25 Fla. L. Weekly Supp. 751b
Online Reference: FLWSUPP 2508BOESInsurance — Personal injury protection — Coverage — Medical expenses — Physician assistant reduction is Medicare payment limitation, 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 physician assistant reduction to reimburse for service that was provided by assistant rather than physician
GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 2014-12764 SP 25. August 18, 2016. Gina Beovides, Judge.
ORDER DENYING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on July 8, 2016 concerning PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT and the Court having considered the motion, heard argument of counsel, the record and being otherwise advised in the Premises, the Court enters the following Order:
The subject action involves a claim for personal injury protection insurance benefits filed by the Plaintiff, GOLDEN HEALTH SOLUTIONS, INC. (hereinafter “Plaintiff”) as assignee of Jean Boesch (hereinafter “Claimant”), against the Defendant, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), arising out of a motor-vehicle accident that allegedly occurred on March 18, 2014. Specifically at issue in this case is CPT Code 99203 on date of service of March 24, 2014 in the amount of $350.00, CPT Code 99213 on date of service of April 11, 2014 and June 9, 2014 in the amount of $250.00 each. Based on the bill and records submitted by Plaintiff, said service was performed by Francisco Cortes, a physician assistant. Plaintiff billed a total of $850.00 for said services.
The Defendant reviewed bills received and approved $200.94 and issued payment for 80% ($160.74) for CPT Code 99203, and $133.96 and issued payment for 80% ($107.17) for each CPT code 99213. The reductions were made pursuant to Medicare coding policies. The medical records showed that although the Plaintiff billed at the physician rate for these CPT Codes, it was actually a physician assistant who performed the billed service. The Defendant did not allow a physician fee for a service provided by a physician assistant and accordingly, made an adjustment so that it paid 85 percent of what a physician is paid under the Medicare Physician Fee Schedule.
Plaintiff seeks summary judgment and argues that the appropriate reimbursement total should have been $551.60 which represents 200% of the Medicare Part B physician fee schedule for the year in which services were rendered. Plaintiff contends that Defendant’s policy does not properly elect the use of the Medicare coding policies to reduce the rate for services performed by a physician assistant.
At the time of the aforementioned accident, the Claimant was covered with a contract of insurance issued by the Defendant that provided PIP benefits in accordance with the Florida Motor Vehicle No-Fault Law. Under the Policy, the Defendant agreed to pay for “reasonable fees”. In accordance with Fla. Stat. §627.736(5)(a), the policy states:
K. “Reasonable fee” is no more than 80 percent of the following schedule of maximum charges:
…
6. For all other medical services, supplies and care, two hundred (200) percent of the allowable amount under:
a. Medicare Part B, except as provided in 6.b. and 6.c. below;
…
For purposes of this definition (K.), 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 are rendered and the applicable fee schedule or payment limitation applies through 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 applicable schedule of Medicare Part B for 2007 for medical services, supplies and care subject to Medicare Part B.
Insuring Agreement
F. 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.
EXCLUSIONS
B. We will not pay benefits under PIP Coverage for services, supplies or care that is not reimbursable under Medicare or Florida workers’ compensation law.
Additionally, §627.736(5)(a), Fla. Stat. (2012), states as follows:
(5)(a) Charges for treatment of injured persons. —
A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by a personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. However, such a charge may not exceed the amount the person or institution customarily charges for like services or supplies. In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedule applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.
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).
Further, Florida Statutes §627.736(5)(a)(3) provides:
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 form 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 Medicare coding policies and payment methodologies determined that a physician is paid the lower of the actual charge or the fee schedule amount, which is “80 percent of the allowed charge after the deductible is met.” See Medicare Claims Processing Manual, (Pub. 100-04) Ch. 12, §20. Physician Assistants and Nurse Practitioners “are paid at 80% of the lesser of the actual charge or 85 percent of what a physician is paid under the Medicare Physician Fee Schedule.” Id. at §110.
For purposes of this Motion, the Plaintiff stipulates that the Defendant has properly elected use of the permissive fee schedule provided in Florida Statute §627.736(5)(a)1. The court further finds that the physician assistant reduction is a Medicare payment limitation and not a utilization limit.
Plaintiff argues that Defendant is prohibited from making this payment limitation because Defendant’s policy is ambiguous. While the court agrees that Medicare coding polices are not referenced within the definition of “Reasonable Fee” in Defendant’s policy, said language is clearly found in Section F of the policy’s Insuring Agreement. The fact that the language is not incorporated in the Definition portion of the policy, does not render the policy in and of itself ambiguous.
Plaintiff further argues that the language in Section F of Defendant’s policy is ambiguous under Geico Indemnity Co. v. Virtual Imaging Serv., 79 So.3d 55.58(Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]. In the Virtual case the court found that “a policy indicating that an insurer may distribute reimbursements according to one method without clarifying alternative methods or identifying the factors to be considered in selecting among methods is ambiguous.” Id. at 58. This court, however, finds that the analysis in Virtual does not apply to the matter at hand. In the Virtual case, “Geico was faced with at least two ways of reimbursing reasonable medical expenses: (a) reimbursing Virtual Imaging for 80% of the amount billed, or (b) reimbursing them for 80% of 200% of the amount listed on the Medicare fee schedule. When two distinct payment amounts are possible under the statute, it is misleading to insist that there is only one calculation methodology being used.” Id. at 58. In this matter there is no such conflict and/or ambiguity. There are no conflicting statements in the policy or various options to choose from. Defendant’s policy is clear and specifically states that payment limitations are those applied by Medicare.
Florida Statute §627.736(5)(a)(3) permits the use of the physician assistant reduction as a Medicare payment methodology. Although subsection (5)(a)(3) prevents an insurer from refusing to reimburse providers for services lawfully rendered under their license, it goes on further to allow an insurer to use Medicare coding policies and payment methodologies in determining the appropriate amount of that reimbursement. Florida’s Florida Motor Vehicle No-Fault Law was amended in 2012 and pursuant to the legislative intent, that language was added to the statute. A court is without power to diverge from the intent of the legislature where the wording of the statute is clear and unambiguous. GEICO v. Virtual Imagining Servs., Inc., 141 So. 3d 147 (Fla. 2013) [36 Fla. L. Weekly S517a].The legislature did not narrow or limit the Medicare coding policies or payment methodologies which could be relied on in the statute. Rather, the legislature explicitly stated an insurer could rely on the coding policies and payment methodologies in plurality.
In this case, the Defendant has not refused to reimburse for the service provided by the physician assistant, but rather permissibly used Medicare methodology to determine the appropriate amount of the reimbursement when the service is provided by a physician assistant and not a physician. Nothing about said language is ambiguous or conflicting. The adjustment is merely to reflect that pursuant to the Medicare fee schedule, physicians are to be paid more for their services than nurse practitioners. GEICO v. Virtual Imagining Servs., Inc., 141 So. 3d 147 (Fla. 2013) [36 Fla. L. Weekly S517a] requires only that the insurer provide notice in their policies of an election to use the fee schedules and Medicare coding policies. Accordingly, the court finds the language of Defendant’s policy to be sufficient notice that the Defendant elected the use of Medicare coding policies and payment methodologies, which includes the physician’s assistant reduction, in determining reimbursement amounts as permitted under §627.736(5)(a)3.
Based on the foregoing, it is therefore ORDERED AND ADJUDGED Plaintiff’s Motion for Final Summary Judgment is hereby DENIED .
