24 Fla. L. Weekly Supp. 977a
Online Reference: FLWSUPP 2411JLOGInsurance — Personal injury protection — Coverage — Medical expenses — Insurer was permitted to apply Multiple Procedure Payment Reductions to secondary codes as outlined in its explanation of benefits — Application of MPPR is not a utilization limit
CONROY CHIROPRACTIC, INC., a/a/o Jessica Logan, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-SC-014446-O. November 18, 2016. Martha C. Adams, Judge. Counsel: Pamela Rakow-Smith, Eiffert & Associates, P.A., Orlando, for Plaintiff. Maria Pace and Robert M. Lyerly, Maitland, for Defendant.
ORDER ON DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND INCORPORATEDMEMORANDUM OF LAW AND PLAINTIFF’S RESPONSETO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTAND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on October 31, 2016 on Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law and Plaintiff’s Response to Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment, and the Court having heard argument of counsel, and being otherwise advised in the premises, finds as follows:FACTS
The facts in this case are not in dispute. On November 7, 2014, Jessica Logan was involved in a motor vehicle accident in which she allegedly sustained injuries. As a result of those alleged injuries, Jessica Logan sought treatment with the Plaintiff for dates of service 11/17/2014 to 04/28/2015. Jessica Logan executed and assignment of benefits, assigning to Plaintiff her rights under her policy of insurance with Defendant. At the time of the accident Jessica Logan was covered under Defendant’s Policy Form 9611D FL (07/13). The bills submitted to the Defendant were paid under the permissive payment methodology of Fla. Stat. 627.736(5)(a)(1)-(3). The Plaintiff agrees that the Defendant’s policy clearly and unambiguously elects the permissive payment methodology of Fla. Stat. 627.736(5)(a)(1)-(3).
Based on the policy period, Fla. Stat., §627.736 (2013) applied to the policy at issue. The pertinent part of Fla. Stat., §627.736 applicable to the competing motions for summary judgment are as follows:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
* * *
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. 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)
4. If an insurer limits payment as authorized by subparagraph 1., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.
The applicable policy provisions are as follows:
Unreasonable or Unnecessary Medical Benefits. If an insured person incurs medical benefits that we deem to be unreasonable or unnecessary, we may refuse to pay for those medical benefits and contest them.
We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in Section 627.736(5)(a)(2) (a through f) of the Florida Motor Vehicle No-Fault Law, as amended. Pursuant to Florida law, we will limit reimbursement to, and pay no more than, 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 fee schedule of Medicare Part B, except as follows:
(1) for services, supplies and care provided by ambulatory surgical centers and clinical laboratories, 200 percent of the allowable amount under Medicare Part B; and
(1) for durable medical equipment, 200 percent of the allowable amount under “The Durable Medical Equipment Prosthetics/Orthotics and Supplies” fee schedule of Medicare Part B.
However, if such services, supplies or care is not reimbursable under Medicare Part B, as provided in this subsection 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 Statutes, 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 will not be reimbursed by us.
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. This 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 schedules of Medicare Part B for 2007 for medical services, supplies and care subject to Medicare Part B. 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 policies 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). (emphasis added)
We will reduce any payment to a medical provider under this Part II(A) by any amounts we deem to be unreasonable medical benefits. However, the medical benefits shall provide reimbursement only for such services, supplies and care that are lawfully rendered, supervised, ordered or prescribed. Any reductions taken will not affect the rights of an insured person for coverage under this Part II(A). Whenever a medical provider agrees to a reduction of medical benefits charged, any co-payment owed by an insured person will also be reduced.
The insured person shall not be responsible for payment of any reductions applied by us. If a medical provider disputes an amount paid by us, we will be responsible for resolving such dispute. If a lawsuit is initiated against an insured person as a result of the reduction of a medical bill by us, other than reductions taken pursuant to FL St. 627.736(5)(a)(1) (a through f), we will provide the insured person with a legal defense by counsel of our choice, and pay any resulting judgment. The insured person must cooperate with us in the defense of any claim or lawsuit. If we ask an insured person to attend hearings or trials, we will pay up to $200 per day for loss of wages or salary. We will also pay other reasonable expenses incurred at our request.
ISSUES
Whether Progressive was permitted to apply Multiple Procedure Payment Reductions (“MPPR”) to secondary codes as outlined in the Explanation of Benefits. If Progressive was permitted to apply MPPR to Plaintiff’s claims, was the application of MPPR a utilization limit and/or whether Progressive properly applied MPPR. Secondly, did the Defendant properly reimburse Plaintiff at the 2007 Participating Physician Fee Schedule Rate when that amount was higher than the MPPR. Finally, as it relates to the January 20, 2015 date of service, did Progressive waive its right to utilize the fee schedule amount for CPT code 97110 by paying 80% of 200% of the 2015 fee schedule amount which was greater than the 2014 fee schedule amount.
ANALYSIS
As to whether Progressive was permitted to apply MPPR to Plaintiff’s charges, the Court is guided by the opinion of the Florida Supreme Court in GEICO General Ins. Co. v. Virtual Imaging Services,141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] and Allstate Fire & Cas. Ins. Co. v. Stand-Up MRI of Tallahassee, 188 So. 3d 1 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]. It is also guided by the fact that the legislature substantially amended the PIP statute to allow insurance companies like Progressive to use Medicare’s coding policies and payment methodologies when determining reimbursement under Fla. Stat., §627.736(5)(a)(1)-(3). Based on the plain meaning statutory language set forth in Fla. Stat., §627.736(5)(a)(1)-(3) and the terms of the policy, which mirror the statute, Progressive is permitted to utilize Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services to calculate the reimbursement amounts for Plaintiff’s charges so long as their application does not result in a utilization limit.
