26 Fla. L. Weekly Supp. 416a

Online Reference: FLWSUPP 2605ESTEInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Because 2% reduction applied by Centers for Medicaid and Medicare Services to physician fee schedule payment amounts for CPT codes for chiropractic manipulation is explicit part of formula for calculating fee schedule payment amounts for those CPT codes, PIP insurer is entitled to use fee schedule amounts that reflect 2% reduction when reimbursing for chiropractic services under PIP policy that adopts statutory fee schedules and is not required to calculate reimbursement using formula that would add 2% back into fee schedule payment amounts

FLORIDA INJURY KISSIMMEE, LLC, (a/a/o Clara Estevez), Plaintiff/Petitioner, v. INFINITY AUTO INSURANCE COMPANY, Defendant/ Respondent. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO14009130, Division 70. June 29, 2018. John D. Fry, Judge. Counsel: Gregory Blackburn, Landau and Associates, for Plaintiff. Gladys Perez Villanueva, Shutts & Bowen LLP, Miami, and Deborah Perez, Law Offices of Deborah N. Perez, for Defendant.

FINAL SUMMARY JUDGMENTORDER ON INFINITY’S MOTIONFOR FINAL SUMMARY JUDGMENT

This matter came before the Court upon the Defendant, Infinity Auto Insurance Company (“INFINITY” ‘s) Motion for Final Summary Judgment on June 22, 2018. Plaintiff, Florida Injury Kissimmee (a/a/o Clara Estevez), was represented by Gregory John Blackburn, Esq. of Landau & Associates, and Defendant, INFINITY, was represented by Gladys Perez Villanueva, Esq. of Shutts & Bowen and Deborah N. Perez of Law Office of Deborah N. Perez & Associates. The Court, having heard argument of the Parties, considered the court file, legal memoranda, and applicable case law, and being otherwise duly advised in the matter, makes the following findings of fact and conclusions of law.

INTRODUCTION

The issue for the Court’s consideration is referred to as the “2 percent issue.” Although this Court has previously ruled on the matter, Wasserman Chiropractic, Inc. (a/a/o Gerald Robins) v. Auto Club South Insurance Company, Case No. CONO 15008352(70) (Nov. 6, 2017) [25 Fla. L. Weekly Supp. 837b], this order further expands on the Court’s previous analysis and address arguments that have since developed.

The genesis of the 2 percent issue lies in a study conducted by Medicare to evaluate advisability of expanding coverage for chiropractic services under Medicare. The study was required by Section 651 of Medicare Modernization Act (MMA), which required an evaluation to expand Medicare coverage to include certain chiropractic services. See 74 FR 61738-01, 2009 WL 4057861, *61926-28 (Nov. 25, 2009).¹ The study was required to be budget neutral, but the costs were higher than expected. Thus, in order to recover $50 million in expenditures from the study, from 2010 through 2014, Medicare adjusted payments for chiropractic services for CTP Codes 98940, 98941, and 98942, and accordingly deducted 2 percent from payments for chiropractic services. Effective July 1, 2014, the 2 percent reduction was eliminated, as all of the funds for the study had been recouped.

Plaintiff argues that the “allowable amount” is derived solely from the formula published in the Federal Register (Medicare Non-Facility Pricing = [(Work RVU x Work GPCI) + (Non-Facility PE RVU x PE GPCI) + (MP RVU x MP GPCI)] x Conversion Factor]. In a nutshell, Plaintiff argues that an insurer may not rely upon the amount that is actually paid by Medicare under the Physician Fee Schedule for CPT Codes 98940, 98941, and 98942 as published and promulgated at http://www.cms.gov/PhysicianFeeSched/, but, rather, should have calculated a different payment amount by engaging in a mathematical equation used by Medicare in promulgating its fee schedules in order to add the 2 percent that had been adjusted by the Centers for Medicaid and Medicare Services “CMS” to the fee schedule for the chiropractic services study.

