26 Fla. L. Weekly Supp. 125a
Online Reference: FLWSUPP 2602VELAInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will determine to be unreasonable any charges that exceed maximum charges set forth in PIP statute and will pay no more than 80% of schedule of maximum charges clearly and unambiguously elects to limit payment pursuant to statutory fee schedules — Inclusion in policy of statement that insurer may use fact-based method to determine reasonableness of charges does not render policy language ambiguous — 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
FLORIDA HEALTH CLINIC, INC., a/a/o Eduardo Velasquez, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2016-013586 SP-05. Civil Division. June 14, 2017. Ivonne Cuesta, Judge. Counsel: Neil Gonzalez, The Law Offices of Gonalez & Associates, Miami, for Plaintiff. Britany J. Phillips, Florida Progressive PIP House Counsel, Medley, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDEDMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on June 5, 2017, pursuant to Defendant’s Amended Motion for Final Summary Judgment, and the Court having reviewed record evidence, pleadings, and motions and having considered argument of Counsel and legal authority submitted by the parties, and being otherwise fully advised in this matter, does hereby make the following finds of fact and conclusions of law:
FINDINGS OF FACT
1. On or about July 3, 2014, Progressive’s omnibus insured, Eduardo Velasquez, was involved in an automobile accident and allegedly sustained injuries. As a result of those alleged injuries, EDUARDO VELASQUEZ, sought treatment with Plaintiff, FLORIDA HEALTH CLINIC, INC. from July 3, 2014 through September 4, 2014. EDUARDO VELASQUEZ, executed an assignment of benefits, assigning his rights under the policy of insurance with Defendant to Plaintiff. At the time of the motor-vehicle accident, EDUARDO VELASQUEZ, was covered under an insurance policy with Defendant.
2. Defendant received bills for treatment from Plaintiff, FLORIDA HEALTH CLINIC, INC., for dates of service from July 3, 2014 through September 4, 2014. Defendant reduced the charges pursuant to Florida Statute 627.736(5)(a)(1-5) and the policy of insurance which is Progressive’s 9610 D Policy and includes Endorsement A085 FL (05/12). See Affidavit of Litigation Adjuster Thomas Soich. The amount Progressive paid Plaintiff was based upon 80% of 200% of the Medicare Part B fee schedule for the region in which the services were rendered. The amounts allowed reflected a reduction of the practice expense component for selected therapy services. Certain codes billed by Plaintiff were identified by the Defendant as secondary procedure codes subject to the Multiple Procedure Payment Reduction (“MPPR”) rule. An MPPR reduction was applied to the secondary codes. If the allowed amount for the secondary procedure code was less than 200% of the amount set forth in the 2007 Participating Level of Medicare Part B fee schedule, the Defendant paid the Plaintiff at the higher 2007 Participating Level of Medicare Part B fee schedule amount.
3. For CPT Codes the were not subject to the Multiple Procedure Payment Reduction rule Plaintiff received 80% of 200% of the Medicare Part B fee schedule amount for the region in which the services were rendered.
4. For CPT Codes that were paid pursuant to the Workers Compensation Fee Schedule Plaintiff was paid 80% of 100% of the 2008 Florida Workers Compensation Fee Schedule amount.
5. All CPT Codes billed by Plaintiff were paid by Progressive in accordance with its policy of insurance.
6. Plaintiff filed a Complaint for Breach of Contract against Defendant alleging that Defendant failed to pay all amounts owed for PIP benefits.
7. Defendant filed its Amended Motion for Final Summary Judgment and Incorporated Memorandum of Law alleging that it properly reimbursed Plaintiff at 80% of 200% of the schedule of maximum charges after applying the Multiple Procedure Payment Reduction (“MPPR”) rule, which was clearly and unambiguously elected in the policy and that no further payment is due or owing to Plaintiff.
Defendant contends that its policy makes a clear and unambiguous election of the Fee Schedules referenced in Florida Statute 627.736(5)(a)(1) and (5) (a)(3) and that its Policy of insurance complies with Florida Statute 627.736(5)(a)(1) and 5(a)(3) which expressly permits insurers to utilize 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.
Plaintiff contends that Defendant’s policy of insurance does not make a clear and unambiguous election of the Fee Schedules referenced in Florida Statute 627.736(5)(a)(1) and 5(a)(3) as the policy presents hybrid payment methodology which is not permitted by law and further contends that the Multiple Procedure Payment Reduction (“MPPR”) rule is a utilization limit which is barred by Florida Statute 627.736(5)(a)(3).
ANALYSIS AND CONCLUSION OF LAW
1.
Progressive’s Endorsement A085 FL (05/12) is clear and unambiguous and provides notice of Progressive’s election to use the fee schedules in accordance with Florida Statute 627.736(5)(a)(1-5)
This Court finds that Defendant has properly incorporated the fee schedules and payment methodologies found in Florida Statute 627.736(5)(a)(1-5). This Court finds that Defendant’s policy complies with the notice requirement set forth in Florida Statute 627.736(5)(a)(5). Defendant may use the fee schedules and payments methodologies to determine the appropriate amounts of reimbursement.
Progressive’s Endorsement A085 FL (05/12) specifically notifies the insured that:
“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:
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. . .