As to whether the application of MPPR by Progressive resulted in a utilization limit, there was no record evidence that the application of MPPR resulted in any limitation of the services provided to the patient. The application of MPPR in this case did not reduce the number of treatments or in any way prohibit the patient from receiving treatment. If anything, the application of MPPR resulted in a reduction of the reimbursable amounts for the charges at issue thereby allowing the patient to receive additional services. See Federal Register, Vol. 75, page 73241 (Nov. 29, 2010), “Paying more appropriately for therapy services in CY 2011 will allow patients to receive more medically necessary therapy services before reaching the therapy cap.” The Court is also persuaded by the decisions in SOCC, PL, a/a/o Youssef Assal v. Progressive American Ins. Co., No. 15-CC-015856 (Fla. 13th Cir. Ct. Apr. 18, 2016) [24 Fla. L. Weekly Supp. 163b] (Medical provider’s argument that MPPR is a utilization limit simply because it limits reimbursement would mean that any cost containment measure would result in a reduction of remuneration for the medical provider and as a result would have an influence the manner and method of treatment.); Path Medical-Broward a/a/o Shanti Bryant v. Progressive Select Ins. Co., No. CON015005212 (Fla. 17th Cir. Ct. Jun. 15, 2016) [24 Fla. L. Weekly Supp. 894a] (MPPR is a payment methodology and not a utilization limit); Multicare Rehabilitation, LLC a/a/o Robert Rego v. Progressive Select Ins. Co., No. COCE14022054 (Fla. 17th Cir. Ct. Jan. 14, 2016) [24 Fla. L. Weekly Supp. 171a] (MPPR is a payment methodology and not a utilization limit, otherwise, the language added by the legislature would be meaningless); AFO Imaging, Inc. a/a/ Asha Brown v. State Farm Mutual Auto. Ins. Co., No. 14-0888 (Fla. 13th Cir. Ct. Mar. 15, 2016) [24 Fla. L. Weekly Supp. 165b] (“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 effencies achieved from furnishing multiple procedures in a single session on a single day.”); and Millennium Radiology, LLC a/a/o Angela Renteria v. State Farm Fire & Cas. Ins. Co., Fla. L. Weekly Supp. 2304RENT (Fla. 11th Cir. Ct. Aug. 11, 2015) [23 Fla. L. Weekly Supp. 360a] (MPPR is a payment methodology).
The Court finds that SOCC, PL v. State Farm Mut. Ins. Co., 95 So. 3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a] (regarding whether State Farm could utilize NCCI edits) and Nationwide Mut. Ins. Co. v. AFO Imaging, Inc., 71 So. 3d 134 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D1463b] (regarding the application of OPPS to MRI bills) are inapplicable, as they both interpret the 2008 version of Florida Statutes, §627.736(5), which did not specifically provide that insurance companies like Progressive may utilize Medicare coding policies and payment methodologies in determining the amount of reimbursements under the schedule of maximum charges.
As for Plaintiff’s argument that Progressive improperly applied MPPR to lower the reimbursable amount to the 2007 fee schedule amount instead of paying based on the 2014 and 2015 fee schedule amounts, the Court has considered the terms of the policy and Fla. Stat. §627.736(5)(a)2., which mirror each other. Fla. Stat. §627.736(5)(a)2. provides as follows:
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.
As stated above, the legislature specifically gave Progressive the right to utilize the Medicare coding polies and payment methodologies to determine the reimbursement amounts; however, it also clearly and unambiguously mandated that the fee schedule amount could not be less than the allowable amount under the 2007 fee schedule. The Court finds that based on Fla. Stat. 627.736(5(a)(2), the Defendant properly paid Plaintiff at the 2007 Participating Physician’s Fee Schedule, as that rate was higher than Participating Physician’s Fee schedule with MPPR.
Lastly, the Court finds the statute provides that the fee schedule or payment limitation is the fee schedule in effect on March 1 of the year the services were rendered. The January 20, 2015 date of service was clearly rendered in 2015. By Plaintiff’s own admission, the 2015 fee schedule amount used by Progressive was greater than the 2014 fee schedule amount. It is also important to note that the aforementioned statutory provision was subsequently amended to provide that the applicable fee schedule is from March 1 through the end of February of the following year. See Fla. Stat., §627.736(5)(a)2 (2016). As such, Progressive did not breach the policy or waive its right to utilize the fee schedule by following the statue and paying based on the fee schedule in effect on March 1 of 2015. By properly applying the schedule of maximum charges, there is no dispute over the reasonableness of Plaintiff’s charges. Fla. Stat., §627.736(5)(a)4. and the terms of the policy clearly prohibit Plaintiff from billing or attempting to collect any amount in excess of the fee schedule amounts already paid, except for amounts not covered by the insureds PIP coverage due to coinsurance amounts or maximum policy limits, neither of which was evident by the arguments of the parties and the record evidence before the court.
It is hereby ORDERED and ADJUDGED:
1. Plaintiff’s Motion for Summary Judgment is Denied. Defendant’s Motion for Summary Judgment is Granted. Plaintiff shall take nothing from its complaint and Defendant shall go hence forth without day.
