. 3d 1113 (Fla. 2012) [36 Fla. L. Weekly D1062a].

A. NCCI edits constitute impermissible utilization limitations.

In Millennium Radiology, LLC. a/a/o Angel Renteria v. State Farm Fire and Cas. Co., 31-20451 SP 23 (06) (Fla. Dade Cty. Ct. 2015) [23 Fla. L. Weekly Supp. 360a] the Court held that the insurer was permitted to use Medicare’s Multiple Procedure Payment Reduction (MPPR) rule to determine the allowable amount under Part B of the Medicare physician’s fee schedule.

Medicare’s MPPR rule provides an allowable amount under Part B of the Medicare physician’s fee schedule. NCCI limitations, on the other hand, outright bar recovery under the Medicare Part B fee schedule. See Affidavit of Denisha M. Torres-Liche, MS, RHIA, LHRM² which states in Paragraph 20:

According to National Correct Coding Initiative (NCCI) Column1/Column 2 List, CPT codes 95831, 95832, and 95851 are components of and/or should not be reported with the more comprehensive code 99203 and are not separately payable for the same patient on the same date of service (DOS). A modifier is not allowed with these code combinations. CPT codes 95831, 95832, and 95851 have a superscript of “0” in the “Modifier” column with CPT code 99203 therefore, “There are no modifiers associated with NCCI that are allowed to be used with these code pairs; there are no circumstances in which both procedures of the code pairs should be paid for the same beneficiary on the same day by the same provider.

(emphasis added).

Because NCCI edits provide a complete bar — as opposed to providing an allowable amount — “in Miami-Dade County, the courts have determined that NCCI limitations which prohibit physicians from administering certain services to a patient on the same date are clearly utilization limitations.” Quality Medical Group, Inc. a/a/o Rudolf Steadman v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 222a (Fla. 11th Cir. Ct. 2010). This Court agrees.

B. NCCI edits are prohibited as limits on the number of treatments.

This Court now addresses whether NCCI limitations constitute impermissible limits on the number of treatments. According to Ms. Torres-Liche: “the NCCI includes a set of edits known as Medically Unlikely Edits (MUEs). An MUE is a maximum number of Units of Service (UOS) . . .” See Affidavit of Denisha M. Torres-Liche, MS, RHIA, LHRM, ¶ 28.

The PIP Statute “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.” See Fla. Stat. § 627.736(5)(a)(3). When the language of a statute is clear and unambiguous it “must be given its plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). Accordingly, this Court holds that NCCI limitations — which provide limits on the number of treatments — are prohibited by the plain language of the PIP Statute.

C. The NCCI reimbursement methodology is not clearly and unambiguously elected.

The Court now turns to whether the NCCI reimbursement methodology is clearly and unambiguously elected as required by Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. The Defendant’s policy of insurance, in its relevant part, states:

In determining the appropriate reimbursement under the applicable Medicare fee schedule, all reasonable, medically necessary and covered charges for services, supplies and care submitted by physicians, non-physician practitioners, or any other provider will be subject to the Center for Medicare Services (CMS) coding policies and payment methodologies, including applicable modifiers. The CMS polices include, but are not limited to: coding edits, both mutually exclusive and inclusive, payment limitations, and coding guidelines subject to the National Correct Coding Initiative (NCCI), Hospital Outpatient Prospective Payment System (OPPS), Multiple Procedure Payment Reduction (MPPR), and Multiple Surgery Reduction Rules (MSRR).

Applying the Florida Supreme Court’s ruling in Virtual Imaging to Progressive’s policy language, it is evident that the policy fails to clearly and unambiguously elect a single methodology of reimbursement. Rather, the Defendant’s policy allows it to use an almost limitless list of CMS reimbursement limitations and methodologies.

