24 Fla. L. Weekly Supp. 169a
Online Reference: FLWSUPP 2402ZAPAInsurance — Personal injury protection — Coverage — Medical expenses — Where CPT code for drug administered in non-emergency office setting is not reimbursable under Medicare Part B fee schedule or workers’ compensation fee schedule, CPT code is not reimbursable under PIP statute and PIP policy that limits reimbursement to permissive statutory fee schedule
GERALD T. STASHAK, M.D., P.a. a/a/o NICHOL ZAPATA, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502014SC011184XXXXSB RD. Febuary 4, 2016. Honorable Reginald Corlew, Judge. Counsel: W. Michael A. Skirvin, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Max M. Nelson, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION
FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on January 26, 2016 for hearing on Defendant Progressive’s Motion for Final Summary Judgment arguing payment in full, and the Court having reviewed the file, affidavits, pleadings, relevant legal authorities, considered the arguments of counsel and being otherwise sufficiently advised in the premises, the Court finds as follows:BACKGROUND, PROCEDURAL HISTORY, FACTS
Defendant was served with this one-count PIP breach of contract suit on December 9, 2014. Plaintiff alleged that assignor Nichol Zapata was involved in a motor vehicle accident on July 17, 2013, treated with Plaintiff on dates of service October 13, 2013 and February 12, 2014, and that additional benefits remained due and owing under the insurance policy Progressive issued to Nichol Zapata and Fla. Stat. § 627.736 (2013).
On January 6, 2015, Defendant filed its Answer and Affirmative Defenses alleging: 1) liability is subject to the applicable insurance agreement; 2) liability is subject to the PIP Statute; 3) payment in full under the subject policy and PIP Statute; and 4) tender of payment and accord and satisfaction based on reimbursement pursuant to Fla. Stat. § 627.736(5) and the subject policy.
On February 12, 2015, Defendant filed its Motion for Summary Judgment arguing payment in full under the subject policy and Fla. Stat. § 627.736(5). On March 9, 2015, Defendant filed the Affidavit of Adjuster Grace Torres in support of its Motion. The Torres Affidavit establishes the undisputed facts that Nichol Zapata’s insurance policy was in effect on the alleged date of loss, and that the policy included the A085 FL (05/12) Endorsement. This Endorsement incorporates the statutory payment methodologies delineated in Fla. Stat. § 627.736(5)(a)(1)(2013). The affidavit and attachments demonstrate that Progressive timely paid Plaintiff $587.53 in PIP benefits in response to the initial receipt of Plaintiff’s bills for dates of service October 13, 2013 and February 12, 2014, and an additional $0.07 payment of benefits (plus penalty, postage and interest) in response to Plaintiff’s demand letter, for a total benefits payment of $587.60. The affidavit details that Progressive has satisfied its contractual obligations by issuing payments to Plaintiff in accordance with Fla. Stat. § 627.736(5)(a) and the automobile insurance policy issued to Nichol Zapata, which includes the A085 FL (05/12) Endorsement.
The deposition of Adjuster Grace Torres was taken on November 18, 2015 and filed on December 3, 2015. Torres testified that the CPT Codes submitted by Plaintiff were reimbursed at 200% of the allowable amount under the participating physician’s fee schedule of Medicare Part B, with the exception of CPT Code J2001 (lidocaine injection, 10 mg), two units. This code was billed by Plaintiff on date of service February 12, 2014 and was reimbursed at the Medicare Part B Drug Average Sales Price Fee Schedule. Torres testified that the 2007, 2013 and 2014 Medicare Part B Drug “ASP” Fee Schedules list “0.018” as the reimbursable amount for this drug code. Because Plaintiff billed two units of J2001 and Defendant calculated the 200% rate, Defendant multiplied .018 by four, allowed $0.08 and paid $0.07 for this code, pre-suit.
