24 Fla. L. Weekly Supp. 163b

Online Reference: FLWSUPP 2402YASSInsurance — Personal injury protection — Coverage — Medical expenses — Insurers were authorized to apply Medicare Multiple Procedure Payment Reduction to medical providers’ bills where PIP statute authorizes use of Medicare coding policies, including MPPR, and insurers have placed insureds on notice that MPPR will be utilized in determining appropriate reimbursement — MPPR is not per se limitation on utilization prohibited by PIP statute

SOCC, P.L., D/B/A SOUTH ORANGE WELLNESS & INJURY CENTER, a/a/o YOUSSEF ASSAL, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 1 5-CC-015856 (M). Consolidated with the following Div. M cases for the purposes set forth in the Court’s October 13, 2015 Order: 15-CC-016491, 15-CC-016733, 15-CC-016495, 15-CC-017630, 15-CC-016527, 15-CC-018024, 15-CC-016529, 15-CC-018113, 15-CC-016536, 15-CC-019107, 15-CC-016537, 15-CC-019320, 15-CC-024758, 15-CC-024633. April 18, 2016. Honorable Herbert Berkowitz, Judge.AMENDEDORDER GRANTING INSURANCE COMPANIES’SMOTION FOR FINAL SUMMARY JUDGMENT REGARDINGMULTIPLE PROCEDURE PAYMENT REDUCTIONS[Original Opinion at 23 Fla. L. Weekly Supp. 857b]

THIS CAUSE came before the Court on December 17, 2015, concerning: (1) the “Plaintiffs’ “Joint Amended Motion for Partial Summary Judgment filed on November 20, 2015, and (2) the Defendants’ “Motion for Summary Judgment and Incorporated Memorandum of Law in the Consolidated Proceedings per the Court’s October 13, 2015 Order,” filed on November 20, 2015. The Court, having considered the motions, the arguments of counsel, and the record, and being otherwise advised in the premises, finds as follows:

1. The above-captioned cases arise out of breach of contract actions filed by Plaintiffs (herein referred to as the “Health Care Providers”) alleging failure by the various Defendants (herein referred to as the “Insurance Companies”) to pay PIP and/or Medical Payments coverage benefits.

2. The above-captioned cases were consolidated for a single Summary Judgment hearing pursuant to this Court’s “Order Granting Plaintiff’s Motion for Case Management Conference and for Consolidated Hearing on Identical Motions For Summary Judgment Pending in Multiple Cases in County Court Division M” dated October 13, 2015, and this Court’s “Order Adding Case Nos. 15-CC-024758 and 15-CC-024633 to the Consolidated Proceedings Pursuant to this Court’s October 13, 2015 Order” dated November 7, 2015.

3. The Health Care Providers alleged that the Insurance Companies failed to make full payment for medical services as required under Florida Statute § 627.736 for the dates of service claimed in the Complaints.

4. For purposes of the legal issues raised by the parties’ competing motions for summary judgment, the parties agree and this Court finds that there are no genuine disputed issues of material fact.

5. The undisputed material facts demonstrate that in each of the consolidated cases: (a) one of the respective Health Care Providers are seeking unpaid PIP benefits for health care and health services rendered to a patient that was insured by one of the Insurance Companies, and (b) the Insurance Companies applied Medicare’s “Multiple Procedure Payment Reduction” (“MPPR”) payment methodology to reimburse the Health Care Providers’ bills.

6. MPPR is used by the federal Medicare program to place limitations on the amount of reimbursement available, when more than one treatment or procedure (“unit”) is provided to the same patient on the same day. See MLN Matters No. MM8206 (April 1, 2013), official publications of the U.S. Department of Health, Center for Medicare & Medicaid Services.

7. The Insurance Companies’ Motion for Summary Judgment contends that they were authorized to apply MPPR to the Health Care Providers’ bills for multiple treatments rendered to a single injured patient on the same date of service. In contrast the Health Care Providers’ motion for Partial Summary Judgment contends that the PIP statute prohibits these Insurance Companies from even applying MPPR to these charges because they constitute utilization limits.

8. The Health Care Providers objected to the Insurance Companies’ use of MPPR payment Methodology in the calculation of reimbursable amounts provided to Health Care Providers because they allege that the Florida PIP Statute specifically prohibits the application of any “utilization limits” including “any limitations based upon the number of treatments,” and that application of MPPR necessarily unlawfully limits treatments and/or procedures.

9. The Insurance Companies allege that Fla. Stat. §627.723(5)(a)(1) and (5)(a)(3), specifically and expressly permit the Insurance Companies to use Medicare coding policies and payment methodologies to determine the appropriate amount of reimbursement for the medical services at issue here and that MPPR is not a limitation on the number of treatments or other utilization limit under Medicare or Workers’ Compensation fee schedules.