This Court finds that Allstate Fire and Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 2015 WL 1223701 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b] is factually distinct. There, the court held the insurer clearly elected to use Medicare Part B under the prior PIP Statute. The language “shall be subject to. . .all fee schedules” was not ambiguous because there was only one fee schedule that was permitted under the prior version of the PIP Statute, which was Medicare Part B. However, Progressive’s policy language is governed by the current PIP Statute — which allows other Medicare reimbursement methodologies to be used. Progressive’s policy, unlike Allstate’s policy, allows it to choose among MPPR or Medicare Part B or NCCI or MSRR or OPPS or any other Medicare reimbursement method, at its discretion.

This court is persuaded by University Community Hospital a/a/o Majorie Young v. Mercury Insurance Company of Florida, 21 Fla. L. Weekly Supp. 89a (Fla. 13th Cir. Ct. 2013), where the court held that a policy which allows an insurer to choose the reimbursement method that will be applied, is ambiguous as to the reimbursement method. (emphasis added). See also St. Johns Medical Center a/a/o Christina Brown v. Direct General Insurance Company, 21 Fla. L. Weekly Supp. 925a (Fla. Duval Cty. Ct. 2013) (Where the court held that when the insurer is given the option to choose between alternative methods of reimbursement, “it creates an ambiguity as to which methodology will be selected by the Defendant for a submitted charge”); New Smyrna Imaging, LLC a/a/o Layayette Sampson v. Victoria Select Insurance Company, 21 Fla. L. Weekly Supp. 568a (Fla. Volusia Cty. Ct. 2011) (Holding the same). This Court likewise concludes that Progressive’s policy is ambiguous as to which Medicare reimbursement methodology will be used in determining the amount of reimbursement.

D. If the Defendant were correct that NCCI edits operate as a complete bar to payment, the insurer would be able to circumvent its contractual and statutory obligation.

According to the affidavit of Ms. Torres-Liche, NCCI edits exclude the subject codes from payment under Medicare Part B. See Affidavit of Denisha M. Torres-Liche, MS, RHIA, LHRM, ¶ 20. Likewise, Progressive maintains that it does not need to issue payment for any service flagged by NCCI edits. However, Progressive’s position is inconsistent with its A085 FL (05/12) Endorsement. In its relevant part, Progressive’s A085 FL (05/12) Endorsement states:

However, if such services, supplies, or care is not reimbursable under Medicare Part B, as providing in this section f., we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under section 440.13 of the Florida Steatites, and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.

The plain and unambiguous language from Progressive’s Endorsement highlights the requirement to reimburse “80 percent of the maximum reimbursable allowance under workers’ compensation” when services are excluded under Medicare Part B. See A085 FL (05/12) Endorsement. Consequently, if Progressive were allowed to maintain its position of denying PIP benefits based upon the NCCI edits exclusion, it would be able to avoid its contractual obligation.

By the same token, if Progressive were permitted to deny PIP benefits based upon NCCI edits, it would be allowed to escape its obligation under the PIP Statute. The PIP Statute is clear that “[a]n insurer that applies the allowable payment limitations of subparagraph 1. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider is entitled to reimbursement under Medicare due to restrictions or limitation . . .” See Fla. Stat. § 627.736(5)(a)(3). Pursuant to this statutory language, an insurer is undoubtedly obligated to reimburse a provider for their treatment, irrespective of reimbursement restrictions or limitations under Medicare. The 11th Circuit Court in Quality Medical Group, Inc. a/a/o Rudolph Steadman v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 222a (Fla. 11th Cir. Ct. 2010) explained this obligation as follows:

[w]hen there is evidence that the Medicare fee schedules exclude payment for a service, as opposed to reducing payment for the service, the insurer is nonetheless obligated to pay for that service by use of other fee determinations provided by the PIP law. Otherwise, the PIP insurer is avoiding its obligation under the contract of insurance and PIP statute to pay for medically necessary services. Advanced Chiropractic & Medical Center (Sidoles Vilsinnor). . .

(emphasis added).

