23 Fla. L. Weekly Supp. 793b
Online Reference: FLWSUPP 2307BAPTInsurance — Personal injury protection — Coverage — Medical expenses — Both applicable 2013 version of PIP statute and amendatory endorsement to PIP policy allow insurer to apply Medicare Part B fee schedules and Outpatient Prospective Payment System cap to calculate reimbursement of claim
PRECISION DIAGNOSTIC, Inc. a/a/o ROSELIE JEAN BAPTISTE, Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 562014SC00720C2XXXX. June 22, 2015. Kathryn M. Nelson, Judge. Counsel: Todd A. Landau, Landau & Associates, P.A., Hallendale Beach, for Plaintiff. Suzette M. Alfonso, Dutton Law Group, P.A., Pompano Beach, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
This Matter came before the Court for hearing on April 13, 2015 on Defendant’s Motion for Final Summary Judgment Regarding Payment at the Fee Schedule, specifically whether its policy and the 2013 Florida No-Fault Law allow it to apply the payment methodology/limitation known as the Outpatient Perspective Payment System (the “OPPS cap”). The Court, having heard argument of counsel, having reviewed the record and being otherwise duly advised in the premises, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The subject case involves a claim for Personal Injury Protection (“PIP”) benefits filed by the Plaintiff, Precision Diagnostic, Inc. (hereinafter “Plaintiff” or “PRECISION”) as assignee of Roselie Jean Baptiste (hereinafter “Baptiste”) against the Defendant, Mercury Insurance Company of Florida (hereinafter “Defendant” or “MERCURY”) arising out of an accident that occurred on March 4, 2013, and treatment provided to Baptiste thereafter by PRECISION.
2. At the time of the aforementioned accident, Baptiste was insured under a policy of insurance issued to Jandre Jean Baptiste by the Defendant (hereinafter, “Policy”). This Policy provided PIP benefits with statutory limits of $10,000.00.
3. The Policy was also subject to an Amendatory Endorsement (hereinafter, “U-85”).
4. The pertinent parts of MERCURY’S U-85 01/2013 endorsement state:
PART II – PERSONAL INJURY PROTECTION COVERAGE P is deleted and replaced by the provisions set forth in this endorsement.
PART II — PERSONAL INJURY PROTECTION (“PIP”)
COVERAGE P
* * *
5. Medical Benefits shall be payable at the lesser of:
a. 80% of the actual charge, or
b. 80% of the following schedule of maximum charges contained in the No-Fault Law:
* * *
6. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. . . . However, if such services, supplies, or care is not reimbursable under Medicare Part B, we may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes Title 31, s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies or care that is not reimbursable under Medicare or worker’s compensation will not be reimbursed.
7. For purposes of subparagraph 5(b)(6), if a Current Procedural Terminology (CPT) code is not reimbursable under the participating physicians schedule of Medicare Part B at the time the service, supplies or care was rendered, we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes Title 31, s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.
c. For purposes of item b. above 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, . . .
We will use and apply, at our election, the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, and applicable modifiers to determine the appropriate amount of reimbursement for medical services, supplies, and care if the coding policy or payment methodology does not constitute a utilization limit.
d. Charges are subject to any and all other limitations on reimbursement for medical treatment, services, supplies, and care as stated in the No-Fault Law.
(Underlining added for emphasis.)
4. Following the accident, Baptiste sought treatment from a number of providers, including PRECISION, an imaging service provider.
5. For such treatment, the Plaintiff submitted to the Defendant a HICF/CMS 1500 which indicated a charge of $1,600.00 for CPT Code 72148.
6. The terms of MERCURY’s Policy implement Fla. Stat. §627.736(5)(a)(1)(2013). That statute states, in pertinent part:
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 schedule of Medicare part B . . . .
2. For purposes of subparagraph 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 is rendered . . .
3. . . . However, subparagraph 1. Does not prohibit an insurer from using the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, and applicable modifiers to determine the appropriate amount of reimbursement for medical services, supplies, and care if the coding policy or payment methodology does not constitute a utilization limit.