Plaintiff never filed a response to Defendant’s Motion for Summary Judgment, or communicated to Defendant that any of the specific codes at issue were underpaid. Plaintiff’s Affidavit of Jeffrey Howard, filed on January 22, 2016, provides legal conclusions and does not specifically dispute or disagree with the amounts paid by Defendant for the CPT Codes at issue. The affidavit states that “HCPCS Code J2001 is not covered by the Medicare Physician Fee Schedule, instead, it is covered by the Average Sales Price Drugs Fee Schedule and is reimbursable under Medicare Part B.” The “Average Sales Price Drugs Fee Schedule” is the same fee schedule that Adjuster Grace Torres identified as the one that was used to reimburse CPT Code J2001 billed on date of service February 12, 2014 during her deposition.
Plaintiff was given an opportunity to disagree and explain its disagreement with the processing of this claim by responding to Defendant’s November 18, 2015 Interrogatories, which asked: “Which CPT Code(s), on which dates of service, that are at issue in this suit do you claim were underpaid by Defendant? With respect to each CPT Code that you claim was underpaid, please specify the amount billed, amount paid, and amount that you claim remains to be due and owing” and “With respect to CPT Code J2001, two units, submitted with respect to date of service 2/12/14, please state that amount that you claim is due and owing for this service. Please explain how you arrive at that amount by explaining all sources, fee schedules or other materials that you rely on in support of your claim that you are owed more than what was reimbursed by Defendant pursuant to the fee schedule.” Plaintiff filed blanket objections to these interrogatories the day before the summary judgment hearing. The parties proceeded to the summary judgment hearing on January 26, 2016.CONCLUSIONS OF LAW
As an initial matter, the Court finds that Progressive’s A085 Endorsement properly incorporates the fee schedules stated in Fla. Stat. § 627.736(5)(a). It clearly, unambiguously and specifically adopts the statutory language and informs the insured that reimbursement will be limited to 80% of the schedule of maximum charges enumerated in Fla. Stat. § 627.736(5)(a). GEICO v. Virtual Imaging Services Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So. 3d 63, 64 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Progressive put all interested parties on actual notice of its intention to utilize the fee schedules as set forth in its policy and the Florida No Fault Statute. As applied to this case, Progressive properly and timely reimbursed Plaintiff at 200% of the allowable amount under the participating physician’s fee schedule of Medicare Part B for all CPT Codes billed on dates of service October 13, 2013 and February 12, 2014, the sole dates of service at issue, with one exception. It is undisputed that CPT Code J2001 (lidocaine injection, 10 mg), two units, is not reimbursable under the participating physician’s fee schedule of Medicare Part B.
Defendant’s reimbursement of CPT Code J2001 was made under the 2014 Medicare Part B Drug “ASP” Fee Schedule. Although this fee schedule is not specifically referenced in the insurance policy at issue or the PIP Statute, Defendant reimbursed the Plaintiff at 200% of this Fee Schedule in good faith and to prevent unnecessary litigation. The Medicare Part B Drug “ASP” Fee Schedule, available at cms.gov, is the sole source published by the Centers for Medicare & Medicaid Services that provides any guidance as to how this code should be reimbursed. The issue remains as to whether Defendant had a legal obligation to reimburse this code.
The Court gives effect to the plain meaning of Statutes. It is “axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. See also State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) [27 Fla. L. Weekly S860a] (“[T]he Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”).
A close reading of Fla. Stat. § 627.736(5)(a) is necessary when deciding the issue of whether CPT Code J2001 is reimbursable, as applied to this case. Sections 5(a-e), which govern reimbursement for emergency services, hospital services, etc., do not apply to the reimbursement of J2001, lidocaine injection, 10 mg, billed in a non-emergency office setting. Thus, examination of sub-paragraph (f), and the “However” clause therein is warranted. The parties agree that J2001 is not reimbursable under the “participating physicians fee schedule of Medicare Part B,” that the services were not provided by an ambulatory surgical center or within a clinical laboratory, and that the “Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B” is inapplicable to the reimbursement of this specific code. Fla. Stat. § 627.736(5)(a)(1)(f)(I-III). The “however” clause then clarifies which services are “not required” to be reimbursed by the insurer according to the Statute, and “will not” be reimbursed according to the A085 Endorsement’s language, which tracks and adopts the language of the Statute:
“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.”
