23 Fla. L. Weekly Supp. 855a
Online Reference: FLWSUPP 2308LOUIInsurance — Personal injury protection — Coverage — Medical expenses — Multiple Procedure Payment Reduction — PIP policy that clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule and contains general references to Medicare coding policies and procedures does not clearly elect application of MPPR — Moreover, MPPR is utilization limit prohibited by PIP statute, and even if MPPR were not prohibited by statute, insurer misapplied MPPR by superimposing 2013 MPPR on 2007 Medicare fee schedule — Insurer that paid claims based on fee schedule without disputing relatedness or necessity of treatment pre-suit may not contest relatedness and necessity
PAN AM DIAGNOSTIC SERVICES, INC. (a/a/o Maxime Jean Louis), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-3283 SP 23 (03). January 15, 2016. Honorable Linda Singer Stein, Judge. Counsel: Yigal D. Kahana, Kahanalaw, PA, North Miami, for Plaintiff.
REVERSED and REMANDED. (State Farm Mutual Auto. Ins. Co. v. Pan Am Diagnostic Services, Inc., Case No. 16-121 AP, 9-5-2018)
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on December 1, 2015, concerning: (1) the “Plaintiff’s Motion for Final Summary Judgment” filed on November 18, 2014, and (2) the “Defendant’s Cross Motion for Final Summary Judgment” filed on September 9, 2015. The Court, having considered the motion, the arguments of counsel, and the record, and being otherwise advised in the premises, GRANTS the Plaintiff Pan Am Diagnostic Services, Inc.’s Motion for Summary Judgment and DENIES the Defendant State Farm Mutual Automobile Insurance Company’s Motion for Summary Judgment. Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
This is a personal injury protection (“PIP”) case, where the Plaintiff seeks damages for unpaid no-fault benefits. The Defendant admits that the assignor was covered at the time of the accident at issue by a policy issued by State Farm, and that that policy was in full force and effect.
The Defendant argues that it was entitled to apply Medicare’s “Multiple Procedure Payment Reduction” (“MPPR”) to the Plaintiff’s bill for multiple treatments rendered to the insured on the same date of service. MPPR limits the amount Medicare reimburses health care providers who render multiple procedures to the same patient on the same day. The Defendant also denies the relatedness and necessity of the services at issue.
The Plaintiff contends I) that the Defendant’s policy of insurance specifically elected the “200% of Medicare Part B fee schedule method of reimbursement” and did not elect the MPPR under Kingsway Amigo v. Ocean Health, 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] and Geico v. Virtual, 141 So.3d 147, 153 (Fla. 2013) [38 Fla. L. Weekly S517a], and II) that the PIP statute does not authorize insurers to utilize the MPPR at all because the PIP statute specifically prohibits the application of any utilization limits including any limitations on the number of treatments. Additionally, Plaintiff contends III) that Defendant has misinterpreted and misapplied MPPR altogether by superimposing the 2013 Medicare MPPR upon the 2007 Medicare Physicians fee schedule. Lastly, the Plaintiff argues that the Defendant made payment based on the fee schedules without ever disputing relatedness and necessity, pre-suit. After the Defendant has utilized the fee schedules to make reimbursement, and has included the payment for the services at issue in its PIP payout log, the Defendant may not contest relatedness and necessity. This Court agrees with the Plaintiff.
The Plaintiff notes that State Farm’s 9810A policy form, at page 16, clearly states that State Farm will pay 80% of “the allowable amount under (1) The participating physicians fee schedule of Medicare Part B except as provided in sub-sub-paragraphs (II) and (III).” The exceptions provided in sub-sub-paragraphs (II) and (III) do not apply in this case. The policy further states that: “For purposes of the above, the applicable fee schedule or payment limitation in effect on March 1 of the year in which the services are rendered. . .except that it will not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.”
State Farm notes that there is also language on page 16 of its 9810A policy stating: “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.” As well as page 5, where it states : “Reasonable Charge, which includes reasonable expense, means an amount to be determined by us to be reasonable in accordance with the No-Fault Act, considering one or more of the following: . . .7. Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, if the coding policy or payment methodology does not constitute a utilization limit.” State Farm argues that that language permits it to limit PIP reimbursements below the allowable amount under the 2007 Medicare Part B physicians fee schedule, based on the MPPR.Findings of fact
The Parties agree that the total amount claimed due by the Plaintiff represents 80% of 200% of the 2007 Medicare Part B Physician Fee Schedule for the services at issue. The Defendant filed State Farm’s 9810A policy form, and the parties agree that it is the operative policy in this case.
The applicable fee schedule under Medicare for this claim is the 2007 Medicare Part B Physician Fee Schedule.Findings of law:
The construction of an insurance policy is a question of law for the court. See Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). Such contracts are interpreted in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. When a PIP insurer elects the fee schedule methodology set forth in FS 627.736(5)(a)1-5, (2013), the following provisions apply:
(5) . . . (a) . . . 1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
. . . . .
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) [which are inapplicable in this case].
. . . . .
