26 Fla. L. Weekly Supp. 996a

Online Reference: FLWSUPP 2612DUYOInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Insurer that elected use of statutory fee schedule reimbursement methodology in PIP policy is entitled to use fee schedule amounts that reflect 2% reduction applied by Centers for Medicaid and Medicare Services for CPT codes for chiropractic manipulation when reimbursing for chiropractic services — Question certified

CENTRAL PALM BEACH PHYSICIANS AND URGENT CARE d/b/a TOTAL MD FAMILY MEDICINE & URGERNT CARE, a/a/o Giana Duyos, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court,15th Judicial Circuit in and for Palm Beach County. Case No. 50-2016-SC-010421 SB (RF). January 11, 2019. Sandra Bosso-Pardo, Judge. Theophilos Poulopoulos, Schiller Kessler Group, for Plaintiff. Michael S. Walsh, Kubicki Draper, PA, Fort Lauderdale, for Defendant.

ORDER DENYING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT AND GRANTINGIN FAVOR OF THE NON MOVING DEFENDANTANDCERTIFICATION TO THE FOUTH DISTRICT COURT OFAPPEALS AS A QUESTION AFFECTING THEUNIFORM ADMINSTRATION OF JUSTICE,PURSUANT TO FLA. STAT. §34.017 (1)(b), RULES 9.303 (b)(4)

THIS CAUSE having come before the Court on December 4, 2018 for a hearing on the Plaintiff’s Motion for Partial Summary Judgment, and the Court, having reviewed the Motion, the entire Court file, the relevant legal authorities, having heard the arguments of the parties’ respective counsels, reviewed the entirety of the record, and having been sufficiently advised in the premises, it is hereby

ORDERED and ADJUDGED, as follows:

1. The Plaintiff’s Motion for Partial Summary Judgment is DENIED AND the Court grants summary judgment in favor of the non moving Defendant (see Opler v Wynne, 402 So2d 1309 (3d DCA 1981); Carpineta v Shields, 70 So2d 573 (Fla 1954).

FACTS

1. This claim for Florida No-Fault (“PIP”) benefits arises out of a September 3, 2014 motor vehicle accident involving the claimant, Giana Duyos. The Insured’s policy of automobile insurance with State Farm provided $10,000 in PIP benefits subject to the terms and conditions of the insurance policy and Fla. Stat. 627.736.

2. The Plaintiff contends that State Farm impermissibly reduced payment for chiropractic manipulations as to CPT 98941 by “2%.”

LEGAL ANALYSIS

A. The PIP Statute and the Policy Language

In assessing payment for CPT Code 98941, State Farm consulted the PIP Statute, Fla. Stat. 627.736(5), which provides in pertinent part (emphasis added):

(5) CHARGES FOR TREATMENT OF INJURED PERSONS.

(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by 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 [. . . .] 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 schedules 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).

Accordingly, State Farm based its payment on 80% of 200% of the allowable amount under the participating physicians fee schedule (“PPFS”) of Medicare Part B for CPT Code 98941.

B. The Medicare Chiropractic Services Demonstration (2% Reduction)

During January 1, 2010 through July 1, 2014, Medicare implemented a 2% reduction in payment for certain chiropractic manipulative codes (CPT Codes 98940-98942) — which included CPT Code 98940. This reduction derived from Section 651 of Medicare Prescription Drug, Improvement and Modernization Act (“MMA”) of 2003. Pub. L. 108-173 (2003), which authorized a demonstration to evaluate the feasibility and advisability of expanding Medicare coverage for chiropractic services. For the period of the demonstration, the 2% reduction for CPT Code 98940 (and the other chiropractic codes) was incorporated into the applicable PPFS National Payment Amount File for Medicare Part B:

To implement the required BN[¹] adjustment . . . we are reducing the payment amount under the PFS for the chiropractic CPT Codes (that is, CPT codes 98940, 98941, and 98942). As explained previously, we are finalizing our plans to recoup $10 million each year through adjustments to chiropractic CPT codes for calendar years 2010 through 2014. In order to achieve the $10 million recoupment during such years, payment under the PFS for these codes will be reduced by approximately 2 percent. As stated in prior PFS rules, application of the BN adjustment would be specific to these three codes which represent the “chiropractic fee schedule” because they are the only chiropractic codes recognized under the PFS. This methodology also appropriately impacts the chiropractic profession that is directly affected by the demonstration.

