25 Fla. L. Weekly Supp. 122b
Online Reference: FLWSUPP 2501NESMInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — Insurer that incorporated Medicare fee schedule into PIP policy and specifically referenced Multiple Procedure Payment Reduction may use MPPR to calculate reimbursement — MPPR is payment methodology, not utilization limit
PATH MEDICAL-BROWARD a/a/o Michelle Nesmith, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE 15-014761(83). January 31, 2017. Ellen Feld, Judge. Counsel: Joseph Wolf, Landau & Associates, P.A., for Plaintiff. Brian S. Goldstein and Patrick J. Gerace, Progressive PIP House, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT
THIS CAUSE having come before the Court on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment and the Court having reviewed the file, record, case law, arguments of counsel and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
Defendant’s insured, Michelle Nesmith, was involved in a motor vehicle accident on 12/20/13 and treated with Plaintiff. Plaintiff filed a Complaint for Breach of Contract alleging Defendant failed to pay amounts owed. Plaintiff filed a Motion for Partial Summary Judgment as to Whether Defendant Improperly Limited Reimbursement of Plaintiff’s Medical Bills. Defendant filed a Motion for Summary Judgment on the issue of whether or not Defendant properly calculated reimbursement of its charges at issue at 80% of the billed amount, rather than limiting reimbursement to 80% of the schedule of maximum charges after applying the Multiple Procedure Payment Reduction.
ANALYSIS AND CONCLUSIONS OF LAW
Florida Statute §627.736(5)(a)(3)(2012) permits insurers to reimburse claims consistent with Medicare payment methodologies.
“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).
In the case at bar the Defendant placed all interested parties on actual notice of its intention to utilize the fee schedules and payment methodologies as set forth in its policy and the PIP statute. The Defendant approved Plaintiff’s medical services based upon the Fee Schedules and the payment methodologies set forth in Fla. Stat.§627.736(5)(a)1.-5. and their insurance policy. Specifically, the Defendant placed the insured on notice that they would be approving the amount of their bill based upon 200% of the Fee Schedules. The approved amount reflects a reduction of the practice expense component for selected therapy services rendered in an office setting or non-institutional setting, pursuant to the Multiple Procedure Payment Reduction (“MPPR”) Rule, which is a payment methodology under the Medicare Part B Fee Schedule.
The Court finds that Defendant’s policy clearly and unambiguously provided more than adequate notice to the Plaintiff not only of what fee schedule they were utilizing but also what methodology, thereby permitting the Defendant to rely on MPPR when calculating PIP reimbursement. See, Path Medical-Broward v. Progressive Select Insurance Company, Case No. CONO 15-005121, (Fla 17th Jud. Cir. Cty. Ct. 2016). The Defendants issued its A085FL9(05/12) Endorsement, which specifically incorporates the statutory payment methodologies provided for in Fla. Stat.§627.736(5)(a)(1)(2013) and §627.736(5)(a)(3)(2013). The above endorsement states the following:
Personal Injury Protection Coverage Endorsement
1. Effective January 1, 2013, the “Unreasonable or Unnecessary Medical Benefits” provision in Part II(A), and in any endorsement to Part 11(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 that, 80 percent of the following schedule of Medicare Part B. . .
f. for all other medical service, 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 service, supplies or care is rendered and for the area in which such service, supplies or cared is rendered. This applicable fee schedule or payment limitation applies throughout the remainder of the 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 (MSSR).”(Emphasis added).
Under the current PIP statute the Defendant may limit payment pursuant to the schedule of charges if the policy includes a notice at the time of issuance or renewal. See Fla. Stat. §627.736(5)(a)(5). Defendant’s policy does not contain any ambiguity as it clearly states what fee schedules they will rely on and specifically references MPPR. Allstate Insurance Company v Orthopedic Specialists, etc., 42 Fla. L. Weekly S39a (Fla. 2017).
The charges at issue were properly allowed and paid to the Plaintiff. Based on the record in the case at bar the Court finds that MPPR is a permissive payment methodology and not a utilization limit. Coral Springs Physicians Associate, Inc. v. Progressive American Insurance Company, Case No. COCE 15-002440, (Fla 17th Jud. Cir. Cty. Ct. 2016) [24 Fla. L. Weekly Supp 766b], Path Medical-Broward v. Progressive Select Insurance Company, Case No. CONO 15-005121, (Fla. 17th Jud. Cir. Cty. 2016) [24 Fla. L. Weekly Supp. 894a]. Coral Springs Physicians Associate, Inc. v. Progressive American Insurance Company, Case No. COCE 15-00246, (Fla. 17th Jud Cir. Cty. Ct. 2016)
For these reasons, it is ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby GRANTED and Plaintiff’s Motion for Partial Summary Judgment is hereby DENIED. The Plaintiff shall take nothing by this action. The Court reserves jurisdiction to determine entitlement to reasonable fees and costs.
