24 Fla. L. Weekly Supp. 171a
Online Reference: FLWSUPP 2402RREGInsurance — Personal injury protection — Coverage — Medical expenses — Medicare Multiple Procedure Payment Reduction is payment methodology, not utilization limit, and may be relied upon in paying PIP claims — PIP policy endorsement that states that charges will be subject to CMS coding policies and payment methodologies, including MPPR, clearly and unambiguously elects to rely on MPPR when calculating reimbursements — Consistent with section 627.736(5)(a)2, insurer properly paid claim at 2007 fee schedule rate where that rate was higher than 2014 rate that was in effect at time services were rendered
MULTICARE REHABILITATION, LLC A/A/O ROBERT REGO, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. COCE14022054 (50). January 14, 2016. Motion to vacate denied March 10, 2016. Honorable Peter B. Skolnik, Judge. Counsel: Counsel: Howard Myones, Law Offices of Anidjar & Levine, P.A., Fort Lauderdale, for Plaintiff. Erick D. Martin, Kevin P. Sincerbox, Patrick J. Gerace and Neil V. Singh, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDEDMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on January 12, 2016, pursuant to Defendant’s Amended Motion for Final Summary Judgment and Plaintiff’s Response to Defendant’s Motion for Summary Judgment and Cross Motion for Final Summary Judgment, and the Court having reviewed the file, affidavit, pleadings, considered the arguments of Counsel and Memorandum of Law submitted by the parties, and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On April 30, 2014, Robert Rego was involved in a motor vehicle accident in which he allegedly sustained injuries. As a result of those alleged injuries, Robert Rego sought treatment with Plaintiff, Multicare Rehabilitation, LLC for dates of service May 3, 2014 to July 3, 2014. Robert Rego executed an assignment of benefits, assigning to Plaintiff his rights under his policy of insurance with Defendant. At the time of the motor vehicle accident, Robert Rego was covered under an insurance policy with Defendant, which contained endorsement form A085 FL (05/12) (hereinafter “A085 endorsement”).
2. Plaintiff filed a two-count Complaint against Defendant. Count II alleged that Defendant breached its contract with its named insured by paying less than the full amount owed to Plaintiff. Count I was a declaratory action count, which asked the Court to rule upon the following question:
Does the Defendant’s Policy Endorsement Form A085 FL (05/12) clearly and unambiguously notify the Defendant’s insureds of the Defendant’s intention to limit reimbursement using Medicare coding policies and payment methodologies that do not constitute a utilization limit pursuant to Fla. Stat. §627.736(5)(a)(3) & §627.736(5)(a)(5)?
3. There were 3 CPT codes at issue in this case. The breakdown of the codes is shown in the following chart:
| Dates of Service | CPT code | Amount Allowed By Defendant Per code | Amount Sought By Plaintiff Per Code |
| 5/12/14 to 7/3/14 | 97012 | $27.70 | $33.40 |
| 5/3/14 to 7/3/14 | 97035 | $23.18 | $26.82 |
| 5/3/14 to 7/3/14 | G0283 | $22.40 | $29.14 |
4. CPT codes 97012, 97035, and G0283 were identified by Defendant as secondary codes under the Multiple Procedure Payment Reduction methodology (hereinafter “MPPR”). For 2014, 200% of the Medicare Part B Participating Physician’s Fee Schedule Amount including MPPR allowed the following for the subject codes: $26.32 for 97012, $21.60 for CPT code 97035, $21.68 for G0283. Defendant reimbursed Plaintiff at 80% of 200% 2007 Participating Physician’s Fee Schedule of Medicare Part B for CPT codes 97012, 97035, and G0283, as the 2007 rate was higher than 80% of the 200% of the 2014 Fee Schedule rate with MPPR.
5. Each party filed a motion for final summary judgment in this case. It was Plaintiff’s contention in this case that Defendant could not rely upon MPPR in this case as 1) Defendant’s A085 endorsement did not properly elect to use MPPR pursuant to FS §627.736(5)(a)5.; 2) MPPR is a utilization limit and thus its use is barred under FS §627.736(5)(a)3.; and 3) the use of MPPR was barred because in this case it priced the subject codes at an amount less than 2007, even though Defendant paid Plaintiff at the higher 2007 rate. Plaintiff contends that Defendant should have allowed CPT codes 97012, 97035, and G0283 at the 2014 Medicare Part B Participating Fee Schedule Rate, without any application of MPPR. Defendant argues that 1) MPPR was a payment methodology and not a utilization limit; 2) Defendant’s A085 endorsement allowed Defendant to rely on MPPR; and 3) Defendant properly reimbursed Plaintiff at the 2007 Participating Physician Fee Schedule Rate as it allowed more than the 2014 Participating Physician’s Fee Schedule rate with MPPR.
