25 Fla. L. Weekly Supp. 663a

Online Reference: FLWSUPP 2507AMBRInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will determine to be unreasonable any charges that exceed maximum charges set forth in PIP statute and will pay no more than 80% of 200% of allowable amount under Medicare Part B clearly and unambiguously elects single method of calculating PIP benefits — Multiple Procedure Payment Reduction is payment modifier on which insurer is entitled to rely when reimbursing PIP claims, not utilization limit — Deductible — Insurer properly applied fee schedule reductions to medical provider’s bills before applying deductible to resulting amount

COUNTY LINE CHIROPRACTIC MEDICAL & REHAB CENTER INC. a/a/o Sonia Ambrose, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 2015-19152SP23 (06). September 29, 2017. Spencer Multack, Judge. Counsel: Howard Myones and Victor Demesmin, Law Offices of Anidjar & Levine, for Plaintiff. Michael P. Hughes and Camille D. Riviere, Progressive PIP House Council, Miami, for Defendant.

REVERSED; FLWSUPP 2804AMBR

ORDER GRANTING DEFENDANT’SAMENDED MOTION FOR SUMMARY JUDGMENT

THIS CAUSE having come before the Court on August 25, 2017, pursuant to Defendant’s Amended Motion for Summary Judgment, and the Court having reviewed the file, affidavits, pleadings and motions; having considered the arguments of Counsel and Memorandums 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

This case involves the demand of $4.11 of unpaid PIP benefits and a petition for declaratory relief. The parties agree to the facts of the case; Sonia Ambrose was involved in a car accident on June 30, 2014 and thereafter sought treatment at Plaintiff’s place of business. At the time of the accident, Ms. Ambrose was insured by an automobile insurance policy¹ issued by Progressive on May 17, 2014, with effective dates of coverage from May 17, 2014 through November 17, 2014. The Plaintiff billed the Defendant for the services it provided and was reimbursed in the amount of $4,847.80. The Plaintiff believes they were owed $4,851.97, a difference of $4.11. The Defendant calculated its payment pursuant to Fla. Stat. §627.736(5)(a)1, which is a permissive payment methodology calculated at 200% of participating fee schedules, however the Plaintiff takes issue as to certain aspects of the payment calculation.

On February 11, 2016, the Plaintiff filed an Amended Complaint² for Declaratory Relief and Breach of Contract against Defendant alleging that Defendant failed to pay all amounts owed and seeking a judicial determination as to the following two questions:

1) Does the Defendant’s insurance policy clearly and unambiguously notify its insureds of its election of a single method of calculating PIP benefits? and,

2) Does the Defendant’s insurance policy unlawfully elect to rely on MPPR in violation of Section 627.736(5)(a)3?

The Defendant has filed a Motion for Summary Judgment seeking this Court to address these issues.

CONCLUSIONS OF LAW

The issues involved in the underlying motion are: 1) Whether Defendant’s policy of insurance properly incorporates the Medicare Part B Participating Physician Fee Schedule via clear and unambiguous policy language, meeting the simple notice requirements of Fla. Stat. §627.736(5)(a)5; 2) Whether Fla. Stat. §627.736(5)(a)3 and the Defendant’s policy of insurance allow for application of Multiple Procedure Payment Reductions (MPPR), and; 3) Whether the policy deductible was properly applied to “covered” losses only (i.e., the fee schedule amount). Each issue will be addressed below in turn.

A. Progressive’s Incorporation of the Fee Schedule Limitation

Defendant asserts that its policy meets the simple notice requirement as required by Fla. Stat. §627.736(5)(a)5, thus properly incorporating the schedule of maximum charges. Florida law is clear that the courts give effect to the plain meaning of the statutes. State v. Warren, 796 So. 2d 489 (Fla. 2001) [26 Fla. L. Weekly S434b]. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). Additionally, when interpreting an insurance contact, a court must look at the plain and unambiguous language in the policy so as to give effect to the policy as written. Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a]. If a policy is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, then it is deemed to be ambiguous and should be construed against the drafter and in favor of the insured. Geico General Insurance Co. v. Virtual Imaging, 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].

The applicable Florida Motor Vehicle No-Fault Law states as follows:

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. . .

Fla. Stat. 627.736(5)(a)(1)(f)(I)(2013).

Progressive’s A-85 Endorsement states:

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:

. . .

for all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B, except as follows:

(1) for services, supplies and care provided by ambulatory surgical centers and clinical laboratories, 200 percent of the allowable amount under Medicare Part B; and (2) for durable medical equipment, 200 percent of the allowable amount under “The Durable Medical Equipment Prosthetics/Orthotics and Supplies” fee schedule of Medicare Part B.

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 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.

