24 Fla. L. Weekly Supp. 721a

Online Reference: FLWSUPP 2409SCOIInsurance — Personal injury protection — Coverage — Medical expenses — Nurse practitioner — Assuming PIP policy properly elects to limit reimbursement to permissive statutory fee schedule, insurer was not entitled to reimburse for services provided by nurse practitioner at 85% of 80% of 200% of allowable amount under participating physicians fee schedule of Medicare Part B rather than at 80% of 200% of allowable amount under fee schedule

CRESPO & ASSOCIATES, P.A., as assignee of Ben Scoi, Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-002417, Division U. November 23, 2016. Frances M. Perrone, Judge. Counsel: Anthony T. Prieto, Prieto, Prieto, & Goan, P.A., Tampa, and David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa, for Plaintiff. David Dougherty, Law Office of Ellen H. Ehrenpreis, Tampa, for Defendant.

ORDER ON COMPETING MOTIONSFOR SUMMARY JUDGMENT

THIS CAUSE came before this Court on October 27, 2016 concerning: (1) “Plaintiff’s Motion for Final Summary Judgment, or Partial Summary Judgment, Concerning Nurse Practitioner Payment Guidelines” dated August 23, 2016, and (2) “Defendant’s Motion for Final Summary Judgment, or Partial Summary Judgment, Concerning Nurse Practitioner Allowed Amounts” dated October 6, 2016. The Court, having considered the motion, the parties’ memoranda of law, the arguments of counsel, and the record, and being otherwise advised in the premises,

ORDERED AND ADJUDGED as follows:

1. This case involves a dispute concerning the amount of personal injury protection (“PIP”) benefits which must be reimbursed by an insurance company for health care services provided to an insured patient by a nurse practitioner. There is no dispute that the medical services performed by the nurse practitioner were reasonably related to the accident and medically necessary.

2. Instead of calculating reimbursement for the nurse practitioner’s services at 80% of 200% of “the allowable amount under . . . [t]he participating physicians fee schedule of Medicare Part B” as stated in Section 627.736(5)(a)1.f(I), Florida Statutes (2015), the Defendant paid a lower amount based on a Medicare payment guideline, whereby Medicare merely pays 85% of the allowable amount of the participating physicians fee schedule for services rendered by a nurse practitioner. So, in other words, the Defendant paid 85% of 80% of 200% of the participating physicians fee schedule amount for the services rendered by the Plaintiff’s nurse practitioner. At least two published county court decisions cited by the Plaintiff hold that the PIP statute does not authorize this type of reduction. See, First Coast Medical Center, a.a.o. Thuni Nguyen v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 395a (Fla. Duval County Ct. Feb. 1, 2011); First Coast Medical Center, Inc., a.a.o. David Horne v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 653b (Fla. Duval County Ct. Feb. 8, 2012).

3. The Defendant acknowledges that it applied this Medicare payment guideline, but contends that Medicare’s allowed amount for services performed by a nurse practitioner and other advanced practice nurses is “85% of the amount a physician is paid under the Medicare Physician Fee Schedule.” See, Defendant’s Motion at p. 5. According to the Defendant, this 15% reduction is authorized by Section 627.736(5)(a)1.f(I) because that is the “allowable amount” under the participating physicians fee schedule of Medicare Part B. Id.

4. In support of this argument, the Defendant filed a copy of a U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services publication entitled, “Medicare Information for Advanced Practice Registered Nurses, Anesthesiologist Assistants, and Physicians Assistants” (dated February 2015). The first page of that publication states, “Please note: The information in this publication applies only to the Medicare Fee-For-Service Program (also known as Original Medicare).” Therefore, it is clear that this publication was not drafted for purposes of construing the Florida PIP statute. In any event, page 4 of that publication describes the following “Payment Guidelines for NPs” (i.e., nurse practitioners):

· The following payment guidelines apply:- Payment is made only on assignment basis;[Footnote]

– Services are paid at 85% of the amount a physician is paid under the Medicare Physician Fee Schedule (PFS);

– Payment is made directly to the NP for assistant-at-surgery services at 85% of 16% of the amount a physician is paid under the Medicare PFS for assistant-at-surgery services;

– Payment for services furnished incident to the services of a NP in a setting outside of a hospital is made to the NP at 85% of the amount a physician is paid under the Medicare PFS; and

– When you bill directly for services furnished to hospital inpatients and outpatients, payment is unbundled and paid to the NP.

[Footnote] Assignment means that the provider or supplier:

· Will be paid the Medicare-allowed amount as payment in full for his or her services; and

· May not bill or collect from the patient any amount other than unmet copayments, deductibles, and/or coinsurance.

