26 Fla. L. Weekly Supp. 311b

Online Reference: FLWSUPP 2604BRUCInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that provides that insurer will determine to be unreasonable any charges that exceed the maximum charges set forth in the PIP statute and will limit reimbursement to 80% of schedule of maximum charges provides clear and unambiguous notice of incorporation of permissive statutory fee schedule limitation into policy — Multiple Procedure Payment Reductions is payment methodology that may be relied upon in reimbursing medical provider, not utilization limit — Where provider charged less than 200% of allowable amount under Medicare Part B fee schedule for two CPT codes, insurer properly reimbursed for those codes at 80% of amount billed — Outpatient Prospective Payment Systems — No merit to provider’s claim that insurer did not reimburse its bills in accordance with PIP policy because it did not apply OPPS to bills where provider failed to present any admissible evidence that OPPS would apply to it or to CPT codes billed

AVENTURA WELLNESS AND REHAB CENTER a/a/o Beatriz Bruce, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2016-010927 SP 23 (01), Civil Division. March 14, 2018. Myriam Lehr, Judge. Counsel: Travis Greene, Anidjar & Levine P.A., Fort Lauderdale, and Howard Myones, Moynes, Esq. Legal PLLC, Fort Lauderdale, for Plaintiff. Alexandra [Ali] Diaz de Arce and Camille D. Riviere, Progressive PIP House Counsel, Medley, for Defendant.

ORDER GRANTING DEFENDANT’SAMENDED MOTION FOR FINAL SUMMARY JUDGMENTAND ENTRY OF FINAL JUDGMENT FOR DEFENDANT

THIS CAUSE having come before the Court on February 6, 2018, pursuant to Defendant’s Amended Motion for Final Summary Judgment, and the Court having reviewed the file, affidavits, evidence, pleadings and motions; having considered the arguments of Counsel and Memoranda 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

1. Progressive’s insured, Beatriz Bruce, allegedly sustained injuries in an automobile accident on June 30, 2014. At the time of the accident, Ms. Bruce was insured by an automobile insurance policy issued by Progressive on October 19, 2015, with effective dates of coverage from May 9, 2015 through November 9, 2015. The policy contract that governs this case is Form 9611A FL (07/13).

2. On July 5, 2016, Plaintiff filed a Complaint for Declaratory Relief and Breach of Contract against Defendant alleging that Defendant failed to pay all amounts owed (specifically demanding $14.66), and seeking a judicial determination as to whether Progressive’s policy provides clear and unambiguous notice to its insured that Progressive will pay Personal Injury Protection (PIP) benefits in accordance with the payment methodologies permitted in Fla. Stat. §627.736(5)(a)1, Fla. Stat. §627.736(5)(a)2, and Fla. Stat. §627.736(5)(a)3.

CONCLUSIONS OF LAW

The issues involved in the underlying hearing/motion are: 1) Whether Defendant Progressive’s policy of insurance properly incorporates the Medicare Part B Participating Physician Fee Schedule via clear and unambiguous policy language, thus 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); 3) Whether the Defendant properly paid Plaintiff’s charges which were less than the amount allowed under Fla. Stat. §627.736(5)(a)1, and; 4) Whether the Defendant should have applied Hospital Outpatient Prospective Payment Systems (OPPS). Each issue will be addressed below in turn.

A. Progressive’s Incorporation of the Fee Schedule Limitation

Plaintiff argues that Progressive’s policy is ambiguous. Plaintiff alleges that this language creates an impermissible hybrid. Plaintiff’s argument rested upon the following language, contained in Progressive’s 9611A policy, defining “medical benefits” as follows:

80 percent of all reasonable expenses incurred for medically necessary medical, surgical, xray, dental and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital and nursing services. Medical benefits only include: 1) services and care received within the initial 14 days after the motor vehicle accident, or 2) follow up services and care received beyond the initial 14 days after the motor vehicle accident if services and care has been previously received within the initial 14 days after the motor vehicle accident, and a referral for more services and care have been provided by a statutorily authorized provider, and the follow up services and care are consistent with the underlying medical diagnosis. Medical benefits do not include massage, as defined in FL. St. 480.033, or acupuncture, as defined in FL. St. 457.102, regardless of the person, entity or licensee providing the massage or acupuncture, and a licensed massage therapist or licensed acupuncturist will not be reimbursed for medical benefits.

Progressive’s 9611A policy also specifically 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 9611A policy 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.