Progressive’s A-85 Endorsement also specifically states:

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 reduce any payment to a medical provider under this Part II(A) by any amounts we deem to be unreasonable medical benefits. However, the medical benefits shall provide reimbursement only for such services, supplies and care that are lawfully rendered, supervised, ordered or prescribed.

This Court agrees with Defendant that its policy of insurance provides clear and unambiguous notice of the incorporation of the fee schedule limitation in accordance with Fla. Stat. §627.736(5)(a)5, and Allstate Ins. Co. v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]. Thus, to answer the Plaintiff’s question: Does the Defendant’s insurance policy clearly and unambiguously notify its insureds of its election of a single method of calculating PIP benefits? This Court answers in the affirmative.

B. Application of Multiple Procedure Payment Reductions (MPPR)

In 2012, the Florida Legislature amended Fla. Stat. §627.736. The 2012 amendments made one change specific to the previous statute’s reimbursement obligations and entitlements. The new version of Fla. Stat. §627.736(5)(a)3 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.

The relevant portion of §627.736(5)(a)3 states:

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.

The relevant portion of the Defendant’s A-85 endorsement states:

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).

The Defendant asserted that the Multiple Procedure Payment Reduction (MPPR), as its name implies, was a payment methodology which does not prohibit services and care in any way, and is intended (1) to appropriately value secondary codes performed in the same office setting on the same day and (2) to account for cost efficiencies realized when this occurs. This conclusion, that MPPR is a payment modifier and not a utilization limit, is consistent with this Court’s prior ruling in the case of Millennium Radiology, LLC a/a/o Angela Renteria v. State Farm Fire and Casualty Co., Case No. 13-20451 SP 23 (Miami-Dade Cty. Ct. July 1, 2015) [23 Fla. L. Weekly Supp. 360a].

Based on the record in this case, the evidence presented, legal memoranda, and argument presented by both parties, the Court finds again that MPPR is a payment methodology and not a utilization limit. The Defendant is therefore entitled to rely on MPPR when reimbursing the Plaintiff’s charges in this case. Thus to answer the Plaintiff’s question: Does the Defendant’s insurance policy unlawfully elect to rely on MPPR in violation of Section 627.736(5)(a)3? This Court answers in the negative.

Additionally, the Court finds that based upon Fla. Stat. §627.736(5)(a)2 and the express language of the underlying insurance policy, Defendant properly paid Plaintiff at the 2007 Participating Physician’s Fee Schedule, as that rate was higher than the Participating Physician’s Fee Schedule with MPPR for the year in which the service occurred.

Application of the Deductible

In this instance, the Defendant applied the $355.28 of the policy’s remaining $1,000 deductible to the insured’s bills after reducing those bills to the fee schedule amount. Defendant asserts that Fla. Stat. §627.739, which requires the deductible to be applied to 100% of the “expenses and losses as described in Fla. Stat. §627.736,” clearly refers to the reasonable expense amount pursuant to Allstate Ins. Co. v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], which clarified that the fee schedule amount is one method of meeting the PIP statute’s reasonable expense mandate. The covered loss amount in this instance is the fee schedule amount, as the underlying policy contains a clear fee schedule limitation in accordance with Fla. Stat. §627.736(5)(a)5.

The Court finds that Defendant properly applied its policy deductible to Plaintiff’s medical bills by first applying the fee schedule reductions as elected by the subject policy of insurance, and then applying the deductible. The deductible only applies to losses covered under the policy of insurance, not simply the total bills submitted. See General Star Indemnity Company v. West Florida Village Inn, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. The insurer should first determine which bills are deemed reasonable, related, and necessary under the policy of insurance, and then apply the deductible. If the insurer has properly elected to pay pursuant to the applicable fee schedules as described in Florida Statute §627.736, the insurer may first apply the fee schedules to the submitted bills, and then apply the deductible. See New Medical Group, Inc. a/a/o Elsa Collazo v. United Auto Ins. Co., “Order Denying Plaintiff’s Motion for Summary Judgment Alleging Defendant Improperly Applied its Policy Deductible”, Case. No. 11-01871 SP 26 (04) (Fla. 11th Cir. Miami-Dade County Court, March 15, 2013) [25 Fla. L. Weekly Supp. 95a].

IT IS THEREFORE

ORDERED AND ADJUDGED that Defendant’s Amended Motion for Summary Judgment against the Plaintiff, is hereby GRANTED as there are no material facts in issue and this Court has ruled on the remaining matters of law. The Defendant is directed to submit a proposed final judgment in the event no triable issue continue to exist in this matter.

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¹ The policy contract that governs this case is Form 9610D FL (10/05), subject to the A-85 FL (05/12) Endorsement.

² The original complaint was filed on November 9, 2015.