26 Fla. L. Weekly Supp. 901a
Online Reference: FLWSUPP 2611LINTInsurance — Personal injury protection — Coverage — Medical expenses — Multiple Procedure Payment Reduction does not apply to chiropractic services that were not performed by physician or non-physician practitioner under written “therapy plan of care” but, rather, by unsupervised chiropractor — Question certified
CARE MEDICAL CENTERS, INC. (a/a/o Ashley J. Linton), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 18004563. November 27, 2018. Robert W. Lee, Judge. Counsel: Jeremy Dover, Law Offices of Anidjar and Levine, P.A., Fort Lauderdale, for Plaintiff. Kevin P. Sincerbox, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARYJUDGMENT, ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY DISPOSITION/ JUDGMENT,andCERTIFICATION TO THE FOURTH DISTRICT COURTOF APPEAL AS A QUESTION AFFECTING THE UNIFORMADMINSTRATION OF JUSTICE, PURSUANT TO FLA. STAT.§34.017(1)(b), RULES 9.030(b)(4) and 9.160, FLA. R. APP. P.1
THIS CAUSE came before the Court on September 25, 2018 for hearing of the Plaintiff’s Motion for Summary Judgment and the Defendant’s Motion for Summary Disposition2/ Judgment, and the Court’s having reviewed the Motions, heard argument, reviewed the relevant legal authorities, and been sufficiently advised in the premises, finds as follows:
This case involves an issue currently arising in hundreds of PIP cases throughout the State. Currently, the County Courts are not uniform in their rulings, and there is no controlling statewide precedent on the horizon. In light of the five-year statute of limitations pertaining to PIP cases, as well as the continuing practice of PIP parties to challenge legal rulings even when a Circuit appellate decision is issued,3 this Court respectfully submits that this is an issue that the District Court of Appeal could resolve and save a substantial amount of judicial labor in the courts below. See State Farm Mutual Automobile Ins. Co. v. CC Chiropractic LLC, 245 So.3d 755, 760 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D583a] (reminding county courts that the certification process is a method to seek precedent needed for the orderly administration of justice on issues that have statewide application).
In this case, this Court aligns itself with the Honorable Jane Fishman and finds, as hereinafter discussed, that the Multiple Procedure Payment Reduction (MPPR) (MPPR) does not apply to chiropractic services not provided under a therapy plan of care. This Court recognizes, however, that there are a substantial number of County Court Judges who disagree.
In this PIP case, the issue in dispute boils down to whether Progressive can use a Medicare payment methodology known generally as “MPPR” — the Multiple Procedure Payment Reduction — to reduce the amounts payable for certain chiropractic treatments rendered in this case. The parties do not dispute that Progressive properly incorporated the Medicare fee schedules into its PIP policy, but rather dispute how Progressive should have calculated the amount payable for three types of chiropractic services designated by certain CPT treatment codes.
All the treatment in this case was provided by a chiropractor. The parties acknowledge that with the exception of a chiropractic adjustment,4 chiropractic treatment in general is not payable through Medicare. The Florida Legislature recognized the apparent anomaly of requiring use of Medicare fee schedules for chiropractic services rendered in PIP cases when Medicare does not generally reimburse for chiropractic care. In such a case, the legislature provided that the insurer would be required to pay for these chiropractic services5 using the Medicare fee schedules generally applicable for that type of service, and if there were no Medicare fee schedule for a particular chiropractic treatment, then it would be paid under the State’s workers compensation fee schedules.6 Under Florida Statutes §627.736(5)(a)1, if a service is payable under the workers compensation fee schedules, that amount is determined by using “the rules adopted thereunder [worker compensation] which are in effect at the time such services [. . . ] are provided.” On the other hand, under subsection 2 of the same statute, if a service is payable under the Medicare fee schedules, the insurer may use any “payment limitation” in effect under Medicare, and under subsection 3, the insurer may use “Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services [. . .] to determine the appropriate amount of reimbursement for medical services [. . .].”
Progressive argues that it properly utilized the Multiple Procedure Payment Reduction (“MPPR”) Methodology — a Medicare methodology — in regards to the chiropractic claim at issue in this case, although the chiropractic treatment itself is not recognized by Medicare as being compensable.