(Underlining added for emphasis.)
7. In adjusting the claim, MERCURY reduced the billed amount of $1,600.00 to $865.041, which it determined was the maximum “allowed amount” and issued payment to Plaintiff for 80% of that amount.
8. MERCURY determined the allowed amount by applying the payment methodology/limitation known as the Outpatient Perspective Payment System (the “OPPS cap”).
9. PRECISION claims that MERCURY did not pay the full amount of its claim, because MERCURY may not apply the OPPS cap in limiting reimbursement to PRECISION, and that the “allowed amount” may not be less than the allowable amount under the participating physicians fee schedule of Medicare Part B for 2007.
10. MERCURY moved for summary judgment to determine whether it was correct in limiting reimbursement of the PRECISION’s charges in accordance with the fee schedules described in Sections 627.736(5)(a)(1)-(3)(2013), Florida Statutes, and MERCURY’S policy of insurance.
11. There is no dispute that MERCURY paid personal injury protection (PIP) benefits to PRECISION in accordance with the fee schedules set forth in the statute, subject to the OPPS cap.
12. The issue presented is whether MERCURY was entitled to do so under the terms of its policy and the 2013 Florida No-Fault Law.LEGAL ANALYSIS
A. Brief History of Fee Schedules, Payments for MRIs and the Florida No-Fault Law
Under the old PIP statutory structure beginning in 2001, when fee schedules for MRIs were first introduced in into the law, reimbursements by insurers to MRI providers were based on the 2001 participating physicians fee schedule of Medicare Part B, plus annual “consumer price increase” adjustments.
Specifically, the statute stated as follows, in material part:
(5) Charges for treatment of injured persons. —
(b) 5. . . . Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year’s changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year, . . .
§ 627.736(5)(b)(5), Fla. Stat. (emphasis added).
This payment system engendered substantial litigation and class actions over how the consumer price increase was to be applied. See e.g. Millennium Diagnostic Imaging Ctr., Inc. v. Security Nat. Ins. Co., 882 So. 2d 1027 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1817b]; Clearview Imaging, LLC v. State Farm Mut. Auto. Ins. Co., 932 So. 2d 423 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1120a]; Progressive Auto. Pro. Ins. Co. v. One Stop Medical, Inc., 985 So. 2d 10 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1052a]. Medicare, at that time, reimbursed diagnostic imaging procedures at varied amounts depending on whether the MRI was performed in a hospital outpatient facility or a facility unrelated to a hospital, such as an independent diagnostic facility like the Plaintiff. Hospital outpatient procedures and procedures performed in a hospital were paid pursuant to the hospital prospective payment system, either outpatient under “OPPS” or inpatient under “IPPS.” See 42 C.F.R. Pt. 419.
In 2005, the United States Congress passed the Deficit Reduction Act (“DRA”), which specifically provided that Medicare fees for certain imaging services covered by the physician fee schedule may not exceed what Medicare pays for these same services performed in an institutional setting such as a hospital outpatient department through its Outpatient Prospective Payment System.
Under the DRA, reimbursement for the technical component of imaging services performed in an office or independent facility, would equal the lesser of the amount under the Medicare physician fee schedule or the amount payable to hospitals under OPPS. See Deficit Reduction Act of 2005, § 5201(b)(1), 42 U.S.C. 1395w-4(b) (2005).
Returning to the State, Florida’s legislature ultimately repealed the No-Fault Law contained in sections 627.730-627.7405, Florida Statutes, effective October 1, 2007. Ch. 2003-411, §19, Laws of Fla. Shortly after this repeal, the legislature “revived and reenacted” the statutory scheme, making significant amendments to section 627.736, Florida Statutes. Ch. 2007-324, Laws of Fla. The amendments went into effect on January 1, 2008, and all policies in effect on that date were deemed to incorporate the provisions of the act, as amended. Ch. 2007-324, §21, Laws of Fla. As to payment of benefits, specifically those for MRI services, these amendments provided as follows, in relevant part:
(5) Charges for treatment of injured persons. —
(a) 1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment,, . . . . .