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. At the hearing, Defendant presented the Allstate policy similar to that of Defendant’s, which contained the following language corresponding to the language from Defendant’s policy set forth above:

1. Medical Expenses

Eighty percent of all reasonable expenses for medical necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services

An endorsement to the policy provides:

Limits of Liability

. . .

Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules.

Allstate’s policy also specifically states the following:

Unreasonable or Unnecessary Medical Expenses

If an injured person incurs medical expenses which we deem to be unreasonable or unnecessary, we may refuse to pay for those medical expenses and contest them.

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, No. SC15-2298 (Florida Supreme Court, Jan. 26, 2017) [42 Fla. L. Weekly S38a], and therefore Defendant has properly incorporated the fee schedule limitation in the underlying policy of insurance as a way of meeting the reasonable expense mandate required by Fla. Stat. §627.736.

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 now 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.

Defendant further asserted that 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. Further, Defendant presented this Honorable Court with Federal regulatory history documents indicating the same, including Federal Register Vol. 75, No. 228, November 29, 2010; and Department of Health and Human Services, [CMS-1590-FC; pages 157-158]. These documents demonstrate that MPPR was (1) implemented to appropriately value codes (i.e., account for costs efficiencies) and (2) is consistent with the Federal Government’s longstanding policy (as demonstrated by its application of MPPR and other payment methodologies, including the Multiple Surgery Reduction Rule (MSRR)) of appropriately pricing fee schedule codes and revisiting said codes occasionally pursuant to its obligations under Section 1848(c)(2)k of the Social Security Act.

Plaintiff argued that MPPR is a utilization limit because it limits reimbursement based on the number of services rendered to the same patient on the same day. The Plaintiff relies on an excerpt from the Federal Register to further it’s position. This Court is not persuaded by Plaintiff’s 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 payment for a provider’s time and services, and as a result may have some influence on the manner and method of treatment. This does not mean 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 version 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 Geico v. Virtual Imaging, 141 So. 3d 147, 155 (Fla. 2013) [38 Fla. L. Weekly S517a]. The Multiple Procedure Payment Reduction only affects payment not services or treatment. Each and every CPT Code billed by Plaintiff in this case was reimbursed. This Court agrees with Defendant’s position that Section 1848(c)(2)(k) of the Social Security Act is an extension of the fee schedule. This section was developed to identify mis-valued codes under the fee schedule which led to the implementation of MPPR.

The Court is also persuaded by the decisions in SOCC, PL, a/a/o Youssef Assal v. Progressive American Ins. Co., No. 15-CC-015856 (Fla. 13th Cir. Ct. Apr. 18, 2016) [24 Fla. L. Weekly Supp. 163b] (Medical provider’s argument that MPPR is a utilization limit simply because it limits reimbursement would mean that any cost containment measure would result in a reduction of remuneration for the medical provider and as a result would have an influence on the manner and method of treatment.); Path Medical-Broward a/a/o Shanti Bryant v. Progressive Select Ins. Co., No. CONO15005212 (Fla. 17th Cir. Ct. Jun. 15, 2016) [24 Fla. L. Weekly Supp. 894a] (MPPR is a payment methodology and not a utilization limit); Multicare Rehabilitation, LLC a/a/o Robert Rego v. Progressive Select Ins. Co., No. COCE14022054 (Fla. 17th Cir. Ct. Jan. 14, 2016) [24 Fla. L. Weekly Supp. 171a] (MPPR is a payment methodology and not a utilization limit, otherwise, the language added by the legislature would be meaningless); AFO Imaging, Inc. a/a/ Asha Brown v. State Farm Mutual Auto. Ins. Co., No. 14-0888 (Fla. 13th Cir. Ct. Mar. 15, 2016) [24 Fla. L. Weekly Supp. 165b] (“MPPR does not limit the use or duration of services and does not prevent the insured from accessing any procedure. Rather it simply reduces payment based on the effencies achieved from furnishing multiple procedures in a single session on a single day.”); and Millennium Radiology, LLC a/a/o Angela Renteria v. State Farm Fire & Cas. Ins. Co., FLWSUPP2304RENT (Fla. 11th Cir. Ct. Aug. 11, 2015) [23 Fla. L. Weekly Supp. 360a](MPPR was a payment methodology).

Based on the record in this case, including the evidence presented, legal memoranda, and argument presented by both parties, the Court finds that MPPR is a payment methodology and not a utilization limit. Therefore, this Court finds that Fla. Stat. §627.736 allows Defendant to rely on MPPR in reimbursing Plaintiff in this case.