There is no legal support for Plaintiff’s position in Florida law. The Florida Legislature clearly and explicitly has spoken: “the applicable fee schedule of payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the service year in which the services, supply or care was 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.”

As will be more fully set forth below, Infinity has a right to apply fee schedule limitations under section 627.736(5)(a), specifically to pay 80 percent of 200 percent of the allowable amount of the participating physicians fee schedule of Medicare Part B in effect on March 1 of the service year in which the services were rendered for the corresponding area in which the services were rendered for CPT Codes 98940, 98941, and 98942. The “allowable amount” of the applicable fee schedule on March 1 of the service year remains the sole consideration for reimbursement “notwithstanding any subsequent change made to the fee schedule or payment limitation.”Fee Schedule and The Florida Legislature

At the heart of Plaintiff’s argument is an attack on Infinity’s ability to utilize the objective schedule of maximum charges as required by the Florida Legislature. Plaintiff concedes, and this Court has already found, that Infinity’s policy properly elected the fee schedule. See Hollywood Injury Rehabilitation Center, Inc. (Derrick Ebanks) v. Infinity Indemnity Ins. Co., 26 Fla. L. Weekly Supp. 54a (Fla. Brwd. Cty. Ct. Mar. 28, 2018). Plaintiff’s position is nothing more than an attempt to usurp the plain language of Florida’s No-Fault law.

A decade ago, 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, 151-52 (Fla. 2013) [38 Fla. L. Weekly S517a] (citing ch. 2007-324, §20, Laws of Fla.). The amendment which provides for the limiting of reimbursements based upon the objective Medicare fee schedules addressed the often pivotal question in PIP disputes, i.e. “what constitutes a reasonable expense.” Id. at 155. This Court agrees with Infinity’s position that the Florida Legislature’s enactment of the fee schedules as a method of reimbursement set a definite “objective source” by which reimbursements in PIP would be made in order to eliminate disputes as to reimbursement amounts. This “objective source” ensuring certainty is the Medicare fee schedule, as set forth in Florida’s No-Fault law.²

Section 627.736(5)2., Florida Statutes (2013) provides:

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 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 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 schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.

(Emphasis added).

This Court has taken judicial notice of both: 1) the amount that is actually paid by Medicare under the Physician Fee Schedule as published and promulgated at http://www.cms.gov/PhysicianFeeSched/; and 2) the Historical Medicare Payment Files, also promulgated and maintained by the CMS, which demonstrate the “allowable amount” in effect at the relevant time, i.e., March 1, 2013.

The allowable amount for CPT Code 98940 under the fee schedule was $25.53. Infinity’s policy and the PIP statue allow for 200% of the fee schedule, in this case $51.06 ($25.53 MPFS x 200%). Infinity paid $40.85 (80% of $51.06). In addition, the allowable amount for CPT Code 98941 under the fee schedule was $35.81. Infinity’s policy and the PIP statue allow for 200% of the fee schedule, in this case $71.62 ($35.81 MPFS x 200%). Infinity paid $57.30 (80% of $74.64). Because Infinity paid the precise amount required by the PIP statute and its Policy — 80% of the allowable amount — and utilized the participating physicians fee schedule of Medicare Part B in effect at the time the subject services were provided to determine the allowable amount.Allowable Amount

In support of Plaintiff’s position, it argues that Infinity allowed less than the minimum amount permitted by the No-Fault statute and caselaw. Given that the fee schedule provides, as Plaintiff would posit, the lowest amount payable under the PIP statute, the argument is that when applying the fee schedule, a PIP insurer may not pay an amount Medicare would pay a Medicare recipient for services rendered by a Medicare service provider. Rather, Plaintiff maintains, Infinity must strictly pay under the participating physician’s fee schedule. At the summary judgment hearing, Infinity was full agreement that it was to pay pursuant to the fee schedule — the fee schedule as made available to the public by the CMS, as specifically required by the PIP Statute for CPT Codes 98940, 98941, and 98942. The “allowable amount” under Medicare Part B is the participating physician fee schedule of Medicare Part B. See Advanced Diagnostics Testing (Will Turcios) v. Allstate, 888 So. 2d 666 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2342c]. Adopting Plaintiff’s position would require reimbursement of an amount that is different than the fee schedule.Infinity’s Payment FollowedThe Plain Language of the PIP Statute.

