26 Fla. L. Weekly Supp. 146a
Online Reference: FLWSUPP 2602CANNInsurance — Personal injury protection — Coverage — Medical expenses — Multiple Procedure Payment Reduction is payment methodology whose use is allowed by section 627.736(5)(a)3, not utilization limit prohibited by that statute — PIP policy that provides that insurer will apply MPPR when determining amount payable under Medicare fee schedule clearly and unambiguously provided notice of insurer’s intent to rely upon MPPR in calculating reimbursement
CORAL SPRINGS PHYSICIANS ASSOCIATE, INC., a/a/o Neil Cann, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 15-2466 (52). October 31, 2016. Giuseppina Miranda, Judge. Counsel: Todd Landau, Todd Landau, P.A., Hallandale Beach, for Plaintiff. Randall B. Bishop and Kevin P. Sincerbox, Progressive PIP House Counsel, Ft. Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT ON ISSUE OF POLICYLANGUAGE AND APPLICATION OF MPPRORDER DEFERRING RULING ON DEFENDANT’SMOTION FOR ENTRY OF FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for Hearing on October 20, 2016 on the Defendant’s Motion for Final Summary Judgment. During the hearing, Plaintiffs briefly discussed their cross Motion for Summary Judgment and made argument that Defendant’s Motion is not dispositive of the Case; however, Plaintiff’s arguments as to the finality of Defendant’s motion were not fully explored due to time constraints. Notwithstanding, the parties’ arguments relevant to the A085 policy endorsement and application of the Multiple Procedure Payment Reduction (hereinafter referred to as “MPPR”) were fully explored.
The Court, having reviewed the Defendant’s Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
A. At the time of the alleged accident, the claimant was insured by an automobile insurance policy contract form 9610 (10/05); A085 FL (05/12) Endorsement issued on February 6, 2016 for coverage dates February 6 through August 6 2014.
B. This Court has previously found that Defendant has properly incorporated the participating physicians fee schedule of Medicare Part B (hereinafter referred to as the “fee schedule”) into the policy of insurance
C. The fee schedule is delineated in the “Personal Injury Protection Coverage Endorsement” section of the policy titled “Unreasonable or Unnecessary Medical Benefits”.
The pertinent section of the policy which specifically notifies the insured of the policy limitation is described as follows:
“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. . . we will limit reimbursement to, and pay no more than, 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 the participating physicians fee schedule of Medicare, Part B. . .”
D. Irrespective of the Defendant’s proper election of the fee schedule, Plaintiff asserts that Defendant has improperly applied the Multiple Procedure Payment Reduction (hereafter referred to as “MPPR”) when calculating reimbursement of Plaintiff’s bills in violation of Fla. Stat. §627.736(5)(a)(2). Fla. Stat. §627.736(5)(a)(2) reads as follows:
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. For purposes of this subparagraph, the term “service year” means the period from March 1 through the end of February of the following year.
E. The Plaintiff’s argued that the fee schedule referenced in the PIP statute does not include any other conditions or restrictions of the federal Centers for Medicare and Medicaid Services (hereinafter referred to as “CMS”). Plaintiff’s argument is misplaced because Plaintiff fails to apply Fla. Stat. §627.736(5)(a)(3) to its analysis. Fla. Stat. §627.736(5)(a)(3) reads as follows:
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)
F. When applying the plain meaning of the statute to this analysis, it is clear to this Court that the Florida legislature carved out two (and only two) exceptions of the CMS reimbursement limitations. These exceptions are:
(i) A PIP insurer may not limited the number of treatments
(ii) A PIP insurer may not limit the type of a health care provider, so long as the provider is lawfully providing care or treatment under the scope of his or her license.
G. The remainder of Fla. Stat. §627.736(5)(a)(3) (emphasized above) specifically permits PIP insurers to utilize all other CMS coding policies and payment methodologies to PIP claims.
H. Because the legislature carved out only two specific exclusions of CMS regulations, this court cannot assume additional exclusions should apply. See Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) [21 Fla. L. Weekly S41b]. (“Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.”) If the legislature intended to prohibit the use of MPPR, they would have specifically done so.
I. This Court finds that the MPPR to be a payment methodology and not a utilization limit. According to the information provided by the federal government in the administration of Medicare, MPPR applies only “when multiple services are furnished by the same physician, to
the same patient, in the same session, on the same day.” See www.cms.gov. See also, Multicare Rehabilitation, LLC a/a/o Robert Rego v. Progressive Select Insurance Company, 24 Fla. L. Weekly Supp. 171a (County Court, 17th Judicial Circuit, Honorable Peter B. Skolnick, January 14, 2016. Motion to vacate denied March 10, 2016).
J. Plaintiff argued, in the alternative, that even if the Court finds that the statute permits the use of coding and payment methodologies, the the wording of the policy precludes Defendant from utilizing the MPPR. Plaintiff mainly relies on the ruling of Orthopedic Specialists (Kelli Serridge) v. Allstate Insurance Company, 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a] and focuses on the term “shall be subject to” in Defendant’s policy.
K. The pertinent part of the policy reads as follows:
“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 . . . or any other provider will be subject to the Center for Medical Services (CMS) coding policies and payment methodologies, including applicable modifiers. The CMS policies include, but are not limited to . . . Multiple Procedure Payment Reduction (MPPR). . .” (emphasis added).
L. This Court finds that the holding Orthopedic Specialists does not apply to the case at bar and does not create an ambiguity in the policy because Defendant’s policy has clearly and unambiguously made an election of the fee schedule. Once the election to limit reimbursement pursuant to the physician’s fee schedule is properly made, the insurer is free to utilize all the Medicare coding policies and payment methodologies, including applicable modifiers to determine the appropriate amount of reimbursement for medical services, so long as it does not constitute a utilization limit. See §627.736(5)(a)(3), Florida Statutes (2012).
Based on the foregoing, is hereby ORDERED AND ADJUDGED: the Defendant’s Motion for Summary Judgment is GRANTED on the issue of proper election of the fee schedule and use of MPPR. The issue of final disposition is DEFERRED. The parties shall schedule a status conference to present argument on the issue of whether this court’s ruling is dispositive of this case.
