25 Fla. L. Weekly Supp. 828a
Online Reference: FLWSUPP 2509DINGInsurance — Personal injury protection — Coverage — Medical expenses — Nurse practitioner adjustment is Medicare payment methodology, not utilization limit prohibited by section 627.736(5)(a)3 — Where PIP policy clearly and unambiguously states that insurer may utilize Medicare coding policies and payment methodologies to determine appropriate amount of reimbursement, insurer properly applied nurse practitioner adjustment to reimburse for service that was provided by nurse practitioner rather than physician
CRESPO AND ASSOCIATES, P.A., a/a/o Christina Dingus, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 14-CC-024155, Division H. July 11, 2016. On Motion for reconsideration and/or rehearing September 13, 2017. Daryl M. Manning, Judge. Counsel: Anthony Preito, Prieto, Preito & Goan, P.A., Tampa, for Plaintiff. Randall A. Wainoris, Dutton Law Group, Tampa, for Defendant.
SUMMARY FINAL JUDGMENT FOR DEFENDANT
THIS MATTER came before the Court on April 11, 2016, on rehearing of Defendant, Garrison Property and Casualty Insurance Company’s Motion for Summary Final Judgment Regarding Adjustment for a Nurse Practitioner’s Service filed September 30, 2015. Having considered Defendant’s Motion, the Plaintiff’s response in opposition, the summary judgment evidence, the argument presented, the applicable law, and being otherwise fully advised, the Court finds
1. This is a breach of contract action alleging failure of the Defendant to properly pay Personal Injury Protection (PIP) and/or Medical Payment benefits to the Plaintiff as assignee of Christina Dingus, Defendant’s insured. More specifically, the Plaintiff contends that the adjustments made to the reimbursement amounts due to the services having been rendered by a nurse practitioner are not proper.
2. The parties agree that the Defendant’s policy elected to make payment pursuant to the permissive fee schedule methodology provided in Florida Statutes section 627.736(5)(a)(1), which allows the insurer to limit reimbursement pursuant to a schedule of maximum charges set forth in the statute.
3. The undisputed facts demonstrate that “instead of paying 80 percent of the allowed amount (which is 200 percent of the Medicare Physician Fee Schedule), [Defendant] paid 85 percent of the 80 percent (i.e., reimbursement was a 15% reduction)”1 for dates of service April 18, 2014, April 23, 2014, and June 4, 2014 because the services on those dates were provided by a nurse practitioner rather than a physician — resulting in a $146.28 reimbursement for each date of service.
4. Defendant argues that it permissibly used the adjustment for nurse practitioner services, a Medicare payment methodology, which is allowed under Florida Statutes section 627.736(5)(a)(3), and provided for in Defendant’s insurance policy.
5. Plaintiff argues that the Defendant’s use of the nurse practitioner adjustment is not permitted under Florida Statutes section 627.736(5), and that even if permitted by statute, the Defendant has not properly elected to use the nurse practitioner adjustment.
6. The Court finds that the nurse practitioner adjustment is allowed under Florida Statutes section 627.736(5)(a)(3), which provides that “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 nurse practitioner adjustment — paying at 85% of what a physician is paid — is a Medicare payment methodology.
7. Further, the Court finds that use of the adjustment for a nurse practitioner’s services is not a utilization limit in this case.2 The adjustments made in this matter are not based on limiting the number of treatments or limiting the ability to see a particular type of provider, but rather are making an adjustment from the physician fee schedule when the service is not being performed by a physician.
8. Subsection F of the Insuring Agreement provided in Part B-1 of Defendant’s insurance policy3 provides: “We may utilize 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 Court finds this to be sufficient notice that Defendant elects to use Medicare coding policies and payment methodologies, which includes the nurse practitioner adjustment, as allowed under section 627.736(5)(a)(3).
Based on the foregoing, it is therefore ORDERED and ADJUDGED
1. Defendant’s Motion for Summary Final Judgment Regarding Adjustment for a Nurse Practitioner’s Service is hereby GRANTED.
2. Summary Final Judgment is hereby entered in favor of the Defendant, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY.
3. The Court reserves jurisdiction to determine entitlement to and the amount of attorney’s fees, if any, and costs in this matter.
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1See Affidavit of Holly Holobyn ¶14 (filed under Def’s Notice of Filing the Affidavit of Holly Holobyn (Sept. 30, 2015)).
2This is conceded by the Plaintiff in its Amended Response in Opposition to Defendant’s Motion for Summary Judgment. See Pl.’s Response at p. 10 (June 8, 2016) (stating “[r]egardless, Plaintiff agrees that Nurse Practitioner reductions are not Utilization Limits”). The Court notes the post-hearing filing of the Plaintiff’s Amended Response in Opposition and Defendant’s Motion to Strike Plaintiff’s Response filed June 8, 2016; however, the Plaintiff’s Amended Response was provided to the Court and argued at the April 11, 2016 hearing, but had apparently not been filed with the Clerk. The post-hearing filing clarifies the record.
3See Affidavit of Holly Holobyn Ex. A (page rotated as 12 of 34 of the policy).
__________________ORDER DENYING PLAINTIFF’S MOTION FORRECONSIDERATION AND/OR REHEARING
THIS MATTER came before the Court on August 2, 2017, on Plaintiff’s Motion for Reconsideration and/or Rehearing filed on July 14, 2016. The Court has reviewed and considered Plaintiff’s Motion, Defendant’s Response and Memorandum of Law in Opposition filed July 21, 2016, supplemental authority, arguments presented by counsel, and the applicable law. The Court stands by its findings outlined in its July 11, 2016 Summary Final Judgment for Defendant relative to Florida Statutes section 627.736(5)(a)3. Subsection (5)(a)3, taken as whole and giving effect to each sentence, permits an insurer to use the nurse practitioner reduction as a Medicare payment methodology and Defendant’s insurance policy provided sufficient notice of the election to use Medicare coding policies and payment methodologies.
It is therefore ORDERED and ADJUDGED that Plaintiff’s Motion for Reconsideration and/or Rehearing is hereby DENIED.