10. For the following reasons, this Court finds that MPPR is not a per se limitation on utilization.

11. Florida Statute §627.736(5)(a)(1)(f) and (3) provides the following:

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)

(I) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.

(II) 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.

. . . . . . . . . . . . . . . . . .

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 limitation 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 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.

See Fla. Stat. § 627.736(5)(a)(1)(f) and (3). [Emphasis added].

12. In order to access the reimbursement rates and payment methodologies delineated in Florida Statute Sections § 627.736(5)(a) (1)(f) and (3), Progressive was required to clearly and unambiguously choose and identify its selected payment methodology in its policy. Kingsway Amigo Ins. Co. v. Ocean Health, 86 So. 3d 1113 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013)[38 Fla. L. Weekly S517a].

13. For the purposes of this particular set of Motions, and because the parties have agreed that these motions would be limited to the issue of whether MPPR is statutorily permissible, the Health Care Providers reserve any challenge to the Defendant’s ability to rely on the fee schedule methodology set forth in Fla. Stat. §627.736(5)(a)1-5, Fla. Stat (2013), but have stated their willingness to accept payment based upon the fee schedule method.

14. Progressive amended its policy through endorsement, effective August 22, 2012. The applicable policy endorsement which seeks to limit reimbursement includes the following provision:

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 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]

15. Therefore, for the purpose of these Motions, the Insurance Companies have placed the insureds and therefore, their assignees Health Care Providers, on notice that payment methodologies, and specifically MPPR, will be utilized when determining reasonable reimbursement rates. Because we are here concerned only with the application of MPPR, the Court., therefore does not need to reach the question of whether the Defendant lawfully placed its insureds on notice of its intent to elect the fee schedule method, as required by Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d. 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. That challenge, if any, is for another day.

16. The Florida Legislature substantially amended Florida’s No-Fault Act to allow use of Medicare’s coding policies and payment methodologies when determining a reasonable charge under Florida Statute § 627.736(5)(a)(1). The plain meaning of the statutory language as set forth in § 627.736(5)(a)(1) and (3) permits the Insurance Companies to utilize Medicare coding policies and payment methodologies of the Federal Centers for Medicare and Medicaid Services to calculate reimbursement amounts to a medical provider. MPPR reductions are explicitly included as one of those coding policies and payment methodologies.

17. MPPR is an applicable modifier as referenced in this Statute, and is specifically identified as such in the Insurance Companies’ policies. It no more constitutes a utilization limit than does any other coding policy or payment methodology of the CMMS. It is a statutorily permitted means by which to determine the appropriate amount of reimbursement for such defined treatments. This does not mean, however, that the impact of any such payment methodology must go unchallenged if use of such methodology in fact results in a limitation on the number of treatments or results in other utilization limits.

18. The last phrase of the Florida Statute §627.7336(5)(a)(3), “. . .if the coding policy or payment methodology does not constitute a utilization limit,” provides protection from just such potential abuse. It allows for a health care provider to argue and prove that such a methodology, as applied, actually results in a utilization limit as prohibited in the first sentence of this subparagraph. By including this last phrase in this Statute, the Legislature has recognized the possibility that such restrictions on reimbursement could, under any given set of circumstances, be so onerous as to constitute a limitation on utilization. This provision allows for a check on such a consequence. It would allow a health care provider an opportunity to prove, in fact, that utilization of treatment was being adversely affected by such an implementation of these reimbursement methodologies, and would provide a basis upon which to correct such an outcome.

19. Because the Motions herein are limited to the question of MPPR’s statutory viability, the Health Care Providers have submitted no evidence in the form of affidavits or otherwise to support their contention that MPPR payment methodology, as applied in any of these cases, sub judice, limited the number of treatments available to an insured, relying on the argument that lowering payments for such multiple procedures has a chilling effect on providers and, consequently, must be a limitation on the utilization of services, per se. This remains a question of fact to be determined on a case by case basis.

20. This Court is not persuaded by Health Care Providers’ argument that Medicare’s MPPR payment methodology constitutes a utilization limit simply because it limits reimbursement. By definition, any and every cost containment measure, when applied to reimbursement for health care, results in a reduction of remuneration for a provider’s time and services, and as a result may have some influence on the manner and method of treatment. A determination of a reasonable charge for provider services, however, does not mean, a fortiori, that such limitation on reimbursement deprives a patient of necessary treatment or precludes a health care provider from utilizing necessary and reasonable care. If that were the Legislature’s purpose in its latest iteration of the PIP Statute, then no coding policies or payment methodology would be permissible. The Courts have clearly said that the use of such methodologies are permissible. See Kingsway and Virtual imaging, supra.

Accordingly, it is hereby

ORDERED AND ADJUDGMED that Summary Final Judgment is hereby entered for the Defendants regarding the issues of law contained herein.