Under the Medicare fee codes, MPPR was created for the purpose of controlling costs arising from duplication of services.7 Medicare recognizes that some components of treatment are covered under more than one treatment code. As a result, it adopted the MPPR methodology to reduce the amount due under one treatment code when a component of that treatment is already billed under another treatment code. As noted by the Centers for Medicare and Medicaid Services (CMS), the
multiple procedure payment reduction (MPPR) is a payment reduction, designed to pay more appropriately when multiple services are furnished to the same patient. Physician services are paid under the Medicare Physician Fee Schedule. When payment for a service is reduced by the MPPR, the reduced payment becomes the reduced payment amount. Likewise, the reduced payment is used for calculation of a beneficiary’s therapy cap. The MPPR is not a utilization limit or intended to limit treatment by Medicare.8
As an example, as noted by defense counsel at the hearing, if one treatment code included a component for a dressing gown for a particular treatment, and the patient is getting another treatment at the same time that also includes a dressing gown component, MPPR might reduce the amount payable under one of the codes to take into consideration the duplication of service.
Medicare has, however, set forth limitations on the use of the MPPR methodology. Providers and insurers alike appear to recognize that the application of MPPR and its related limitations are complicated and not necessarily easy to readily grasp.9 Plaintiff’s position is that MPPR is impermissible as a payment methodology in this claim for two (2) reasons10: MPPR is inapplicable when “always therapy” services are provided in combination with any contractor-priced, bundled, or add-on code; and MPPR is applicable only to services provided by a licensed therapist under a “therapy plan of care” and was never contemplated to be applied to a chiropractor providing lawful services under Fla. Stat. §627.736(5)(a)(3).11 Additionally, the Plaintiff asserted at the hearing that Progressive is the only PIP insurer in Florida routinely attempting to apply the MPPR reductions to chiropractic care, and Progressive did not challenge this assertion. The Court notes, moreover, that of the more than a dozen PIP insurers with hundreds of cases pending in this division of the County Court alone, this issue arises only in those cases involving Progressive, which suggests that other Florida insurers do not view this issue in the same manner as Progressive.
Now, let us turn to the application of the law to the facts of this case.
UNDISPUTED FACTS
1. On May 09, 2017, Ashley J. Linton was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of those injuries, she sought chiropractic treatment with the Plaintiff for dates of service May 19, 2017 through August 31, 2017. The treatment was not supervised by any other physician or non-physician practitioner.
3. The Plaintiff charged $6,370.00 for all the reasonable, related, and medically necessary treatment rendered on the dates of service at issue in this case.
4. Progressive paid the claim, but at a reduced amount.
5. The amount Progressive paid was based upon “200% of the Participating Level of Medicare Part B fee schedule for the region in which the services were rendered.” Also, the amount allowed reflects a reduction of the practice expense component for selected therapy services rendered in an office setting or a non-institutional setting subject to the Medicare Multiple Procedure Payment Reduction (“MPPR”) rule; therefore a MPPR reduction was applied to those codes.
6. As relevant to the Court’s ruling on this Motion, the Defendant claims that the Plaintiff is not authorized to apply MPPR for two (2) reasons. First, MPPR is not applicable for “always therapy” services when provided in combination with Contractor-Priced, Bundled, and/or Add-On HCPCS (CPT) Codes. Second, MPPR is applicable only for services provided by therapists under a written “therapy plan of care” approved by Medicare (which a chiropractor is not authorized to implement), and does not apply to a chiropractor lawfully providing services under the scope of his or her license.
7. Progressive asserts there are three therapy services affected by the MPPR in this case, CPT Codes G0283, 97140, and 97012. The Defendant allowed these 3 CPT therapy codes at 200% of the 2007 Medicare Part B Fee Schedule Amounts, but reduced the amount payable for the three CPT Codes using the MPPR methodology.
ISSUE PRESENTED
The issue presented by these Motions is whether Progressive has properly reimbursed Plaintiff for reasonable, related, and medically necessary care provided to the claimant pursuant to Fla. Stat. § 627.736(5)(a)1 (2016). It is Plaintiff’s position that it did not, claiming that Progressive has improperly utilized the Multiple Procedure Payment Reduction Rule in direct contravention of the guidelines under Medicare and the clear language in both Defendant’s Policy of Insurance and Fla. Stat. §627.736(5)(a)(1-5).ANALYSIS
This Court agrees that the MPPR is a payment methodology under the PIP statute. See Fla. Stat. §627.736(5)(a)3. As a result, Progressive is permitted to ujse the MPPR “payment methodology.” Id. In the Court’s view, that is not the issue. Rather, the question then is, what exactly is the MPPR payment “methodology”? The Defendant would urge that the statute means that you should merely find a dollar amount set forth in the MPPR schedule, without taking into consideration what “methodology” is used to determine whether that dollar amount actually applies. In the Court’s view, the word “methodology” implicates the “procedure” used to determine if the scheduled price is applicable. See American Heritage Dict. of the English Language 826 (New college ed. 1976) (the word “methodology” refers to “procedures applied”). Simply put, in the instant case, the Court finds that the treatment in this case does not trigger application of MPPR because the treatment was not done pursuant to a “therapy plan of care,” but rather by an unsupervised chiropractor. The second paragraph of the FOIA Response filed as Exhibit “B” to Plaintiff’s Motion provides in part, “The MPPR on therapy services applies to separately payable ‘always therapy’ services, i.e., services are paid only by Medicare when furnished under a therapy plan of care” (emphasis added.) The MPPR methodology for therapy services kicks in only if there is a “therapy plan of care.”