CONCLUSIONS OF LAW
6. In 2012, the Florida Legislature amended FS §627.736. The 2012 changes made a distinct change to previous statute’s reimbursement obligations and entitlements. The following side by side comparison of portions of the old and new version of FS §627.736 shows the distinct changes made by the Legislature:
| FS §627.736 (2008-2011) | FS §627.736 (2012-2014) |
| (5)(a)2. The insurer may limit reimbursement to 80 percent of the 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. . . . | (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. . . |
| (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, except that it may not be less than the allowable amount under the participating physician’s fee 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 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.1 |
| (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 of 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 and 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. |
| (5)(a)5. 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 form 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. |
7. 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 inact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”).
8. The new version of FS §627.736(5)(a)3. includes a distinct change from the old version of the statute, as FS §627.736(5)(a)3. now specifically indicates that payment methodologies under Medicare Part B can be applied by insurers when issuing reimbursement to providers under PIP, provided that the payment methodology is not a utilization limit.
9. Based on the record in this case, including the evidence presented, legal memoranda, and argumentation presented by both parties, the Court finds that MPPR is a payment methodology and not a utilization limit. Therefore, this Court finds that FS §627.736 allows Defendant to rely on MPPR in reimbursing Plaintiff in this case.
10. The question then becomes whether Defendant’s policy of insurance allows Defendant to rely on MPPR.
11. Relevant portions of Defendant’s A085 endorsement state:
Personal Injury Protection Coverage Endorsement
1. Effective January 1, 2013, the “Unreasonable or Unnecessary Medical Benefits” provision in Part II(A), and in any endorsements to Part II(A), is deleted and replaced by the following:
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)(1) (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. . . .
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)
12. The Court finds that Defendant’s A085 endorsement clearly and unambiguously provided adequate notice to allow Defendant to rely on MPPR when reimbursing medical providers.
13. The Court considered the recent ruling in Orthopedic Specialists v. Allstate Ins. Co., 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a], in ruling on whether Defendant’s A085 endorsement provided adequate notice under FS §627.736(5)(a)5. The Court in Orthopedic Specialist reviewed the previous 2008 version of the statute, whereas the instant case involves the newer version of FS §627.736 (2014). Additionally, Allstate’s policy in Orthopedic Specialists bears no resemblance to Defendant’s policy in this case. Furthermore, Defendant argues that the new version of the statute no long requires an election of the fee schedule, but merely requires that insurers provide notice that they will pay at the Medicare Fee Schedule. See FS §627.736(5)(a)5. Defendant argues that its A085 endorsement in the instant case clearly and unambiguously provided notice that Defendant would pay no more than 80% of the Medicare Part B fee schedule, and thus Defendant automatically may apply the MPPR payment methodology. See FS §627.736(5)(a)(1) — FS §627.736(5)(a)(5). Alternatively, Defendant argues that if specific notice of MPPR was required in its policy of insurance, that its A085 endorsement specifically provided notice that Defendant would rely upon MPPR. Alternatively, Defendant argues that if election of MPPR was required, that Defendant’s A085 endorsement clearly unambiguously elected the right to rely upon MPPR. The Court agrees with Defendant’s arguments.
14. Finally, the Court finds that based upon FS 627.736(5)(a)2., Defendant properly paid Plaintiff at the 2007 Participating Physician’s Fee Schedule, as that rate was higher than the 2014 Participating Physician’s Fee Schedule with MPPR.
IT IS THEREFORE
ORDERED AND ADJUDGED that Defendant’s Amended Motion for Final Summary Judgment against the Plaintiff, Multicare Rehabilitation, LLC a/a/o Robert Rego, is GRANTED as to Counts I and II of Plaintiff’s Amended Complaint, as the pleadings, affidavits, and other materials as would be admissible in evidence on the file show that there is no genuine issue of material fact and that as a matter of law, the Defendant has no liability to the Plaintiff. Plaintiff shall take nothing by this action. FINAL SUMMARY JUDGMENT IS HEREBY ENTERED IN FAVOR OF THE DEFENDANT AND IT SHALL GO HENCE FORTH WITHOUT DAY, and the Court reserves jurisdiction to determine entitlement and amount of attorney’s fees and costs to the Defendant, upon a timely motion.
__________________ORDER DENYING PLAINTIFF’SMOTION TO VACATE ORDER GRANTINGDEFENDANT’S AMENDED MOTION FOR FINALSUMMARY JUDGMENT DATED JANUARY 14, 2016,MOTION FOR SANCTIONS FOR EX-PARTE JUDICIALCOMMUNICATIONS AND/OR MOTION FORREHEARING PURSUANT TO RULE 1.530, FLA. R. CIV. P.
THIS CAUSE having come on to be heard on Plaintiff’s Motion to Vacate Order, and the Court having reviewed the motion, and being otherwise advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that said Motion be, and the same is hereby DENIED.