“Medicare Information for Advanced Practice Registered Nurses, Anesthesiologist Assistants, and Physicians Assistants” (dated February 2015) at p. 4.

5. The issues presented are governed by the following provisions of Section 627.736, Florida Statutes (2015):

(5) . . . (a) . . . 1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.

b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.

c. For emergency services and care as defined by s. 395.002 provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.

d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.

e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.

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).

. . .

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 service 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 to services, supplies, or care rendered during that service 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. For purposes of this subparagraph, the term “service year” means the period from March 1 through the end of February of the following year.

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 [(5)(a)]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.

(Emph. added).

6. In this case, the services rendered by the Plaintiff’s nurse practitioner fall under the “all other medical services” category of Section 627.736(5)(a)1.f(I) (emph. added). Therefore, assuming arguendo that the Defendant properly elected the Medicare fee schedule method¹ (an issue which this Court does not decide at this juncture), it is undisputed that the Defendant was required to pay “80 percent of . . . 200 percent of the allowable amount under . . . [t]he participating physicians fee schedule of Medicare Part B” under Section 627.736(5)(a)1. f(I).

7. According to the Defendant, when the services are provided by a nurse practitioner, that “allowable amount” is actually “85% of the amount a physician is paid under the Medicare Physician Fee Schedule.” This Court disagrees. Florida case law clearly holds that when the PIP statute refers to “the allowable amount under . . . [t]he participating physicians fee schedule of Medicare Part B,” that refers to the amount indicated by the participating physicians fee schedule. See, Advanced Diagnostic Testing, Inc. v. Allstate Ins. Co., 2003 WL 23868672 (Fla. 11th Cir. Ct. Oct. 21, 2003), affirmed, 888 So.2d 663 (Fla. 3d DCA 2004); AFO Imaging, Inc. v. Peak Property & Cas. Ins. Corp., 17 Fla. Law Weekly Supp. 368a (Fla. 13th Jud. Cir. Ct. Jan. 25, 2010), affirmed, 71 So.3d 134 (Fla. 2d DCA 2011).

8. In Advanced Diagnostic, the Court considered the 2003 version of the PIP statute which stated in subsection (5)(b)5 that charges for MRI services “shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001. . . .” The plaintiff contended that it was entitled to recover a higher payment based on Medicare’s “limiting charge” which Medicare sometimes applies to “non-participating physicians,” instead of paying the plaintiff based on the participating physician fee schedule rate. The court held, “the phrase ‘the allowable amount’ can only mean that the participating rate would apply to this Plaintiff.” Id., 2003 WL 23868672, at *9. On appeal, the Third DCA affirmed and held, “the term ‘the allowable amount under Medicare Part B,’ . . . refers to the ‘participating physician fee schedule of Medicare Part B'[.]” Advanced Diagnostics Testing v. Allstate Ins. Co., 888 So. 2d 663, 664 (Fla. 3d DCA 2004).

9. In AFO Imaging, the Honorable James Barton, II considered the meaning of the phrase “the allowable amount under the participating physicians schedule of Medicare Part B” used in the 2008 version of Section 627.736(5)(a)2.f, which was renumbered as subsection (5)(a)1.f in 2012. The defendant insurance companies contended that the “allowable amount” provision allowed them to pay less than the participating physicians fee schedule amount based on Medicare’s OPD fee schedule, also known as “OPPS.” Judge Barton disagreed and held that “the ‘allowed amount’ under the participating physicians schedule . . . is the ‘full fee schedule amount,’ rather than an amount that is subject to any limitations, restrictions or caps.” Id., 17 Fla. Law Weekly Supp. 368a at ¶36. On appeal, the Second DCA affirmed Judge Barton’s decision and explained:

. . . [The insurance companies] argue that the statutory phrase “the allowable amount,” which immediately preceded the phrase “participating physicians schedule of Medicare Part B,” should be interpreted to mean the amount that actually would have been allowed under the Medicare program.

We reject their argument. [Former] Subsections (5)(a)(2)(f) and (5)(a)(3) [now (5)(a)l.f and (5)(a)3] unambiguously refer to the participating physicians schedule of Medicare Part B as the schedule upon which to rely. The OPD fee schedule amount payable by Medicare under OPPS is a distinct and separate component of Medicare Part B. . . . The inclusion of the phrase “the allowable amount” in [former] subsections (5)(a)(2)(f) and (5)(a)(3) [now (5)(a)l.f and (5)(a)3] does not alter the plain meaning of these subsections when that phrase is read in context with the remainder of these PIP provisions. This court would have to ignore the phrase “under the participating physicians schedule,” in order to read these subsections in the manner suggested by the Insurance Companies.

