26 Fla. L. Weekly Supp. 903a

Online Reference: FLWSUPP 2611ALANInsurance — Personal injury protection — Coverage — Medical expenses — Electrodes — PIP insurer is not required to pay separate additional charge for electrodes used in conjunction with electrical muscle stimulation treatment where electrodes are not compensable under Medicare Part B fee schedule or workers’ compensation fee schedule — No merit to arguments that electrodes are compensable as supply/durable medical equipment or because superior electrodes were medically necessary

FLORIDA INJURY DELTONA INC., a/a/o Jose Alanis-Esparza, Plaintiff v. ALLSTATE INS CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO13003945, Division 70. January 3, 2019. John D. Fry, Judge. Counsel: Todd Landau, and Christina Kalin, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Gladys Perez Villanueva, and Rachel LaMontagne, Shutts & Bowen, LLP, Miami, for Defendant.

ORDER GRANTING SUMMARY JUDGMENTAND FINAL JUDGMENT IN FAVOR OF DEFENDANT

THIS MATTER came before the Court, December 18, 2018, on the Plaintiff, FLORIDA INJURY DELTONA, INC. a/a/o Jose Alanis-Esparza’s, Amended Motion for Summary Judgment as to A4556 Denial and Response in Opposition to Defendant’s Motion and Defendant, ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’s, Amended Motion for Summary Judgment and Supporting Memorandum of Law. Plaintiff was represented by Todd Landau, Esq. and Christina Kalin, Esq. of Landau & Associates, P.A., and Defendant was represented by Gladys Perez Villanueva, Esq. and Rachel LaMontagne, Esq. of Shutts & Bowen, LLP. The Court having considered the parties’ motions, having heard argument from counsel, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:Material Facts

Plaintiff provided in-office electrical muscle stimulation (“E-Stim”) treatment to Allstate’s insured to treat injuries sustained in a covered automobile accident. In-office E-Stim requires the use of electrodes. Allstate paid Plaintiff’s bill in full for the covered in-office procedure (Code G0283). Plaintiff submitted a bill for date of service July 1, 2010 that included separate charges for electrodes under Code A4556. The parties agree that the electrodes in this case were used in conjunction with an in-office physician service. Allstate fully reimbursed Plaintiff for all charges billed, except for the electrodes (Code A4556).Legal Issue

The sole issue presented by this lawsuit is whether Allstate is required to pay a separate, additional charge for the electrodes (Code A4556) used in providing the in-office treatment. In a nutshell, the issue for this Court’s consideration is the compensability of electrodes used for in-office E-stim under Florida Statute 627.736, section (5)(a)2.f. (2010).

In 2008, the Florida Legislature amended section 627.736 to allow insurers to limit reimbursements based on the Medicare fee schedules, among other objective sources that provide for reasonable reimbursements for medical services. See Geico General Ins. Co. v. Virtual Imaging Serv., 141 So. 3d 147, 151-152 (Fla. 2013) [38 Fla. L. Weekly S517a] (citing ch. 2007-324, §20, Laws of Fla.). The Legislature, in enacting the 2008 amendments, brought certainty to reimbursements made under Florida’s No-Fault Statute, even providing the mechanism for determining compensability. Section (5)(a)2.f. provides:

However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 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 is not required to be reimbursed by the insurer.

Therefore, this Court must determine whether A4556 is reimbursable under the Medicare Fee Schedules; if not, then this Court must determine whether A4556 is reimbursable under Florida’s Workers’ Compensation reimbursement scheme; if not, then Allstate is not required to reimburse for A4556.

In its motion, Plaintiff argues that the electrodes here are not “incident to” the E-Stim because the service was not provided on the same day that the electrodes were provided,[¹] and therefore the electrodes are reimbursable. Plaintiff further argues that the electrodes provided in this case are reimbursable because they were “superior,” medically necessary, and constituted a higher standard of care, given the insured’s injuries, symptoms, and complaints. This Court disagrees with Plaintiff’s position, because taking Plaintiff’s argument to its logical extension would lead to disregarding the enactment of fee schedules, rewriting the parties’ policy, which specifically allows the insurer to utilize fee schedules, and revert back to the pre-2008 amendment analysis of PIP cases, where the insurer was required to pay for any “medically necessary” service or supply. While a service or supply must be reasonable, related, and necessary under either the fee schedule or fact-dependent alternative mechanisms for analysis of PIP reimbursements, if a service or supply is not reimbursable under Florida’s No Fault statute, the medical necessity of such supply or service does not circumvent Florida law to make it reimbursable. See Geico v. Virtual, 141 So. 3d at 155-156 (discussing that subsection (5)(a)1 is a fact-dependent inquiry determined by consideration of various factors such as usual and customary charges and payments accepted by the provider and reimbursement levels in the community and subsection (5)(a)(2) provides alternative mechanism for determining reasonableness by reference to the Medicare fee schedules). The separate billing of A4556 in this case is not reasonable, as it is incident to the in-office service, and, therefore, not reimbursable.Conclusions of Law

Summary judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to judgment as a matter of law. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” The Florida Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006) [31 Fla. L. Weekly S171a]; Menendez v. West Gables Rehab. Hosp., LLC123 So. 3d 1178, 1180 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2004a]. It is well-settled that summary judgment should not be granted unless the facts are so crystallized that all that remain are issues of law. See Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). The issue, as framed by Allstate, presents a pure question of law.

In Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], the Florida Supreme Court held that Allstate’s policy language provides legally sufficient notice of the insurer’s election to limit reimbursements under the No-Fault Statute and apply “all limitations,” “including all fee schedules,” in Section (5)(a). Section 627.736(5)(a)(2), Florida Statutes (2010), provides that an insurer:

. . . may limit reimbursement to 80 percent of the following schedule of maximum charges:

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f. . . . 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 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 is not required to be reimbursed by the insurer.

(emphasis added).

Given the plain language of the statute, the Court must first consider whether A4556, as billed in this case, is compensable under the Medicare Part B Physician Fee Schedule, which generally applies to services rendered by physicians in an office setting. The parties do not dispute that the services at issue in this case were rendered by or under the supervision of a physician in an office setting. The Medicare Part B Physician Fee Schedule does not assign a value to Code A4556. Both parties presented evidence that supplies used in an office setting in conjunction with a physician service are not ordinarily compensable under the Medicare Part B Physician Fee Schedule because American Medical Association and Medicare CPT billing guidelines deem supplies not payable when the supply is “incident to” a physician service. The supply of electrodes, when billed in conjunction with electrical stimulation performed in-office is considered “incident to a covered physician’s service” performed in-office. Thus, the billing of A4556 is inappropriate under the Medicare Part B Physician Fee Schedule.

Plaintiff, however, argues that the electrodes herein were not “incident to” and are, therefore, compensable as a supply/durable medical equipment. This Court rejects Plaintiff’s argument, set forth in its motion for summary judgment, that because the electrodes were provided to the patient and billed on a different day than the in-office E-Stim, that the electrodes were, therefore, not incident to the in-office E-stim service. The record before the Court demonstrates that the electrodes at issue here were billed on the same day as the E-stim. Moreover, the Court also rejects Plaintiff’s argument that the electrodes are not “incident to” the E-stim because superior electrodes were medically necessary in this case. The medical necessity of a service or supply does not require reimbursement of an otherwise noncompensable service or supply under Section (5)(a)(2)f of the PIP Statute.

Plaintiff further argues that Code A4556 is priced under the Durable Medical Equipment, Prosthetic, Orthotics, and Supplies (“DMEPOS”) fee schedule, and, therefore, compensable even though the DMEPOS fee schedule was not added to the PIP Statute until January, 2013, three years after the version of the statute applicable to this case. This argument misconstrues the reimbursement scheme mandated under Florida law. To be reimbursable under the DMEPOS fee schedule, the supply of electrodes must be prescribed in conjunction with “durable medical equipment” and the durable medical equipment must satisfy the requisite criteria. In order for an item to be considered “durable medical equipment,” it must satisfy all of the following criteria: (1) can withstand repeated use (i.e., durable); (2) will be used for a medical reason; (3) is not usually useful to someone who is not sick or injured; and (4) is appropriate for use in the patient’s home. See Medicare Claims Processing Manual, Chapter 20 — Durable Medical Equipment, Prosthetic, Orthotics, and Supplies (“DMEPOS”) — 10.1.1 – Durable Medical Equipment (DME) available at https://www.cms.gov/Regulations?and?Guidance/Guidance/Manuals/downloads/clm104c20.pdf. Allstate admits that if electrodes are prescribed and used in conjunction with prescribed, medically necessary “durable medical equipment,” such as a Transcutaneous Electrical Nerve Stimulation Device (“TENS” unit), reimbursement may be made for disposable supplies (i.e., electrodes). See Medicare Claims Processing Manual, Chapter 20 – Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS), Section 10.2 — Coverage Table for DME Claims. Electrodes, standing alone and billed under Code A4556, where the service was provided in the physician or health care provider’s office, do not satisfy the criteria for “durable medical equipment.” Moreover, medical supplies and durable medical equipment must be prescribed by a physician. See Florida Workers’ Compensation Manual. Additionally, the medical supplier must obtain the insurer’s authorization and a payment agreement prior to furnishing medical supplies or equipment. Id.

Here, the electrodes were not used in conjunction with any “durable medical equipment.” For example, the patient was not prescribed a Transcutaneous Electrical Nerve Stimulator (“TENS”) unit for use in the home, with which the patient could have utilized the electrodes. The parties agree that the electrodes in this case were used in conjunction with the in-office physician service of electrical muscle stimulation. Accordingly, because the electrodes herein are a supply necessary to perform an in-office procedure or provide a service, the electrodes are included in the reimbursement of the service and “shall not be made separately.”