2. 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 applicable Medicare Part B fee schedule. However, 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, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the applicable 2007 Medicare Part B fee schedule for medical services, supplies, and care subject to Medicare Part B.
§ 627.736(5)(a)(1)-(3), Fla. Stat. (emphasis added)
Not long after these revisions went into effect, the legislature made an additional change to the language to specify the “participating physician fee schedule” as the relevant part of Medicare Part B. Specifically, these amendments altered the payment obligation in section 627.736(5), Florida Statutes, as follows:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a)1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment. . .
2. 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 the participating physicians schedule of Medicare Part B. However, 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, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule 1of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
§ 627.736(5)(a)(1)-(3), Fla. Stat. (emphasis added).
Insurers began to reimburse expenses according to the fee schedules described in Medicare Part B, including the OPPS payment limitation, and providers began to challenge the propriety of such adjustments. On that backdrop, Courts began to issue opinions about the meaning of the 2008 amendments as they related to payment obligations and entitlements.
As to the “OPPS cap,” the Second District held in Nationwide Mutual Fire Insurance Company v. AFO IMAGING, Inc., that the explicit reference to the “participating physician’s schedule” in the second 2008 amendment to the Florida No-Fault Law precluded the use of other payment limitations. 71 So. 3d 134, 138 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b]. In other words, “PIP insureds covered under Florida law [as amended in 2008] could not have been capped by the OPD fee schedule amount payable by Medicare under OPPS.” Id.
In 2012, the legislature again amended the Florida No-Fault Law. The amendment took effect in July 2012, and states as follows with regard to reimbursement of charges:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment . . .
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), (II) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories, (III) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment. However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
2. For purposes of subparagraph 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. . . . [S]ubparagraph 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.
§ 627.736(5)(a)(1)-(3), Fla. Stat. (emphasis added).
The July 1, 2012 changes to the Florida No-Fault Law make a distinct change to reimbursement obligations and entitlements by removing exclusive references to the “participating physicians fee schedule” and by explicitly indicating that payment limitations, methodologies, and coding policies under Medicare Part B can be applied in issuing reimbursement to providers under PIP.
B. The 2012 Amendments to the Florida No-Fault Law Are Expressly Set Forth in the Subject Policy and Authorize Use of the “OPPS Cap”
The contract of insurance in effect between Baptiste and the Defendant expressly incorporated the Medicare Part B fee schedules as a method of reimbursement. Moreover, it expressly states that MERCURY may use and apply “the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, and applicable modifiers to determine the appropriate amount of reimbursement for medical services, supplies, and care if the coding policy or payment methodology does not constitute a utilization limit.”
In this instance, both the U-85 Amendatory Endorsement and the 2013 version of the No-Fault Law allow the Defendant to apply the Medicare Part B fee schedules, subject to the provisions of the Florida No-Fault Law.
Section 627.736(5)(a)(5), Florida Statutes, provides as follows:
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 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 policy and Amendatory U-85 Endorsement that is relevant to this action were issued simultaneously to Alfredo Baptiste, on May 24, 2013, and the U-85 01/2013 Amendatory Endorsement was approved by the Office of Insurance Regulation. Accordingly, the Policy and Amendatory Endorsement provided its insured with the notice required by Section 627.736(5)(a)(5), Florida Statutes, thereby allowing the Defendant to limit payment pursuant to the schedules of charges specified in Section 627.736(5), which includes Section 627.736(5)(a)(3) allowing for Defendant to use “the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services.”
As assignee of Roselie Jean Baptiste, Plaintiff is deemed to also have notice of the Policy and U-85 endorsement terms. Moreover, the accident which forms the basis of the subject claim occurred on June 1, 2013. Thus, it is undisputed that the 2013 version of the Florida No-Fault Law applies to this claim.