In sum, the PIP Statute and Progressive’s policy unmistakably stand for the proposition that even if a Medicare fee schedule excludes payment for a service, the Defendant is still obligated to issue payment under the workers’ compensation fee schedule. Therefore, if the Defendant were correct that NCCI edits operate as a complete defense to payment, the insurer would be able to circumvent its contractual and statutory obligation.CONCLUSION

The party’s Cross-Motions for Summary Judgment regarding whether the Defendant is permitted to deny PIP benefits based upon NCCI edits present issues of interpretation of an insurance contract and the legal impact of a statute. These are issues of law to be decided by this Court.

This Court finds that the 2013 PIP Statute allows insurers to use Medicare coding policies and payment methodologies to determine the appropriate amount of reimbursement, so long as it does not constitute a utilization limitation or provide a limit on the number of treatments.

This Court further finds that NCCI edits are both limits on the number of treatments and utilization limits — which are prohibited by the PIP Statute. Moreover, this Court finds that the NCCI reimbursement methodology is not clearly and unambiguously elected in Progressive’s policy. Lastly, this Court determines that if NCCI edits were a complete defense to payment, it would allow the insurer to avoid its contractual and statutory obligation. Thus, the Defendant’s application of NCCI edits to bar reimbursement was improper and cannot be used as a defense to payment.

It is therefore ORDERED AND ADJUDGED that the Plaintiff’s Amended Motion for Summary Judgment regarding the Defendant’s Application of National Correct Coding Initiative (NCCI) Edits is GRANTED and the Defendant’s Cross-Motion for Final Summary Judgment is DENIED.

__________________

¹See Quality Medical Group, Inc. a/a/o Jennifer Guarderas v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 219a (Fla. 11th Cir. Ct. 2010); ISOT Medical Center, Corp. a/a/o Thatiana Arroyave v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 1246a (Fla. Dade Cty. Ct. 2010); ISOT Medical Center, Corp. a/a/o Odamil Rosa v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 1242a (Fla. Dade Cty. Ct. 2010); Friedman Chiropractic Center a/a/o Noemi Aponte-Ali v. State Farm Mut. Ins. Co., 17 Fla. L. Weekly Supp. 1247a (Fla. Dade Cty. Ct. 2010); Peter J. Doran, D.C., P.A., a/a/o Jaime Lo Bianco v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 590a (Fla. Dade Cty. Ct. 2010); ISOT Medical Center, Corp. a/a/o Maria Brito v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 1244a (Fla. Dade Cty. Ct. 2010); Friedman Chiropractic Center a/a/o Hannah Ali v. State Farm Mut. Ins. Co., 17 Fla. L. Weekly Supp. 1243a (Fla. Dade Cty. Ct. 2010); John S. Virga, D.C., P.A. a/a/o Jennifer Crumpler v. State Farm Mut. Ins. Co., 17 Fla. L. Weekly Supp. 383a (Fla. Dade Cty. Ct. 2009); John S. Virga, D.C., P.A. a/a/o Yueming Lei v. State Farm Mut. Ins. Co., 17 Fla. L. Weekly Supp. 384a (Dade Cty. Ct. 2010); John S. Virga, D.C., P.A. a/a/o Abraham Zevuloni v. State Farm Mut. Ins. Co., 17 Fla. L. Weekly Supp. 380b (Fla. Dade Cty. Ct. 2010); Right Choice Medical & Rehab, Corp. a/a/o Martha Alvarez v. State Farm and Cas. Co, 21 Fla. L. Weekly Supp. 181a (Fla. Dade Cty. Ct. 2011); Bayview Chiropractic Center, P.A., a/a/o Jean Capozzoli v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 589b (Fla. 11th Cir. Ct. 2010) (All holding that NCCI edits are utilization limitations prohibited under the PIP Statute).

²Ms. Torres-Liche’s affidavit also testified as to bundling, coding, and lack of documentation as defenses to payment. However, these defenses were not argued in either party’s motions. In fact, coding, billing, and unbundling were not even affirmative defenses until 2 days before the hearing, when this Court Granted leave to amend Defendant’s affirmative defenses.