As the Florida Supreme Court declared: “Where the wording of the law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language. . . .” Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So. 2d 328, 334 (Fla. 2007) [32 Fla. L. Weekly S453a] (citations omitted). As with any statute, “[t]he plain meaning of the statutory language is the first consideration.” St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982).

Section 627.726 (5)1.f. provides:

f. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(l) The participating physicians fee schedule of Medicare Part B,. . . .

A schedule is, by definition, a list. See, e.g., Black’s Law Dictionary 1546 (10th ed. 2014); Webster’s New Collegiate Dictionary 1110 (11th ed. 2003); Barco v. School Bd. of Pinellas County, 975 So. 2d 1116, 1122 (Fla. 2008) [33 Fla. L. Weekly S87b] (reference to the dictionary is appropriate to determine ordinary meanings). The CMS website explains that “[a] fee schedule is a complete listing of fees used by Medicare to pay doctors or other providers/suppliers.”³ There is no question that the Medicare Payment Files used to determine the payment limitation at issue here were “a fee schedule.” Nor is there any question that said fee schedule was the Medicare “participating physicians fee schedule.” Therefore, use of the Medicare Payment Files would appear on its face to be a reasonable interpretation and application of Section 627.726 (5)1.f.

The question then is whether there is any other reasonable interpretation of the language of Section 627.726 (5)1.f. Plaintiff argues that instead of applying the Medicare “participating physicians fee schedule” reflected in the Medicare Payment Files, Infinity should have applied the Relative Value Units, geographic adjustments, and “conversion factors” published by Medicare. As previously stated, Plaintiff argues that Infinity should have used the Relative Value Units, geographic adjustments, and “conversion factors” in a formula to calculate a payment amount.⁴

However, section 627.726 (5)1.f. does not refer to Relative Value Units⁵, geographic adjustments, or “conversion factors.” These items are not fee schedules. Thus, on its face, Plaintiff is not contending for “[t]he plain meaning of the statutory language at issue.” There is no indication that the Florida legislature intended “participating physicians fee schedule of Medicare Part B” to mean Relative Value Units, geographic adjustments and “conversion factors.” Moreover, finding that each CPT Code at issue here would be subject to attack for alleged incorrect reimbursement due to anything extrinsic to the fee schedule itself, would be contrary to the legislative intent and render the contracted for policy provision meaningless.

Florida Courts have consistently refused to interpret Florida PIP law to allow deviation of reimbursement under the physician fee schedule, unless specifically provided for in the PIP Statute, with anything extrinsic to the fee schedule itself, rejecting attempts to interpret “participating physicians fee schedule of Medicare Part B” to mean something other than the plain meaning of those words. Whether the deviation proposed results in a reduction or an increase to the fee schedule amount — the analysis is the same — no deviation from the fee schedule is supported by the PIP Statute.

In Nationwide Mutual Fire Insurance Company v. AFO Imaging, 71 So. 3d 134 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b], the court addressed whether an insurer can further limit the participating physicians schedule of Medicare Part B by applying Medicare’s Hospital Outpatient Prospective Payment System (“OPPS”), “an additional, limiting schedule.” Id. at 137. “This additional schedule, under federal law, was to be utilized in calculating authorized Medicare payments for the technical component of certain imaging services — it acted as a limitation on the amounts that federal law would allow for certain services provided to Medicare recipients.” Id.