Nationwide Mut. Ins. Co. v. AFO Imaging, Inc., 71 So.3d 134, 137-138 (Fla. 2d DCA 2011) (emph. added). The same rationale applies here.

10. The Plaintiff acknowledges that Section 627.736(5)(a)3 was amended in 2012, to insert a new third sentence. The amendment was as follows:

3.4

. Subparagraph 1. 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 1.2

, must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider is 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. 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.

Ch. 2012-197, §10, Laws of Fla. (2012) (strike-through and underline in original). In summary, the 2012 amendment to subsection (5)(a)3 added a new third sentence, but left the first and second sentences unchanged in all material respects (except for renumbering the cross-references and a grammatical change). So, it is incontrovertible that the 2012 amendment did not in any way alter or amend the substantive requirements of the first and second sentences of subsection (5)(a)3.

11. By its plain and unambiguous language, the second sentence of subsection (5)(a)3 clearly prohibits an insurer from reimbursing PIP benefits based on Medicare “restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.” Indeed, according to the second sentence of subsection (5)(a)3, the PIP insurer must reimburse such a provider “regardless” of such Medicare “restrictions or limitations.” The courts have explained what that means. See, AFO Imaging, 17 Fla. L. Weekly Supp. 368a at ¶22 (Judge Barton held that former (5)(a)4, now (5)(a)3, “addresses situations when Medicare merely imposes ‘restrictions or limitations’ on reimbursement” and in that event, “the PIP insurer ‘must reimburse” a health care provider who lawfully provided the services ‘regardless’ of those Medicare restrictions or limitations”); Nationwide, 71 So.3d at 135 (holding that Judge Barton “properly determined that [former] subsections (5)(a)(2)(f), (5)(a)(3), and (5)(a)(4) did not authorize a PIP insurer to utilize any restrictions or limitations application to the Medicare program when determining the amounts due for MRI services provided in a nonemergency, nonhospital setting”).

12. The new third sentence added to subsection (5)(a)3 in 2012 does not abrogate or overrule the Third DCA’s decision in Advanced Diagnostics or the Second DCA’s decision in Nationwide. Accepting the Defendant’s argument would require this Court to ignore the second sentence of Section 627.736(5)(a)3 in conflict with well-settled principles of statutory construction. “Statutory language is not to be assumed superfluous; a statute must be construed so as to give meaning to all words and phrases contained within that statute.” Terrinoni v. Westward Ho!, 418 So.2d 1143, 1146 (Fla. 1st DCA 1982). See also, Atl. Coast Line R. Co. v. Boyd, 102 So. 2d 709, 712 (Fla. 1958) (when construing a statute, the courts “are obligated to give meaning to all words chosen by the legislature”); Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003) [28 Fla. L. Weekly S119a] (“It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage”); Unruh v. State, 669 So.2d 242 (Fla.1996) [21 Fla. L. Weekly S104a] (as a fundamental rule of statutory interpretation, courts should avoid readings that would render part of a statute meaningless); State v. Goode, 830 So.2d 817, 824 (Fla.2002) [27 Fla. L. Weekly S860a] (“the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of a statute meaningless”); Finlayson v. Broward County, 471 So.2d 67, 68 (Fla. 4th DCA 1985)(“when interpreting a statute, courts should avoid interpretations which would render part of the statute meaningless”).