Like contracts, statutes must be read as a whole to give effect to the plain meaning of the terms used therein. See A.R. Douglass, Inc., v. McRainey, 137 So. 157, 159 (Fla. 1931). In reading the terms to construe the statute, legislative intent must be the polestar to the court’s analysis. Larimore v. State, 2 So. 3d 101 (Fla. 2008) [33 Fla. L. Weekly S948a]. Courts are not to presume that a given statute employs “useless language.” Johnson v. Feder, 485 So. 2d 409 (Fla. 1986). See also Gretz v. Florida Unemployment Appeals Commission, 572 So. 2d 1384 (Fla. 1991) (holding that statutes should be construed to give each word effect). Where possible, the court must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Villery v. The Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla. 1980).
Statutory interpretations that render statutory provisions superfluous are, and should be, disfavored. Courts must assume that statutory provisions are intended to have some useful purpose. Here, while subsection (5)(a)(1) states that payment should be based on “the participating physicians fee schedule” of Medicare Part B for general medical services, the next two subsections do not contain such a limitation. Instead, the legislature expressly stated in subsection (5)(a)(2) that the applicable fee schedule or payment limitation under Medicare that is in effect on March 1 of the year in which services were rendered is used, except that reimbursement may not be less than the allowable amount under “the applicable schedule” of Medicare Part B for 2007 medical services. § 627.736(5)(a)(2), Fla. Stat. (emphasis added).
Subsection (5)(a)(3) goes further, stating that subsection (5)(a)(1) does not limit an insurer from using Medicare coding policies and payment methodologies used by CMS to determine appropriate reimbursement. § 627.736(5)(a)(3), Fla. Stat.
In forming these provisions regarding how the fee schedules were to be implemented, the legislature could have included a reference to “the participating physicians fee schedule” as the only fee schedule for consideration; indeed, it did in previous versions of this subsection. By excluding this limitation and including references to “payment limitations,” “applicable schedules of Medicare Part B,” “Medicare coding policies,” and “payment methodologies used by CMS,” the Florida legislature showed an intention to depart from the restrictions of the previous versions of its statute.
It has long been held that a “statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.” Larimore, 2 So. 3d 101 (Fla. 2008). “The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the legislature’s intent.” Id.
Here, giving effect to the legislative intent shown by the plain language of the first three subsections of section 627.736(5), Florida Statutes, requires a finding that “the participating physicians fee schedule” is not the only fee schedule for consideration. Moreover, Medicare Part B payment methodologies or limitations are appropriate considerations in determining the proper reimbursement for services like those provided by the Plaintiff. The “OPPS cap” utilized by the Defendant in this case is payment methodology or limitation under Medicare Part B, and may be used in determining allowable reimbursement.
C. Distinguishing prior OPPS case law from the current No-Fault Law
(i) Nationwide v. AFO is Distinguishable
Numerous courts previously issued opinions about the meaning of the 2008 amendments as they related to payment obligations and entitlements. For example, in Nationwide Mutual Fire Insurance Company v. AFO IMAGING, Inc., 71 So. 3d 134 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b], the Second District held that insurers could not cap their reimbursement for MRI services by using the OPPS cap.
While this Court acknowledges the Second District Court’s holding in the Nationwide decision, a review of the decision shows that the decision was based on the 2008 amendments to the Florida No-Fault Law, specifically those adding the “participating physicians fee schedule” language after the revived statute went into effect. Specifically, the Second District stated as follows:
The final judgment, . . . , rests upon a declaration of the parties’ respective rights and obligations under section 627.736, Florida Statutes (2008), in regard to PIP benefits.
. . .
As reflected above, subsections (5)(a)(2)(f) and (5)(a)(3) as amended by the Florida legislature in 2008, expressly designated “the participating physicians schedule of Medicare Part B” as the operative fee schedule to be utilized in computing the minimum amount the Insurance Companies were statutorily allowed to remit for the type of medical services, supplies, and care provided to the PIP insureds by the MRI providers.