The argument presented by the insurer and reasoning of the court is paramount to this Court’s analysis. AFO Imaging provides:

The Insurance Companies asserted, and continue to argue, that this additional fee schedule was part of “the participating physicians schedule of Medicare Part B” referred to by the Florida Legislature in subsections (5)(a)(2)(f) and (5)(a)(3). They argue that the statutory phrase “the allowable amount,” which immediately preceded the phrase “participating physicians schedule of Medicare Part B,” should be interpreted to mean the amount that actually would have been allowed under the Medicare program.

We reject their argument. Subsections (5)(a)(2)(f) and (5)(a)(3) unambiguously refer to the participating physicians schedule of Medicare Part B as the schedule upon which to rely. The OPD fee schedule amount payable by Medicare under OPPS is a distinct and separate component of Medicare Part B. As recently stated by the federal district court in All Family Clinic, “[t]he OPPS schedule is an entirely separate component of the Medicare B program from the participating physicians schedule.” 685 F.Supp.2d at 1301 (citing Amgen, Inc. v. Smith, 357 F.3d 103, 106 (D.C.Cir. 2004), as a general reference to explain the interplay between OPPS and Medicare Part B). The inclusion of the phrase “the allowable amount” in subsections (5)(a)(2)(f) and (5)(a)(3) does not alter the plain meaning of these subsections when that phrase is read in context with the remainder of these PIP provisions. This court would have to ignore the phrase “under the participating physicians schedule,” in order to read these subsections in the manner suggested by the Insurance Companies.

(Empahsis added). Id. at 137-38.

Plaintiff is espousing the insurance company’s rejected argument in AFO Imaging. Plaintiff would have the insurance company apply a calculation extrinsic to the promulgated participating physicians schedule of Medicare Part B and force the insurer to add an amount to the participating physicians schedule of Medicare Part B. The Florida PIP Statute clearly and “unambiguously refers to the participating physicians schedule of Medicare Part B as the schedule upon which to rely.” Nothing in the plain language of the PIP statute even remotely suggesting that Infinity must research information about Relative Value Units, geographic adjustments and “conversion factors” and then perform its own calculations to determine an amount to pay, while disregarding the actual amount determined and published by CMS as the “participating physician’s fee schedule.” No calculation is necessary, appropriate, or lawful. See also All Family Clinic of Daytona Beach, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1297 (S.D. Fla. 2010) [22 Fla. L. Weekly Fed. D352a], aff’d, 448 Fed. Appx. 906 (11th Cir. 2011)(insurer argued that “participating physicians fee schedule of Medicare Part B” should be construed to incorporate OPPS, because the OPPS limitations were required to be used instead of the “participating physicians fee schedule” limitations if they were lower; court applied the plain meaning rule of statutory construction to hold that Florida legislature expressly chose the “participating physicians fee schedule” and that language could not be construed to mean the OPPS schedule, which was a separate component of Medicare Part B, rejecting the insurer’s argument that would have to make a separate calculation to compare with the “participating physicians fee schedule” to determine which to pay).

In SOCC v. State Farm Mutual Automobile Insurance Company, 95 So. 3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a], the Fifth District Court of Appeal addressed whether the insurer could apply the National Correct Coding Initiative (NCCI) to limit payments. The court phrased the pertinent issue as “whether the NCCI edits are incorporated into the Florida No-Fault Statute.” Id. at 905. In that case, the provider maintained that the court must “interpret the statute as only adopting the participating physicians schedule and not adopting all of the Medicare Rules and Regulations.” Id. at 907. The court recognized that NCCI is “a separate schedule from the participating physicians schedule:”

The statute permits limiting reimbursement to participating physicians schedule of Medicare Part B. Nowhere in the amended PIP statute does the legislature permit the use of any other schedule, government or otherwise, which Medicare considers in further limiting its claims. . .The administering of Medicare and its handling of claims may not be superimposed on Florida’s No Fault law, in absence of statutory language to that effect. . .