However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this subsection f., we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Section 440.13 of the Florida Statutes, and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed by us.
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).
The Court finds that the Progressive policy is clear and unambiguous. There is no ambiguity, the Progressive policy goes above the “simple notice” requirement set forth in Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], reh’g denied, SC15-2298. 2017 WL 1130950 (Fla. Mar. 27, 2017). Progressive’s policy provides notice that the fee schedules referenced in Florida Statute 627.736(5)(a)(1)(a through f) and 627.736(5)(a)(3) may be used in determining how bills are paid under the PIP portion of the policy. Further, the policy places the insured on notice that if the payment methodology used goes below the applicable 2007 Medicare Fee Schedule rate Progressive will not pay below the applicable 2007 rate. In the instant case Plaintiff’s bills were never paid below the 2007 floor established by Florida Statute 627.736.
Plaintiff’s argument that Progressive’s A085 Endorsement is ambiguous because it presents a hybrid payment methodology which is barred by law fails. Plaintiff contends that Defendant’s policy creates ambiguity regarding its intent to use the fee schedules because it states:
“If an insured person incurs medical benefits that we deem to he 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.”
Plaintiff contends that this portion of Defendant’s policy allows Defendant to use a fact-based analysis to determine how to pay bills under the policy. However, this argument fails pursuant to the Florida Supreme Court’s ruling in Allstate Insurance Company v. Orthopedic Specialists, etc., 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (“A PIP policy cannot contain a statement that an insurer will not pay eighty percent of reasonable charges because no insurer can disclaim the PIP statute’s reasonable medical expenses coverage mandate. . . . Further, a PIP policy cannot state that the insurer will calculate benefits solely under the Medicare fee schedules contained within section 627.736(5)(a)(2) because the Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive payment methodology.”)
The Court finds that Progressive’s Insurance Policy which includes Endorsement A085 clearly and unambiguously provides notice that Defendant will pay no more than 80% of the Medicare Part B fee schedule, and that Defendant automatically may apply the MPPR payment methodology. See Fla. Stat. 627.736(5)(a)(1)-Fla.Stat. 627.736(5)(a)(5).
2.
The Court finds that the Multiple Procedure Payment Methodology (“MPPR”) rule is not a utilization limit.
The Court finds that Multiple Procedure Payment Reduction (“MPPR”) rule is a payment methodology of the Federal Centers for Medicare and Medicaid Services (“CMS”) which reduces the practice expense component of reimbursement pursuant to the Medicare Part B fee schedule for secondary procedure codes of selected “always therapy” codes performed on the same patient on the same day by a provider regardless of the session or discipline. The MPPR rule identifies the primary procedure code (the code with the highest practice expense) and secondary procedure codes (codes with lower practice expenses) performed on the same patient on the same day and reduces the practice expense for the secondary codes to more appropriately value the secondary codes when calculating reimbursement under the Medicare Part B fee schedule.
The Multiple Procedure Payment Reduction only affects payment not services or treatment. Furthermore, it is the 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.
Plaintiff argued that MPPR is a utilization limit because a medical provider may not want to provide treatment if it knows it will be paid less. This Court rejects Plaintiff’s argument as there is no record evidence in this case supporting Plaintiff’s position. To the contrary, each and every CPT Code billed by Plaintiff in this case was reimbursed so Plaintiff’s argument that use of MPPR will cause a chilling effect is not supported. Under Plaintiff’s theory, the schedule of maximum charges itself would be a utilization limit, which would completely contradict the two most recent versions of the PIP statute and render the statutory language useless as every fee schedule would be deemed a utilization limit.
Furthermore, according to the Rules and Regulations contained in the Federal Register, Vol. 75, page 73241 (Nov. 29, 2010), “Paying more appropriately for therapy services in CY 2011 will allow patients to receive more medically necessary therapy services before reaching the therapy cap.”
Progressive argued that reducing the reimbursement for medical services means that the insured has less of a co-payment and would allow the patient to receive more treatment. MPPR in no way limits the patient’s right to receive services. If anything, it results in the patient being able to receive more therapy services. It does not limit the number of treatments or put a cap on the therapy services.
Based on the record evidence and all materials filed by the parties which are admissible as competent summary judgment evidence, the Court finds that MPPR is clearly a payment methodology and not a utilization limit as the Claimant was not barred or prevented from receiving services and care due to Defendant’s application of MPPR. Therefore, this Court finds that F.S. §627.736(5)(a)(3) allows Defendant to rely on MPPR in reimbursing Plaintiff in this case.
Finally, the Court finds that the Plaintiff failed to present any admissible evidence that the Defendant did not pay Plaintiff in full pursuant to the statute and policy. The Defendant, PROGRESSIVE SELECT INSURANCE COMPANY is entitled to Final Summary Judgment as a matter of law.
It is ORDERED AND ADJUDGED that Defendant’s Amended Motion for Final Summary Judgment be, and the same is hereby GRANTED. Plaintiff shall take nothing by this action. FINAL SUMMARY JUDGMENT IS HEREBY ENTERED IN FAVOR OF THE DEFENDANT AND IT SHALL GO HENCE FORTH WITHOUT DAY. The Defendant is the prevailing party in this action. The Court reserves jurisdiction to determine Defendant’s entitlement to reasonable attorneys’ fees and costs.
