23 Fla. L. Weekly Supp. 360a

Online Reference: FLWSUPP 2304RENTInsurance — Personal injury protection — Coverage — Medical expenses — Where 2012 amendment to PIP statute and policy endorsement allow insurer to utilize Medicare coding policies and payment methodologies to limit payment of medical expenses, insurer did not breach policy by applying multiple procedure payment reduction to claim — Application of multiple procedure payment reduction to claim to reduce payment for second MRI performed on same patient by same physician in same session is application of payment modifier, not utilization limit

MILLENNIUM RADIOLOGY, LLC. A/A/O ANGELA RENTERIA, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-20451 SP 23 (06). July 1, 2015. Motion for Rehearing Denied August 11, 2015. Spencer Multack, Judge. Counsel: Yigal Kahana, for Plaintiff. Gregory Willis and Omar Giraldo, Cole, Scott & Kissane, Plantation, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND DENYING PLAINTIFF’SCROSS MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on the Rehearing of Cross Motions for Summary Judgment as it relates to the Defendant’s reimbursement methodology. At issue are Defendant’s Motion, filed on February 17, 2015, and Plaintiff’s Renewed Cross Motion for Final Summary Judgment, filed on June 1, 2015 (collectively, the “Motions”). The Court conducted a hearing on the motions on June 22, 2015, has carefully reviewed the Motions, the record, and the applicable law.

On or about June 12, 2013, Angela Renteria was involved in a motor vehicle accident. The Plaintiff, MILLENNIUM RADIOLOGY, LLC., (hereinafter “Millennium”) performed two MRIs. Specifically, Millennium, performed CPT code 72141, which represents a cervical MRI and CPT code 72148, which represents a lumbar MRI. The multiple diagnostic procedures (72141 & 72148) were performed on the insured by the Plaintiff on the same day and during the same visit. The defendant, State Farm, approved $632.55 for CPT code 72141 and $1,126.26 for CPT code 72148. State Farm paid 80% of the total approved amount for a total payment of $1,407.05, which was adjusted using the Multiple Procedure Payment Reduction (“MPPR”).

Florida has adopted a “no-fault” statutory system for automobile insurance. The relevant statute has been subject to several versions and amendments. See Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. The scheme requires that Florida automobile owners obtain “personal injury protection” (hereinafter “PIP”) in the amount of at least $10,000, which covers some of the insured’s medical expenses and lost wages in the event of an automobile accident. § 627.736, Fla. Stat. (2015).

On July 1, 2012, the current version of the statute took effect, substantially amending Florida Statute 627.736. As it pertains to issues sub judice, the Statute includes language that permits the use of Medicare coding policies and methodologies when determining a reasonable charge under F.S. 627.736(5)(a)(1). The amended portion of the statute, 627.763(5)(a)(3) states,

However, subparagraph 1 [627.736(5)(a)(1)] does not prohibit an insurer from using the 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 if the coding policy or payment methodology does not constitute a utilization limit.

Additionally, the Statute provides a notice requirement in 627.736(5)(a)(5) for an insurer who plans to limit payment based upon fee schedules and modifiers. It states,

Effective July 1, 2012, an insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. If a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.

The State Farm Policy booklet 9810A describes the limitations and modifiers it plans to use when determining a reasonable charge under 627.736(5)(a)(1). Specifically, page 16 states in pertinent part:

We will limit payment of Medical Expenses described in the Insuring Agreement of this policy’s No-Fault Coverage to 80% of a properly billed and documented reasonable charge, but in no event will we pay more than 80% of the following No-Fault Act “schedule of maximum charges” including the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers.

(f) For all other medical services, supplies, and care 200 percent of the allowable amount under (I) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).

Clearly, the Defendant has placed the insured on notice that the coding policies will be implemented when determining reimbursements. The recent authority simply requires the insurer provide notice in their policies of an election to use the fee schedules, and Medicare coding policies and methodologies, should the insurers choose to use the fee schedules as a basis for calculating reimbursements. 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], S. Fla. Wellness, Inc. v. Allstate Ins. Co., 2015 WL 897201, (S.D. Fla. 2015), and Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 150 (Fla. 2013) [38 Fla. L. Weekly S517a]. This Court finds that State Farm has properly incorporated the necessary notice to be compliant with the binding authority and the recent amendment to the statute.

In calculating the reimbursement referenced above, State Farm applied a Multiple Procedure Payment Reduction (“MPPR”), which is a payment methodology of the federal Centers for Medicare & Medicaid Services. As set forth above, the use of such payment methodologies is specifically provided for in both the policy and the 2012 PIP Statute.

This Court is mindful that Florida courts did not permit the use of Medicare payment methodologies and/or coding policies under the prior version of the PIP Statute, see, e.g., SOCC, P.L. v. State Farm Mutual Auto. Ins. Co., 95 So. 3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a] (finding that an insurer may not apply National Correct Coding Initiative (“NCCI”) edits); Nationwide Mutual Fire Ins. Co. v. AFO Imaging, Inc., 71 So. 3d 134 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b] (finding an insurer may not base payments on Medicare’s Outpatient Prospective Payment System (“OPPS”)). Those rulings were based on the prior version of the PIP Statute, which did not authorize an insurer to “utilize any restrictions or limitations applicable to the Medicare program when determining the amounts due for MRI services . . .” AFO Imaging, 71 So. 3d at 135.