In essence, PIP claims are not be adjusted as if they were Medicare claims. To hold otherwise would be to render the language “under the participating fee schedule superfluous. “As one court noted, ‘The Florida legislature specifically employed the definite article ‘the allowable amount’ rather than ‘a’ or ‘any’ allowable amount. The most sensible reading of the phrase ‘the allowable amount’ suggests that the [L]egislature intended for a specific Medicare schedule to be incorporated into the PIP statute, rather than either, any, or all of the schedules.’

(Emphasis added). Id. at 908.

Florida law, therefore, supports Infinity’s reimbursement for CPT Codes 98940, 98941, and 98942 at the promulgated amount of the participating physicians fee schedule of Medicare Part B, as made available at the CMS website and historical files by the Federal Government. It is unreasonable to maintain that the Legislature’s inclusion of an objective source in the PIP statute to calculate a payment reimbursement, in this instance, would require analysis or consideration of any matters outside of that objective source or require the general public to engage in intellectual gymnastics with data relied upon by the CMS to arrive at the fee schedule. Once a Federal government entity promulgates an objective schedule, price index, interest percentage, or the like, individuals and corporate entities are entitled to rely upon said objective source, without consideration to any other factor. Removing any dispute as to the reasonableness of the reimbursement is the very purpose of the enactment of fee schedules, and, consequently, strict reliance upon the objective participating physicians fee schedule of Medicare Part B is the statutory mandate under Florida law. Accordingly, this Court need not go beyond the statutory requirement that Infinity was obligated to reimburse the allowable amount under the participating fee schedule of Medicare Part B in effect of March 1st of 2013. See Wasserman Chiropractic, Inc. (a/a/o Gerald Robins) v. Auto Club South Ins. Co., Case No. 15-008352(70) (Fla. Cty. Ct. Broward Nov. 6, 2017) [25 Fla. L. Weekly Supp. 837b]. The propriety of the reimbursements herein are highlighted by the cited cases and the holdings that Florida courts will: 1) enforce the strict language of the PIP statute, which does not afford any extrinsic analysis that would undermine the mandate of reimbursement pursuant to the participating physicians fee schedule of Medicare Part B; and 2) strike down any attempt to superimpose a requirement that alters the reimbursement or imposes an obligation not contained in the PIP statute, which renders language of the statute superfluous. To follow Plaintiff’s direction would lead to the absurd result that an insurer in Florida cannot rely upon the official participating physicians fee schedule of Medicare Part B, in contravention of the plain language of the PIP Statute.

Recently, the Federal District Court, in Plantation Spinal Care v. Direct General Insurance Company, issued an order, relied upon by the Plaintiff in support of its position for this Court to adopt the argument that PIP insurers are required to calculate reimbursements pursuant to the previously-detailed formula for CPT Codes 98940, 98941, and 98942. Respectfully, this Court is not persuaded. Initially, Plantation Spinal does not address the specific language of the applicable Florida Statute. Moreover, the Federal Court characterizes the payment of claims at issue upon reliance on the Medicare Physician Fee Schedule or the CMS Payment files as underpayment of chiropractic claims, incorrectly stating that “The Mediare Physician Fee Schedule (“PFS”) does not include the two percent (2%) reduction for CPT codes 98940, 98941, or 98942.” Clearly, the reimbursements promulgated by the Federal Government’s agency in both the CMS website and the Historical Files both include the 2 percent reduction. Plaintiff’s position that no one can rely on the Federal Government’s promulgated fee schedule and PIP insurers are required to deviate from the fee schedule and add an amount thereto, in contravention of Florida law.

CMS’ own description of the implementation of the 2 percent reduction further confirms that the published payment amount is the “participating physicians fee schedule” amount.