627.736(5)(a)(1)(f) (emphasis supplied). Employing the proper methods of statutory construction, and reading this portion in conjunction with the preceding sub-sections, the limiting phrase “as provided in this sub-subparagraph” describes which services, supplies or care “reimbursable under Medicare Part B” are reimbursable according to the PIP Statute. J2001, as applied to this case, is not reimbursable under the “Medicare Part B” sources enumerated within Fla. Stat. § 627.736(5)(a)(1)(f)(I-III) (participating fee schedule, surgical centers and lab services and the durable medical equipment “DME” fee schedule). Thus, since it is not reimbursable under Florida workers’ compensation,1 CPT Code J2001 is not reimbursable under the PIP Statute or the policy at issue.
The affidavit and deposition testimony of Defendant’s adjuster Grace Torres properly supports and establishes that Plaintiff’s claim was paid in full. Plaintiff’s Howard affidavit does not create a genuine issue of material fact as it is conclusory, unsupported by sufficient facts or data, does not discuss the specific facts of this case, and merely concerns issue of law. A coding expert affidavit does not create a genuine issue of material fact when it merely states an opinion as to an ultimate question of law based on “experience and familiarity” with coding issues — a conflict in the facts should not be confused with a conflict as to the proper legal conclusion. It is the province of judges and attorneys to interpret law. State Farm v. RJ Trapana, MD PA, 23 Fla. L. Weekly Supp. 98a (Fla. 17th Jud. Cir. App. 2015) (finding that coding expert affidavits did not create a genuine issue of material fact and should have been “disregarded” where the affidavits were based on undisputed facts and the affiants’ experience and familiarity with coding issues . . . .“because the affidavits of both coding experts addressed the ultimate question of law involved in the summary judgment motions as to the improper billing and unbundling defense, the affidavits should have been disregarded.”) (citing Devin v. Hollywood, 351 So. 2d 1022, 1026 (Fla. 4th DCA 1976) (holding that a trial judge may not rely on expert testimony “to determine the meaning of terms which were questions of law to be decided by the trial court”)).
The Court therefore finds that there is no genuine issue of material fact, and that Defendant is entitled to final summary judgment as a matter of law. Fla. R. Civ. P. 1.510.
Accordingly, and for the reasons stated above, it is hereby:
ORDERED AND ADJUDGED THAT Defendant’s Motion for Final Summary Judgment is hereby GRANTED. Plaintiff’s claim is hereby DISMISSED. The Plaintiff shall take nothing by this action and the Defendant shall go hence without day. Defendant is the prevailing party in this action. Accordingly, the Court RESERVES jurisdiction to determine attorneys’ fees and costs owed to Defendant.
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1The Florida workers’ compensation fee schedule does not list a specific reimbursable amount for CPT Code J2001. It references J2001 as a “BR” code, defined as a “code paid by report.” “Reimbursement shall be determined by the insurer for codes paid by report (BR). Payment shall be based on a provider’s documentation submitted to the insurer in a special report containing information on the complete description of the services or procedures, medical necessity, pertinent clinical data, prevailing charges, fees, relative values and reimbursement for similar procedures or cost of the services or supplies.” Plaintiff did not submit a “special report” sufficient for this code to be reimbursed consistent with the workers’ compensation fee schedule. Plaintiff did not argue, file evidence or establish the code being reimbursable under the workers’ compensation fee schedule, and instead argued that the code is generally reimbursable under “Medicare Part B.” Therefore, CPT Code J2001 is not reimbursable under workers’ compensation.