By contrast, this claim arises under the 2012 PIP Statute and State Farm’s new policy form — both of which explicitly permit an insurer to consider “the 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 . . . .”¹ Applying the plain meaning of this provision, the 2012 PIP Statute now permits State Farm to consult Medicare coding policies and payment methodologies to determine the appropriate amount of reimbursement. As the Florida Supreme Court has declared in construing the PIP Statute, “[w]here the working of the [No-Fault] Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language,” Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So. 2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a]. Florida’s well-settled rule of statutory construction [is] that the legislature is presumed to know the existing law when a statute is enacted, including judicial decisions on the subject concerning which it subsequently enacts a statute. Seagrave v. State, 802 So.2d 281 (Fla. 2001) [26 Fla. L. Weekly S481a] (quoting Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D1387c]

Thus, this court holds it is without power to diverge from the intent of the Legislature as it is clear that both the Statute and policy booklet 9810A allow State Farm the “use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers” in limiting payment of medical expenses. In the instant case State Farm applied the Multiple Procedure Payment Reduction, a payment methodology of the federal Centers for Medicare & Medicaid Services that is used to determine the allowable amount under Part B of the Medicare physician’s fee schedule.

It is SO ORDERED:

Plaintiff Millennium LLC.’s Renewed Cross Motion for Final Summary Judgment is hereby DENIED.

1. Defendant’s Motion for Partial Summary Judgment is hereby GRANTED.

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¹Fla. Stat. § 627.736(5)(a)(3); Policy Form 9810A, (tracking the statutory language).

__________________ORDER DENYING PLAINTIFF’S MOTION FORRECONSIDERATION OF COURT’S ORDER GRANTINGDEFENDANT’S MOTION FOR SUMMARYJUDGMENT AND DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on the Plaintiff’s Motion for Reconsideration of This Court’s Order Granting Defendant’s Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment. The Plaintiff contends that,

The Court does not make any finding with respect to whether or not the MPPR constitutes a limitation on the number of treatments or other utilization limits prohibited by the above statutory language, and cites no authority to support the Defendant’s claim that the MPPR could be anything but a utilization limit.

The Court addresses the Plaintiff’s contention as follows:

As stated in the Court’s original order, on July 1, 2012, the current version of the statute took effect substantially amending Florida Statute 627.736. As it pertains to issues sub judice, the Statute includes language that permits the use of Medicare coding policies and methodologies when determining a reasonable charge under F.S. 627.736(5)(a)(1). The amended portion of the statute, 627.763(5)(a)(3) states,

However, subparagraph 1 [627.736(5)(a)(1)] does not prohibit an insurer from using the 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 if the coding policy or payment methodology does not constitute a utilization limit.

The word “modify” means, “to change some parts of (something) while not changing other parts.” http://www.merriam-webster.com/dictionary/modify (August 11, 2015). “Modify,” also means, “to change something slightly, especially in order to improve it or to make it less extreme.” http://www.macmillandictionary.com/ us/dictionary/american/modify (August 11, 2015).

The word “policy” means, “a definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future decisions.” http://www.merriam-webster.com/dictionary/policy (August 11, 2015). It also means, “a set of plans or actions agreed on by a government, political party, business, or other group.” http://www.macmillandictionary.com/us/dictionary/american/policy (August 11, 2015). Clearly “modify” indicates a change and “policy” indicates a plan.

Using the common definition of the word “modify” and “policy,” when reading F.S. 627.763(5)(a)(3), allows the insurance company to implement a methodology to change the reimbursement amount to what is appropriate under the Centers for Medicare and Medicaid Services in certain circumstances. In this instance, State Farm implemented a methodical change (or a modifier) as adopted by the Center for Medicare and Medicaid Services, when multiple services for diagnostic imaging are furnished by the same physician, to the same patient, in the same session, on the same day¹. The change is a reduction in the reimbursement for the second diagnostic procedure for what the Centers for Medicare and Medicaid Services deems an appropriate reimbursement². The Court does not find this to be a limitation, but rather a modification. Furthermore, the Court finds that the methodology is explicit and unambiguously stated in the newly enacted F.S. 627.763(5)(a)(3) and permits the insurance company to apply the provisions as drafted in the statute.

The Court once again holds it is without power to diverge from the intent of the Legislature as it is clear that both the Statute and policy booklet 9810A allow State Farm the “use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers” in reducing the payment of medical expenses.

The Plaintiff’s Motion for Reconsideration is DENIED.

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¹“Transmittal 1104,” CMS Manual System, Department of Health & Human Services, Centers for Medicare & Medicaid Services, August 2, 2012

²“MM7747,” MLN Matters, Department of Health and Human Services, August 2, 2012