2. For purposes of subparagraph [(5)(a)]1., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the year in which the services, supplies, or care is rendered and for the area in which such services, supplies, or care is rendered, and the applicable fee schedule or payment limitation applies throughout the remainder of that year, notwithstanding any subsequent change made to the fee schedule or payment limitation, except that it may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
3. Subparagraph [(5)(a)]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. An 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 limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes. However, subparagraph [(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. (Emphasis added).1
Thus, subsection (5)(a)1.a-f specifically identifies the fee schedules that apply, and although PIP insurers are also permitted to use “Medicare coding and payment methodologies,” they are expressly prohibited by subsection (5)(a)3 from applying “any limitation on the number of treatments or other utilization limits that may apply under Medicare or workers’ compensation.” Further, under subsection (5)(a)2, a PIP insurer may not reimburse in an amount that is less than the allowable amount under the applicable schedule of Medicare Part B for 2007.
The Court finds that State Farm’s 9810A policy is clear and unambiguous regarding its election to pay pursuant to FS 627.726(5)(a)(1)(f). Through the policy language quoted above, State Farm clearly elected to pay no less than 80% of “the allowable amount under the 2007 Medicare Part B physicians fee schedule”. That phrase is patent on the face of the policy.
The Court further finds that said policy does not clearly elect the MPPR, and does not permit Defendant to limit reimbursement to the Plaintiff to less than 80% of the allowable amount under the 2007 Medicare Part B physicians fee schedule. The policy controls. The policy clearly and unambiguously elects the 200 Percent of the Medicare Part B Fee schedule method of reimbursement, and does not mention any other method specifically enough to adopt. There is no clear election of the MPPR method. The general references regarding Medicare coding policies and procedures noted above, on page 5 and 16 of the policy, are vague and ambiguous, and do not clearly and unambiguously elect to pay pursuant to any other reimbursement methodology than the 80% of 200% of the 2007 Medicare Part B Physicians Fee Schedule method.
Additionally, this Court agrees with the Plaintiff that MPPR is applied as a utilization limit under Medicare to discourage overutilization. MPPR only applies when multiple services are rendered by the same health care provider, to the same patient, on the same day. Therefore, MPPR not only is a “limitation on the number of treatments”, (i.e., a reimbursement limitation on the number of treatments), but is also a utilization limit that “applies under Medicare,” which is prohibited by Section 627.736(5)(a)3. As such, the Defendant’s use of MPPR is expressly prohibited by Section 627.736(5)(a)3. See, SOCC, P.L. v. State Farm Mut. Auto. Ins. Co., 95 So.3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a] (holding that under former subsection (5)(a)4, now (5)(a)3, a PIP insurer may not apply Medicare’s NCCI because it is a limitation on the number of treatments or utilization limits that would apply under Medicare).
Moreover, even if MPPR were not prohibited by Section 627.736(5)(a)3, the Defendant has misapplied MPPR by superimposing the 2013 Medicare MPPR upon a 2007 Medicare fee schedule in violation of Section 627.736(5)(a)2, which provides that the reimbursement amount may not be less than the “allowable amount under the applicable schedule of Medicare Part B for 2007”.
Regarding relatedness and necessity, the Defendant admitted that it has no evidence to dispute that the services at issue were related and necessary (P.12, deposition of Jessica Capin); admitted that there is nothing in the file to show that Defendant at all investigated the medical necessity of the services at issue before making payment, (Id); submitted nothing with which to dispute relatedness and necessity; and further admitted relatedness and necessity in response to Plaintiff’s request for admissions numbers 10 and 11, and Interrogatories 12 and 13; despite reserving ‘right’ to keep disputing them.
Other Courts have held that generally, an insurer may not dispute the relatedness and necessity of services it already paid for without reservation “at any time.” Glenn Quintana v. State Farm, 19 Fla. L. Weekly Supp. 882a (County Court 11th Judicial Circuit 2012), MRI Services v. Star Casualty, 22 Fla. L. Weekly Supp. 856b (County Court 17th Judicial Circuit 2015), Florida Medical & Injury Center v. Progressive, 29 So.3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. Also, once an insurer makes payment for services under a fee schedule, as the Defendant did here, it cannot later contest the relatedness and necessity of those services. Florida Emergency Physicians v. Progressive, 21 Fla. L. Weekly Supp. 798a (County Court 9th Judicial Circuit 2014). Additionally, the inclusion of the payment in a PIP log is an assertion that the services were related and necessary. Health Diagnostics v. UAIC, 23 Fla. L. Weekly Supp. 287a (County Court 17th Judicial Circuit 2015). The Defendant may not under these circumstances dispute relatedness and necessity.
Accordingly, the Plaintiff’s Motion for Summary Judgment is hereby GRANTED, and the Defendant’s Cross Motion for Summary Judgment is hereby DENIED.
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1In the 2008-2011 versions of Section 627.736, these subsections were numbered as (5)(a)2, 3 and 4, respectively. Effective January 1, 2013, they were renumbered as subsections (5)(a)1, 2 and 3, respectively.
