24 Fla. L. Weekly Supp. 165b
Online Reference: FLWSUPP 2402ABROInsurance — Personal injury protection — Coverage — Medical expenses — Insurer was authorized to apply Medicare Multiple Procedure Payment Reduction to medical provider’s bills where PIP statute authorizes use of Medicare coding policies — MPPR is not utilization limit prohibited by PIP statute — No merit to claim that insurer misapplied MPPR by imposing 2013 MPPR on 2007 Medicare fee schedule where PIP statute’s requirement that allowable amount may not be less than 2007 Medicare fee schedule refers to base reimbursement amount and does not require substitution of 2007 coding policies and payment methodologies if those would result in higher amounts than use of current policies and methodologies
AFO IMAGING, INC., a/a/o Asha Brown, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County; Civil Division. Case No. 14-0888, Division H. March 15, 2016. Honorable Christopher C. Nash, Judge. Counsel: Christopher P. Calkin, Mike N. Koulianos, and David M. Caldevilla, Tampa, for Plaintiff. Robert H. Oxendine and Roy A. Kielich, Oxendine & Oxendine, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’SSECOND AMENDED MOTIONFOR SUMMARY JUDGMENT ANDDENYING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 19, 2015, concerning: (1) the “Plaintiff’s Motion for Partial Summary Judgment Regarding Defendant’s Application of Multiple Procedure Payment Reductions” filed on September 11, 2015, and (2) the “Defendant’s Second Amended Motion for Full and Final Summary Judgment” filed on September 14, 2015. The Court, having considered the motion, the arguments of counsel, and the record, and being otherwise advised in the premises, the court enters the following Order:
This is a personal injury protection (“PIP”) case, where the Plaintiff’s single-count complaint seeks an award of damages for unpaid no-fault benefits.
1. For purposes of the legal issues raised by the parties’ competing motions for summary judgment, the parties agree and this Court finds that there are no genuine disputed issues of material fact.
2. The following material facts are undisputed. The insured patient, Asha Brown, was involved in a motor vehicle accident on September 22, 2013, and at that time, she was insured by a policy of insurance with PIP coverage issued by the Defendant (Policy Form 9810A). On September 26, 2013, pursuant to an assignment of benefits, the Plaintiff performed two MRls, corresponding to CPT Codes 72141 and 72148. The Plaintiff performed these two procedures on the insured patient on the same day, during the same visit. In processing the Plaintiff’s PIP claim, the Defendant reduced the Plaintiff’s charges based on Medicare’s Multiple Procedure Payment Reduction (“MPPR”). According to the Defendant, its payment for both CPT Codes 72141 and 72148 was based upon 200% of the 2007 version of Medicare’s limiting charge fee schedule, and then the Defendant applied the 2013 version of MPPR to those charges, resulting in a 25% reduction to amount of the professional component (PC) for CPT Code 72148 and a 50% reduction to the of the technical component (TC) for CPT Code 72141.
3. The Defendant’s motion for summary judgment contends that it was authorized to apply MPPR to the Plaintiff’s bill for multiple treatments rendered to the same insured patient on the same date of service. In contrast, the Plaintiff’s motion for partial summary judgment contends that the PIP statute prohibits the Defendant from relying on MPPR, and that even if the Defendant is authorized to use MPPR, the Defendant misapplied MPPR resulting in an unlawful underpayment.
4. MPPR is used by the federal Medicare program. The U.S. Department of Health, Centers for Medicare & Medicaid Services (“CMS”) is the federal agency that runs the Medicare program. As explained in MLN Matters No. MM7747 (Aug. 2, 2012),1 MPPR applies only “when multiple services are furnished by the same physician, to the same patient, in the same session, on the same day.” Id. at p. 1.
5. For purposes of this particular case, the Plaintiff does not challenge the Defendant’s ability to rely on the fee schedule methodology set forth in Section 627.736(5)(a)1-5, Florida Statutes (2013), and is willing to accept payment of the fee schedule method amount. Thus, the issue is whether the Defendant’s reliance upon MPPR has resulted in a payment that is less than the minimum amount payable pursuant to the fee schedule method.2
6. Assuming a PIP insurer properly elects to utilize the fee schedule method,3 the PIP statute provides the following terms and conditions which are applicable to the type of non-emergency non-hospital services rendered in this case:
(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.