The computations relied upon by the Insurance Companies, however, had capped the payments due for the MRI services based on OPPS, which required an additional, limiting schedule in determining allowable Medicare payments under Medicare Part B. This additional schedule, under federal law, was to be utilized in calculating authorized Medicare payments for the technical component of certain imaging services-it acted as a limitation on the amounts that federal law would allow for certain services provided to Medicare recipients.
Id. (emphasis added).
The express designation of “the participating physicians schedule” has been removed from the majority of the provisions in the current version of the statute. In its place are provisions that allow an insurer to consider additional limitations utilized by Medicare, such as the OPPS cap, which courts have noted is a component of Medicare Part B. Id.
The distinction between the 2008 and 2013 versions of Section 627.736(5)(a) are evident when comparing the pertinent language of the statute side-by-side:
| Section 627.736, Fla. Stat.(2008) | Section 627.736, Fla. Stat.(2013) |
| (5)(a) 2. 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 the participating physicians schedule of Medicare Part B. However, 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, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer. | (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). (II) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories. (III) The Durable Medical Equipment Prosthetics/ Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment. However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer. |
| (5)(a) 3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B. | (5)(a) 2. For purposes of subparagraph 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. |
| (5)(a) 4. Subparagraph 2. 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 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 limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes. | (5)(a) 3. 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. 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 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.)
Accordingly, the Second District decision of Nationwide Mutual Fire Insurance Company v. AFO IMAGING, Inc. and similar county court decisions are distinguishable from the present case as they were based on language contained in the 2008 version of the Florida No-Fault Law, which is absent from the current version that applies to this case. Also of note is that the court in Central Imaging Center Open MRI a/a/o Gene Pullen v. State Farm Mutual Auto. Ins. Co. specifically stated that “OPPS is a payment limitation, not a fee schedule.” 18 Fla. L. Weekly Supp. 80b (6th Jud. Cir. Cty. Ct. Aug. 5, 2010).
CONCLUSION
The interpretation of an insurance policy and the legal impact of a statute are matters of law for determination by the judge, and thus appropriate for summary judgment. See e.g. Peacock Const. Co., Inc. v. Modern Air Conditioning, Inc., 353 So. 2d 840, 842 (Fla. 1977) (finding the interpretation of a contract to be a question of law); Fitzgerald v. S. Broward Hosp. Dist., 840 So. 2d 460, 461 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D813b] (finding the interpretation of a statute central to summary judgment appropriate for de novo review).
Summary Judgment is proper where “pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(b) (2013). Courts have long held that “the burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.” Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).
The Defendant’s Motion for Summary Judgment presents an issue of interpretation of an insurance policy and the legal impact of a statute, and thus summary judgment is proper.
A review of the history of the Florida No-Fault Law with regard to reimbursement for MRI treatment and the application of the fee schedules reveals a clear legislative intent not to limit reimbursement based solely on “the participating physicians schedule.”
The subject Policy expressly incorporates the language of the 2013 Florida No-Fault Law which authorizes use of the Medicare Part B fee schedules. Further, the subject Policy and Section 627.736(5)(a)(3)(2013), Florida Statutes, allow for application of the payment methodology/limitation known as the “OPPS cap.”
It is therefore
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is hereby granted. Judgment is entered in favor of the Defendant. The Plaintiff shall take nothing by this action and the Defendant shall go hence without day. The Court reserves jurisdiction to determine taxable costs and attorneys fees, as applicable.
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1MERCURY utilized the “Locality” of Ft. Lauderdale in determining this amount, although it is undisputed that the service at issue was provided in Port St. Lucie, which is the “Locality” of “Rest of Florida” as per the Centers for Medicare and Medicaid Services. “Rest of Florida” reflects a lower pricing figure for the CPT code at issue, and accordingly, MERCURY overpaid the charge. MERCURY has not asserted a counterclaim, thus, this Order shall not order Plaintiff to issue reimbursement to the Defendant for overpayment.