13. Accepting the Defendant’s argument would also require this Court to give no meaning or effect to the entire fee schedule method provisions of Section 627.736(5)(a)1 and 2, Florida Statutes (2015). The nurse practitioner services provided in this case are within the type of “all other” non-hospital, non-emergency services governed by Section 627.736(5)(a)1.f, which required payment of 80% of 200% “of the allowable amount under . . . [t]he participating physicians fee schedule of Medicare Part B.” In Nationwide, the Second DCA held that the fee schedules listed in subsection (5)(a)1.a-f are used to calculate the “minimum amount” of PIP benefits. Id., 71 So.3d at 137. Further, under Section 627.736(5)(a)2, the amount paid under subsections (5)(a)1.a-f “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.” Therefore, Subsection (5)(a)3 does not specifically (and cannot be interpreted to) allow PIP insurers to pay even lower benefits than the “minimum amount” indicated by the fee schedules listed in subsection (5)(a)1.a-f or the 2007 versions of those fee schedules under subsection (5)(a)2. Otherwise, the result would be the total evisceration of subsections (5)(a)1.a-f and (5)(a)2. If subsection (5)(a)3 is truly intended to allow a PIP insurer to apply any Medicare coding policy or payment methodology, that would mean a PIP insurer can step into the shoes of Medicare, act like Medicare, by-pass subsections (5)(a)1.a-f and (5)(a)2 altogether, and simply pay 80% of 100% (instead of 80% of 200%) of the Medicare Participating Physicians Fee Schedule amount, because that is obviously a Medicare payment methodology; or a PIP insurer could pay 80% of 95% of the Medicare physicians fee schedule amount to non-participating physicians, because that is also a Medicare payment methodology that applies to non-participating physicians. Those results would be directly contrary to subsections (5)(a)1.a-f and (5)(a)2, and would render those subsections completely meaningless. The only way to give meaning and effect to the entire Medicare fee schedule method provisions of subsections (5)(a)1, 2 and 3, is to hold (like the Second DCA has) that subsections (5)(a)1 and 2 establish the “minimum amount” payable under the Medicare fee schedule method, but under subsection (5)(a)3, a PIP insurer is also permitted to rely on Medicare coding policies and payment methodologies, as long as such coding policies and payment methodologies are not “utilization limits” and as long as they do not otherwise result in reimbursement less than the minimum amount otherwise payable under subsections (5)(a)1 and (5)(a)2.

14. Indeed, in this case, the Defendant did not simply pay 80% of 85% of the Participating Physicians Fee Schedule amount, like Medicare would have paid for a nurse practitioner’s services. Instead, the Defendant paid 80% of 85% of 200% of the Participating Physicians Fee Schedule amount. Thus, the Defendants’ own actions confirm that the Defendant does not interpret Section 627.736(5)(a)3 to allow PIP insurers to pay whatever amount that Medicare would have paid, irrespective of Section 627.736(5)(a)1 and 2. The Defendant paid pursuant to a payment scheme of their own construction.

15. It is also well-settled that the PIP statute “should be construed liberally in favor of the insured.” Allstate Fire & Cas. Ins. Co. v. Perez ex rel. Jeffrey Tedder, M.D., P.A., 111 So. 3d 960, 963 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D915a]. See also, State Farm Mut. Auto. Ins. Co. v. Pressley, 28 So. 3d 105, 108 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D150b] (“Generally, the provisions of the Florida No-Fault Act are construed liberally in favor of the insured”). As the insured’s assignee, the Plaintiff stands in the shoes of the insured. See, e.g., Prof’l Consulting Services, Inc. v. Hartford Life & Accident Ins. Co., 849 So. 2d 446, 447 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1661a] (insured’s assignee “stands in her shoes” and “has the same rights and status that she does”); Gables Ins. Recovery, Inc. v. Seminole Cas. Ins. Co., 10 So. 3d 1106, 1108 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b] (same). The Defendant’s argument requires this Court to construe the PIP statute against the insured and his assignee, the Plaintiff.

16. Finally, it should also be noted that the Defendant’s insurance policy in this case does not mention anything about electing Medicare’s payment guidelines for nurse practitioners. So, assuming arguendo that the third sentence of subsection (5)(a)3 is intended to overrule the Third DCA’s decision in Advanced Diagnostics or the Second DCA’s decision in Nationwide, and is intended to supersede the provisions of subsections (5)(a)1 and 2, the Defendant’s policy language itself does not clearly and unambiguously elect this Medicare payment guideline. See, Pan Am Diagnostic Services, Inc., a.a.o. Maxime Jean Louis v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 855a (Fla. Miami-Dade County Ct. Jan. 15, 2016) (State Farm could not rely on Medicare’s MPPR reduction because the insurance policy does not clearly and unambiguously elect it).

17. Based on the foregoing, this Court GRANTS the Plaintiff’s motion for summary judgment and DENIES the Defendant’s motion for summary judgment, and holds with respect to services rendered by a nurse practitioner, the Defendant is not authorized to construct its own payment method altering the allowable amount otherwise payable under the participating physicians fee schedule amount pursuant to Section 627.736(5)(a)1.f(I).

18. The Court reserves jurisdiction to enter a final judgment awarding the applicable amount of damages, and to determine any claims for attorneys’ fees and costs.

__________________

¹See, e.g., Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc.,141 So.3d 147, 156-158 (Fla. 2013) (PIP insurers cannot rely on the Medicare fee schedules unless their policy “clearly and unambiguously” adopts the Medicare fee schedule method).