74 Fed. Reg. 226 at 61927 (Nov. 25, 2009) (emphasis added).

As the “2 percent” reduction to CPT codes 98940-98942 were incorporated into the “PFS” (Physician Fee Schedule) State Farm properly based it’s payment based on 200% of the allowable amount under the Participating Physician Fee Schedule of Medicare Part B found in the PFS National Payment Amount Files. The “July Update to the CY 2014 Medicare Physician Fee Schedule Database (MPFSDB)” filed by State Farm confirms that the 2% reduction to CPT codes 98940-98942 was incorporated into the PFS (Physician Fee Schedule) from 2010 and only ended on July 1, 2014. Furthermore, a review of the 2014 “Physician Fee Schedule (PFS)” (PFALL13AR) January 2014 release which was in effect as of March 1 2013 filed by State Farm confirms that the non-facility price for CPT 98941 was in fact “42.22” which at 200% equals $84.44 which is the exact amount approved by State Farm. See Defendant’s Legal Brief in Opposition, Exhibit 3. The Court finds that the figure of $84.44 is in fact 200% of the allowable amount under the participating physician fee schedule of Medicare Part B for CPT 98941 as of March 1 for the year of 2014.

The Plaintiff contends that State Farm was required to calculate payment for CPT 98941 by using the “Relative Value Units (RVU’s)” (aka “the formula”) found in the National Physician Fee Schedule Relative Value File Calendar Year 2014, of which this Court took Judicial Notice, which states:

2014 Non Facility pricing amount = [(work RVU * Work GPCI) + (Non-Facility PE RVU * PE GPCI) + (MP RVU * MP GPCI)] * conversion factor (CPF)

Note: If the calculation flag has a value of “3”, then an adjustment of .98 should be applied to the fee schedule amount for the following codes: 98940, 98941 and 98942

Furthermore and pursuant to the 2014 National Physician Fee Schedule Relative Value file (January Release), CPT codes 98940-98942 have a “calculation flag” of 3 and thus “an adjustment of .98 should be applied.” See Exhibit 5 of Defendant’s Legal Brief in Opposition The Plaintiff maintains that the application of the formula/RVU to CPT 98941 results in a figure of $86.16 although the Plaintiff overlooks the .98 adjustment applicable to 98941 as it has a calculation flag v of “3”. With the .98 adjustment ($86.16 x .98), the resulting amount is $84.44. As a result, even under the Plaintiff’s own theory, State Farm properly paid CPT 98941

The Plaintiff argues that State Farm should have paid per the “Relative Value Units (RVU)”, “conversion factor” and geographic adjustments (PE GPCI, MP GPCI, WORK GPCI, PE RVU, WORK RVU, MPU RVU) contained in the “formula.”. However, F.S. 627.736 (5). nor State Farm’s 9810A Policy make any reference to “Relative Value Units (RVU)”, a “conversion factor” or any of the geographic adjustments (PE GPCI, MP GPCI, WORK GPCI, PE RVU, WORK RVU, MPU RVU) contained in the “formula.” As a result, the Plaintiff’s argument is contrary to the Legislative intent of F.S. 627.736 (5)(a)1.f. which states an insurer may allow “200% of the allowable amount under the Participating Physician Fee Schedule of Medicare Part B.”

RULING

“If the statutory wording is unambiguous, then judicial inquiry is complete.” Klonis v. State, 766 So. 2d 1186, 1189 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D2230a]. “Courts are not to add, subtract, or distort the words the Legislature has written.” Anderson Columbia v. Brewer, 994 So.2d 419, 420 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2473a]. Plaintiff’s theory is inconsistent with these principles, as it asks the Court to abandon the clear language of the Statute and the intent of the Legislature by adopting a reimbursement methodology (RVU’s) not contemplated by the plain language of the Statute, the policy, and/or by the intent of the Legislature.

The applicable language of the section (5)(a)1.f. of the PIP Statute unambiguously provides that payment is limited to “200 percent of the allowable amount under. . .the participating physicians fee schedule of Medicare Part B.” The policy and Statute are clear that the insurer is to use 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, and the 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. . .” Fla. Stat. 627.736 (5)(a)2 (emphasis added). Fla. Stat. 627.736 95)(a)1.f.

Based on the above, the Court finds that State Farm properly based its payment for CPT 98941 on “the allowable amount under the participating physician fee schedule of Medicare Part B” as mandated by the State Farm policy (form 9810A) and the Fla. Stat. 627.736 (5)(a)1.f.

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 Appeals as a question affecting the uniform administration of justice:

When a PIP insurer has elected the Medicare fee schedule limitation permitted by F.S. 627.736 (5)(a)1.f.,which provides that the insurer may limit reimbursement to “200 percent of the allowable amount under the participating physicians fee schedule of Medicare part B,” is the PIP insurer required to calculate reimbursement for CPT Codes 98940-98942 for the period of 2010 through July 1, 2014 based on the relative value unit (“RVU”) formula found in the National Physician Fee Schedule Relative Value File Calendar Years 2010-2014 and if so, is the PIP Insurer entitled to the .98 adjustment for CPT Codes 98940-98942 as those CPT Codes have a Calculation Flag value of “3.”?

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¹The demonstration was required to achieve budget neutrality (BN). 74 Fed. Reg. 226 at 61927 (Nov. 25, 2009).