§627.736(5)(a)1-3, Fla. Stat. (2013) (emph. added).4 Thus, subsections (5)(a)1.a through f specifically identify the particular fee schedules and payment limitations 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 apply under Medicare or workers’ compensation.”
7. Florida’s No-Fault Law, codified in Florida Statue § 627.736, has been subject to several versions and amendments. Under prior versions of the No-Fault statute, Florida courts did not permit the use of Medicare payment methodologies and/or coding policies in calculating reimbursement amounts. See e.g. SOCC, P.L. v. State Farm Mutual Auto. Ins. Co., 95 So. 3d 903, 908 (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, 135 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b] (finding an insurer may not base payments on Medicare’s Outpatient Prospective Payment System (“OPPS”)). By contrast, this claim arises under the 2012 version of the No-Fault Statute, which explicitly permits an insurer to consider Medicare coding policies and payment methodologies when determining a reasonable charge under Fla. Stat. § 627.736(5)(a)(1).
8. Applying the plain meaning of §627.736(5)(a)(3), the 2012 No-Fault Statute now permits an insurer 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 No-Fault 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, 223 (Fla. 2007)[32 Fla. L. Weekly S453a].
9. The Plaintiff contends that the use of the MPPR payment methodology should be disallowed under Fla. Stat. § 627.736(5)(a)(3) as an improper utilization limit. This court disagrees. MPPR does not limit the use or duration of services and does not prevent the insured from accessing any procedure. Rather, it simply reduces payment based on the efficiencies achieved from furnishing multiple procedures in a single session on a single day. Accordingly, Defendant’s application of the MPPR is permitted under No-Fault Statute.
10. The Plaintiff further contends that Defendant misapplied MPPR by superimposing the 2013 Medicare MPPR upon a 2007 Medicare Fee Schedule, in violation of Fla. Stat. § 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.”
11. However, the court finds that Defendant properly applied the MPPR payment methodology in this case. Subparagraphs (2) and (3) of § 627.736(5)(a) do not modify each other, but instead each separately modify subparagraph (1) of § 627.736(5)(a).
12. In the instant case, subparagraph (2) refers to the calculation of the base reimbursement amount — i.e., 200 percent of the allowable amount under the “participating” fee schedule of Medicare part B. Defendant calculated this amount appropriately. Defendant applied the required higher 2007 limiting non-facility charge to calculate the base amount. This paragraph does set a floor for the base reimbursement amount — it provides that the “allowable amount” taken from the applicable schedule of Medicare Part B may not be less than the allowable amount under the 2007 Medicare Part B Schedule. However, this paragraph does not address or govern the application of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services. The use of such coding policies and payment methodologies was not permitted when this provision was first added to the No-Fault Statute in 2007. Fla. Stat. § 627.736 (2007); see SOCC, P.L., 95 So. 3d at 908; Nationwide Mutual Fire Ins. Co. v. AFO Imaging, Inc., 71 So. 3d at 135. Notably, unlike subparagraph (2), subparagraph (3) does not include any requirement regarding the “substitution” of 2007 methodologies in the event those would result in higher amounts than the use of 2013 methodologies.
BASED ON THE FOREGOING, it is hereby:
ORDERED AND ADJUDGED that the Defendant’s Second Amended Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment Regarding Defendant’s Application of Multiple Procedure Payment Reductions is DENIED.
This Court reserves jurisdiction to consider any applicable claims for reasonable attorneys’ fees and costs, if any.
__________________
1MLN Matters is CMS’s official publication that contains articles designed to inform health care professionals about the latest changes to CMS programs, including Medicare. The publication is available on CMS’s internet website at www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/inclex.html.
2See, Nationwide Mutual Fire Insurance Co. v. AFO Imaging Inc., 71 So.3d 134, 137 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b](explaining that the fee schedule method is used in calculating the “minimum amount” of PIP benefits that insurance companies are statutorily required to pay) (emph. added).
3Because the Plaintiff does not challenge the Defendant’s ability to rely on the fee schedule methodology set forth in Section 627.736(5)(a)1-5, Florida Statutes (2013) and is willing to accept payment of the fee schedule method amount, the Court does not need to reach the Defendant’s contention that it lawfully placed its insureds on notice of its intent to elect the fee schedule method in the manner required by cases such as Geico Gen. Ins. Co. v. Virtual Imaging Serv’s., Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
4In 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.