The Court must next consider whether A4556 is compensable under Florida’s Workers’ Compensation. Supplies necessary for a physician to provide in-office services are not separately reimbursable under Florida’s Workers’ Compensation reimbursement scheme. Florida Administrative Code Rule 69L-7.020 adopts the Florida Workers’ Compensation Health Care Provider Reimbursement Manual (2008 Edition) (“Florida Workers’ Compensation Manual”) by reference. “The manual contains the Maximum Reimbursement Allowances determined by the Three-Member Panel pursuant to Section 440.13(12), Florida Statutes, and establishes reimbursement policies, guidelines, codes and maximum reimbursement allowances for services and supplies provided by health care providers.” Fla. Admin. Code R. 69L-7.020.

SECTION VII: MEDICAL SERVICES.

. . .I. Medical and Surgical Supplies (not incidental to a service or procedure).

1. Reimbursement for supplies that are necessary to perform a procedure or provide a service shall be included in the reimbursement for the service and shall not be made separately.

2. Reimbursement for supplies and materials not incidental to a service or procedure shall be reimbursed under the specific HCPCS Level II supply code. When a more specific HCPCS code is not available for supplies and materials, use HCPCS code A9999. Reimbursement shall be limited to an amount not to exceed twenty percent (20%) above the actual documented cost based on submission of documentation that substantiates the provider’s cost, including applicable manufacturer’s shipping and handling.

Id., pp. 21-22 (emphasis added).

As is the case with the Medicare Physician Fee Schedule, under the Florida’s Workers’ Compensation Fee Schedule, the physician’s service of E-Stim (billed as Code G0283) is priced, but the electrodes, standing alone (billed as Code A4556), are not. Florida Workers’ Compensation explicitly recognizes that “reimbursement for supplies necessary to perform a procedure. . . .shall not be made separately.”

Under Florida law, “[s]ervices, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.” Because A4556 under the factual scenario presented herein is not compensable under Medicare or Workers’ Compensation, Allstate properly denied reimbursement.

Plaintiff, however, strays from the statutory language, and argues that its expert has provided a detailed explanation as to why A4556 was properly billed, consistent with “custom” and “notice” and distinguished the different electrodes, providing for medical necessity of superior electrodes in the instant case. Plaintiff cites sister court orders, which have equated medical necessity with compensability under Florida law. This Court disagrees that an insurer can be judicially forced to reimburse for a service or supply, regardless of an impeccable expert’s testimony that said service or supply is medically necessary, if such service or supply is not reimbursable under Florida law. To hold otherwise would be to obliterate the Legislature’s enactment of fee schedule and the parties’ contract, which provides express notice that reimbursement shall be made pursuant to the fee schedules.

A service or supply does not become compensable, under Florida law, just because it is medically necessary. At the hearing, Allstate presented an analogy worth noting. Florida’s No-Fault statute provides that “medical benefits do not include massage.” See §627.736 (1)(a)5, Fla. Stat (2013). A provider may present expert testimony that a massage in a particular case was medically necessary. Further, it could present expert testimony that it provided a higher standard of care by providing a superior massage. Florida law dictates the non-compensability of massages by PIP insurers. The purported medical necessity of a massage does not circumvent the application of Florida law.

Plaintiff’s attempt to circumvent Florida’s No-Fault law and the 2008 amendments allowing the utilization of fee schedules to determine reimbursements would revert Florida back to the default PIP analysis, without consideration of the fee schedules. Consequently, insurers would be required to reimburse for any service deemed medically necessary, resulting in medical necessity trials of any challenged or denied codes. This is precisely what the Florida Legislature sought to avoid in enacting the fee schedules.Conclusion

Allstate’s denial of reimbursement for electrodes (A4556) was proper as a matter of law. The plaintiff’s billing of A4556 separately from the electrical stimulation (G0283), as presented under the facts of this case, was impermissible under the Medicare Fee Schedules and Florida Workers’ Compensation Fee Schedule. Accordingly, it is:

ORDERED AND ADJUDGED that Allstate’s Amended Motion for Summary Judgment is GRANTED and Plaintiff’s Amended Motion for Summary Judgment as to A4556 Denial is DENIED.

The denial of A4556 being the sole remaining dispositive issue,

IT IS FURTHER ORDERED AND ADJUDGED that Final Judgment is entered in favor of Allstate in this case. Plaintiff shall take nothing by this action, and Defendant shall go hence without day. This court reserves jurisdiction to determine Allstate’s entitlement to and amount of attorney’s fees and costs.

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¹E-stim was, in fact, billed on the same day as the electrodes in this case.