Therapy services are payable by Medicare only if there is a written “plan of care” certified by a physician or non-physician practitioner and actually supervised by the physician or non-physician practitioner. Center for Medicare & Medicaid Services, Physical, Occupational, and Speech Therapy Services, at 2, 7 (Sept. 5, 2012) (attached as Exhibit C to Plaintiff’s Motion) [hereinafter CMS Therapy Services). However, as relevant to the treatment in this case, the CMS specifically provides that “[c]hiropractors and [d]entists may not refer patients for therapy services nor certify therapy plans of care.”12 MPPR was created to promote effective, necessary care for patients under a certified therapy plan of care because the purpose of the plan of care is to help establish reasonable and necessary medical rehabilitative treatment for the patient. The Court further notes that the only therapy services payable under Medicare are those that are rehabilitative in nature. CMS Therapy Services, supra, at 27, 30. Importantly, the Florida Legislature placed no such restriction under the Florida PIP law for a jury to determine whether a particular medical service is medically necessary. See Fla. Stat. §627.736(1)(a) (2017) (stating that medical services and rehabilitative services must be covered by PIP insurance policies). In sum, a chiropractor providing services to a patient making a claim under a PIP policy does not have to perform a service for a “rehabilitative” purpose so long as the service itself is medically necessary.
Moreover, it is insufficient for the supervising clinician to merely “supervise” the treatment. Rather, the “clinician [. . .] must apply the skills of a therapist by actively participating in the treatment of the patient.” Id. at 23. Indeed, Medicare requires that the supervising “physician or NPP must be present in the office suite and immediately available.” Id. at 35. Ostensibly, a therapist who has certified a therapy plan to be performed would be billing for services that might include components that would also fall within a service already being performed by the supervising physician or NPP. Indeed, under Medicare, Non-Physician Providers must be supervised by a Physician if they are to bill for the NPP services.13 In this latter case, you would have a therapist being supervised by an NPP, who would in turn have to be supervised by a physician. In such instances, application of an MPPR would make sense to avoid payment for duplication of services.
MPPR was never contemplated nor has Medicare ever intended for it to be utilized for services provided by a chiropractor. MPPR has a very distinct purpose and applies only to a patient receiving therapy services, supervised or performed by a therapist, under a written therapy plan of care. In fact, Medicare would not even reimburse a chiropractor for these services as there is no therapy plan of care, and no therapist is supervising the treatment. While Medicare may not reimburse chiropractors for these services, it is without dispute that the Florida Legislature clearly intended for chiropractors to receive the appropriate reimbursement under the Medicare Part B Fee Schedule when billing this type of treatment. Here it is very clear: the Plaintiff is a chiropractor; there is no oversight by a therapist or therapist performing these services; and there is no is written therapy plan of care, thus the triggering “methodology” for application of MPPR is not present in this case.