Additionally, Defendant’s policy of insurance clearly allows Defendant to rely on MPPR. Relevant portions of Defendant’s 9611A policy state:

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, supplies or care is rendered. This applicable fee schedule or payment limitation applies throughout 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 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 (MSRR). (Emphasis added)

Defendant argues that the Fla. Stat. §627.736(5)(a)5 simple notice provision applies only to incorporation of the schedule of maximum charges. Once that notice requirement has been met, Defendant may apply coding and payment methodologies pursuant to Fla. Stat. §627.736(5)(a)3, and Fla. Stat. §627.7311, which incorporates the provisions of the Florida PIP statute into a policy, regardless of express inclusion in the policy language. This court agrees, yet finds that the Defendant has expressly included the same regardless as the Defendant’s policy clearly and unambiguously provided adequate notice to allow Defendant to rely on MPPR when reimbursing medical providers. 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.

C. Payment of Charges Which are Less than the Amount Allowed Under Fla. Stat. §627.736 (5)(a)1

Plaintiff asserts that the Defendant breached the contract when it paid CPT codes 98941 and 99203 at 80% of the amount billed, rather than at 80% of 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B, or 100% of the charge.

Fla. Stat. §627.736(5)(a)5 states in pertinent part, “[i]f a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.”

Plaintiff states that the amount allowed under subparagraph 1 is 80% of 200% of the participating physicians fee schedule of Medicare Part B. In support of its argument, Plaintiff cited to A&M Gerberg Chiropractic, LLC a/a/o Conor Carruthers v. Geico, 2017 WL 4882511 (S.D. Fla. Oct. 30, 2017). However, the Court agrees with the Defendant that the instant case is distinguishable from the Geico case as Geico’s policy language specifically states it will pay the amount of the charge submitted. It is undisputed there is no such language in Progressive’s policy.

“[T]he PIP statute sets forth a basic coverage mandate: every PIP insurer is required to — that is, the insurer ‘shall’ — reimburse eighty percent of all reasonable expenses for medically necessary services.” Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298 (Florida Supreme Court, Jan. 26, 2017) [42 Fla. L. Weekly S38a] (citing to Geico v. Virtual Imaging, 141 So. 3d 147, 155 (Fla. 2013) [38 Fla. L. Weekly S517a]).

The eighty percent mandate has been in the Florida PIP statute since its inception in 1971. See Fla. Stat. §627.736 (1971).

Even when an insurer properly incorporates the schedule of maximum charges, under Fla. Stat. §627.736(5)(a)1, an eighty percent mandate still applies. Similar to (1)(a), (5(a)(1) states that, “[t]he insurer may limit reimbursement to 80 percent of the following schedule of maximum charges. . .” (Emphasis added).

The “schedule of maximum charges” refers to the amounts allowed in subparagraphs a-f of Fla. Stat. §627.736(5)(a)1.

It is “axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. See also State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) [27 Fla. L. Weekly S860a] (“[T]he Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”).

This Court finds that the “amount allowed under subparagraph 1” refers to the schedule of maximum charges, in this case, 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B.

It is undisputed that Plaintiff charged less than 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B for CPT codes 98941 and 99204. Therefore, the Court finds that the Defendant properly paid CPT codes 98941 and 99204 at 80% of the amount billed pursuant to Fla. Stat. §627.736(5)(a)5.

D. Application of Hospital Outpatient Prospective Payment Systems (OPPS)

Plaintiff argues that the Defendant is not paying in accordance with the policy because it should have applied another CMS coding policy, Hospital Outpatient Prospective Payment Systems (OPPS) to Plaintiff’s bills.

However, the Court finds that Plaintiff failed to present to the Court any admissible evidence that OPPS would apply to this Plaintiff provider and/or to the CPT codes billed by the Plaintiff, and thus the Plaintiff failed to demonstrate that the Defendant did not pay Plaintiff in full pursuant to the statute and policy.

IT IS THEREFORE

ORDERED AND ADJUDGED that Defendant’s Amended Motion for Final Summary Judgment against the Plaintiff, is hereby GRANTED, as the pleadings, affidavits, and other materials that would be admissible in evidence on the file show that there is no genuine issue of material fact and that as a matter of law, the Defendant has no liability to the Plaintiff. Plaintiff shall take nothing by this action. FINAL SUMMARY JUDGMENT IS HEREBY ENTERED IN FAVOR OF THE DEFENDANT, Progressive American Insurance Co. . The Court reserves jurisdiction to determine entitlement and amount of attorney’s fees and costs to the Defendant, upon a timely motion.