24 Fla. L. Weekly Supp. 894a
Online Reference: FLWSUPP 2410BRYAInsurance — Personal injury protection — Coverage — Medical expenses — Multiple Procedure Payment Reduction is payment methodology whose use is allowed by Section 627.736(5)(a)3, not utilization limit prohibited by that statute — Policy that provides that insurer will apply MPPR when determining amount payable under Medicare fee schedule clearly and unambiguously provided notice of insurer’s intent to rely upon MPPR in calculating reimbursement
PATH MEDICAL-BROWARD a/a/o Shanti’ Bryant, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. CONO15005121 (70). June 15, 2016. John D. Fry, Judge. Counsel: Evan Brown, Landau & Associates, for Plaintiff. Kevin P. Sincerbox, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
[Editor’s Note: Rehearing Denied September 2, 2016]
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT ANDDENYING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on May 26, 2016, pursuant to Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment, and the Court having reviewed the record evidence, pleadings, and motions, and having considered argument of Counsel and legal authority 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 August 8, 2014, Shanti Bryant was involved in a motor vehicle accident in which she allegedly sustained injuries. As a result of those alleged injuries, Shanti Bryant sought treatment with Plaintiff, Path Medical-Broward for dates of service August 22, 2014 to August 25, 2014. Shanti Bryant executed an assignment of benefits, assigning to Plaintiff her rights under a policy of insurance with Defendant. At the time of the motor vehicle accident, Shanti Bryant was covered under an insurance policy with Defendant, which contained endorsement form A085 FL (05/12) (hereinafter “A085 endorsement”).
2. Plaintiff filed a Complaint for Breach of Contract against Defendant alleging that Defendant failed to pay all amounts owed.
3. There were 3 CPT codes at issue in this case. The breakdown of the codes is shown in the following chart:
| 2007 Medicare Fee Schedule | 2014 Medicare Fee Schedule with MPPR | 2014 Medicare Fee Schedule | |
| G0283 | $11.20 | $10.84 | $14.57 |
| 97112 | $27.80 | $25.73 | $34.68 |
| 97140 | $25.17 | $23.52 | $30.98 |
4. CPT code 97112 was identified as the primary procedure code under the Multiple Procedure Payment Reduction and was not reduced. CPT codes 97140 and G0283 were identified by Defendant as secondary codes under the Multiple Procedure Payment Reduction methodology (hereinafter “MPPR”). Defendant reimbursed Plaintiff at 80% of 200% of the 2007 Participating Physician’s Fee Schedule of Medicare Part B for CPT codes 97140 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 summary judgment, the Defendant’s being for Final Summary Judgment and the Plaintiff’s for Partial Summary Judgment. Plaintiff contends that Defendant could not rely upon MPPR 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 97140 and G0283 at the 2014 Medicare Part B Participating Fee Schedule Rate, without any application of MPPR. Defendant argues that 1) MPPR is 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 the previous statute’s reimbursement obligations and entitlements. Section 627.736 (5)(a)(3), Florida Statutes (2012) has been amended as follows:
“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).”
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 enact 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 record evidence and materials that would be admissible as evidence, 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 the Progressive policy is clear and concise. There is no ambiguity and the Progressive policy further annunciates what is clear, appearing to go past what is required by law. The policy further states if the payment methodology used goes below the applicable 2007 Medicare Fee Schedule rate Progressive will pay at the applicable 2007 rate. In the next paragraph the policy states that in determining the amount of payment under the applicable Medicare Fee Schedule, it will be subject to MPPR.
13. The Court finds that Defendant’s policy clearly and unambiguously provided adequate notice to allow Defendant to rely on MPPR when reimbursing medical providers.
14. The Court carefully considered the recent ruling in Orthopedic Specialists v. Allstate Ins. Co., 177 So. 3d (Fla. 4th DCA 2016), 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. The Court finds that the Progressive Insurance Policy and 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). The Court finds that if a specific election of MPPR was required, that Defendant’s policy clearly unambiguously elected the right to rely upon MPPR.
15. Finally, the Court finds that 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 Motion for Final Summary Judgment is hereby GRANTED. 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. The Court reserves jurisdiction to determine entitlement to reasonable fees and costs. The Court will also entertain certifying issues of great public importance to the Fourth District Court of Appeal, pending caucus among counsel for the parties.