Progressive is attempting to argue that even though a chiropractor’s treatment would not be payable under Medicare, the Florida Legislature implicitly provided that the Medicare payment MPPR methodology should be applied in PIP cases if the same treatment is being used in both cases. This Court rejects this argument for several reasons. First, the legislature simply did not say so. Second, as noted in detail above, Medicare specifically excluded chiropractors. Third, a comparison of the chiropractor’s treatment in this case to a therapist treating under Medicare is comparing apples to oranges — here, in the instant case, the chiropractor is merely providing a therapy service, while the Medicare therapist would be providing a rehabilitative therapy service under a written therapy plan certified and supervised by a physician or NPP. Fourth, under the latter instance, the possibility of duplication of services is much greater in the instance of the Medicare therapist, who is required to have the several additional components of work that are simply not required of a chiropractor under Florida’s PIP law. And fifth, in light of the several Medicare exceptions to the “duplication of services” MPPR rule, it is in the Court’s view little more than speculation to conclude that Medicare would have applied the MPPR rule to chiropractors if their services were customarily payable under Medicare. While Florida law does permit an insurer to use “Medicare coding policies and payment methodologies to determine the appropriate amount of reimbursement for medical services,”14 there is simply no policy or methodology under Medicare that covers the chiropractic treatment in the instant case.CONCLUSION
The Defendant improperly reduced the allowable amount of the CPT Codes at issue using MPPR, because it is completely inapplicable to the chiropractic therapy services at issue in this case. MPPR is impermissible in the case at hand for the following reasons: MPPR is provided by Medicare only for those services provided by a physician or non-physician practitioner under a written therapy plan of care and was never contemplated nor does it apply to a chiropractor providing lawful services under Fla. Stat. 627.736(5)(a)(3). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is hereby GRANTED, and the Defendant’s Motion for Summary Disposition/Judgment is hereby DENIED.
However, because of the conflicting trial level decisions, the high volume of cases pending with this issue throughout the State of Florida, and the lack of a controlling precedent that would ameliorate the substantial amount of judicial labor given to this issue, the Court certifies the following question to the Florida Fourth District Court of Appeal as a question affecting the uniform administration of justice:
Whether the Multiple Procedure Payment Reduction (MPPR) is a Medicare methodology applicable under Florida Statute §627.736(5)(a)3 to therapy services rendered by a licensed chiropractor in a PIP case, regardless of whether the chiropractic therapy services are provided under a therapy plan of case.
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1Pursuant to Rule 9.160(b), any appeal of the Court’s decision in this matter must be filed in the Fourth District Court of Appeal, and not the Circuit Court.
2This case originated as a case traveling under the Small Claims Rules. In its Order allowing the parties to invoke the Rules of Civil Procedure in this case pursuant to Rule 7.020(c), the Court retained the Small Claims Rule allowing for summary disposition, Rule 7.135. The Court’s decision in this case does not, however, hinge on the distinction between summary judgment and summary disposition.
3See J. Sebastien Rogers, The Chasm in Florida Appellate Law: Intra-Circuit Conflicting Appellate Decisions, FLA. B.J., Apr. 2018, at 52-55.
4A chiropractic adjustment is not involved in this case.
5Fla. Stat. §627.736(5)(a)3 (2017) (an insurer “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”).
6Fla. Stat. §627.736(5)(a)1 (2017).
7See Medicare Coverage of Non-Physician Practitioner Services, Dep’t of HHS, Office of the Inspector General, Executive Summary (June 2001), at ii (found at https://oig.hhs.gov/oei/ reports/oei-02-00-00290.pdf) (noting that in 2001 Non-Physician Practitioner billings under Medicare were “rising rapidly” and controls on billing had thus far been “limited”).
8Response to FOI Request From Neil Andrews Dated October 29, 2015, attached as Exhibit B to Plaintiff’s Motion [hereinafter cited as FOI Response].
9Betsy Nicoletti, How to Bill for Services by Nonphysician Practitioners, American Academy of Family Physicians (May 2006), located at, https://www.aafp.org/fpm/2006/0500/p45.html (noting the complexity under Medicare for billing for an non-physician practitioner’s services supervised by a physician).
10The Plaintiff raised other reasons in its Motion, but did not pursue them at the hearing. Therefore, this Court declines to address them.
11See FOI Response, supra note 8 (“The MPPR on therapy services applies to separately payable ‘always therapy’ services, i.e., services are paid only by Medicare when furnished under a therapy plan of care. Contractor-priced codes, bundled codes, and a[dd]-on codes are excluded because an MPPR would not be applicable for ‘always therapy’ services furnished in combination with these codes.”)
12CMS Therapy Services, supra, at 10. See also Medicare Coverage of Non-Physician Practitioner Services, Dep’t of HHS, Office of the Inspector General, Executive Summary, (June 2001), at i (found at https://oig.hhs.gov/oei/reports/oei-02-00-00290.pdf) (noting that Non-Physician Practitioners are “nurse practitioners, clinical nurse specialists, and physicians assistants”). See also Betsy Nicoletti, supra note 9 (apparently, certified nurse midwife has now been added to the list of permitted NPPs whose services can be billed under Medicare).
13See Nicoletti, supra note 9.
14Fla. Stat. §627.736(5)(a)3.