In the CY 2006, 2007, and 2008 PFS final rules with comment period (70 FR 70266, 71 FR 69707, 72 FR 66325, respectively), we included a discussion of the strategy that would be used to assess BN [budget neutrality] and the method for adjusting chiropractor fees in the event the demonstration results in costs higher than those that would occur in the absence of the demonstration. We stated BN would be assessed by determining the change in costs based on a pre-post comparison of Medicare costs for beneficiaries in the demonstration and their counterparts in the control groups and the rate of change for specific diagnoses that are treated by chiropractors and physicians in the demonstration sites and control sites. We also stated that our analysis would not be limited to only review of chiropractor claims because the costs of the expanded chiropractor services may have an impact on other Medicare costs. If the demonstration was not budget neutral, we anticipated making reductions in the CY 2010 and CY 2011 physician fee schedules.

* * *

. . . Users of chiropractic services are most likely to have been affected by the expanded coverage provided by this demonstration. Cost increases and offsets, such as reductions in hospitalizations or other types of ambulatory care, are more likely to be observed in this group. Therefore, as proposed, we are adjusting the Medicare PFS [physician fee schedule] for all chiropractors using the estimate provided in the “Chiropractic User Analysis.” . . . . Because the costs of this demonstration were higher than expected and we did not anticipate a reduction to the PFS of greater than 2 percent per year, we are finalizing our proposal (74 FR 33639 through 33640) to recoup the $50 million in expenditures from this demonstration over a 5-year period rather than over a 2-year period. As proposed, we are recouping $10 million each year through adjustments to the PFS [physician fee schedule] for chiropractic codes in calendar years 2010 through 2014. . . . Under this final rule, we are recouping costs by reducing payment under the PFS for chiropractic fee codes by $10 million each year starting CY 2010 through CY 2014 . . . . [W]e are refining the language in this final rule to indicate that the chiropractic fee codes will be reduced by approximately 2 percent for CYs 2010 through 2014. . . . [A]s was proposed (74 FR 33640), 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 [budget neutrality] 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 FR 61738-01, 2009 WL 4047861, *61926-27 (Nov. 25, 2009). Therefore, “[t]he 2 percent reduction is an explicit part of the formula set by CMS to determine the “ ‘fee schedule payment amount.’ ” Wasserman Chiropractic, Inc., a/a/o Gerald Robins. As the highlighted language shows, CMS, pursuant to its statutory authorization to conduct the demonstration but ensure budget neutrality, recouped the cost of that demonstration by changes to the physician fee schedule itself. Accordingly, the language of the PIP statute and the language of the CMS final rule make clear that the amounts paid by Infinity, based on the PFS price shown in the payment file published by CMS that reflected the 2 percent reduction, were the proper amounts under the PIP Statute and the insurance policy.

Plaintiff ignores the foregoing language from the CMS rule, and rely on the following language from the same rule:

Consistent with the proposed rule, for this final rule with comment period, we are reflecting this reduction only in the payment files used by the Medicare contractors to process Medicare claims rather than through adjusting the RVUs. Avoiding an adjustment to the RVUs would preserve the integrity of the PFS, particularly since many private payers also base payment on the RVUs. The RVUs published in Addendum B and posted on our Web site will not show this reduction but will be annotated to state that the reduction resulting from the chiropractic demonstration is not reflected in the RVUs.

Id. at *61927. Plaintiff points to the language noting that CMS did not adjust the RVUs “particularly since many private payers also base payment on the RVUs.”⁶ However, this language has no application to Infinity’s use of the “participating physicians fee schedule” limitations authorized by the PIP Statute. Infinity is not a “private payer” basing payments on the RVUs. Infinity is an auto insurer providing mandatory PIP benefits pursuant to the Florida statutory scheme. CMS’ decision not to change the RVUs is irrelevant under the PIP Statute, which does not refer to RVUs or other components or calculations for these CPT Codes, but only to the physician fee schedule itself. See Ocoee Chiropractic and Injury Clinic, a/a/o Kimberly Williams v. Progressive Select Ins. Co., Case No. 2016-SC-002804-O (9th Jud. Cir. County Ct., Orange Cty., Fla., Jan. 7, 2018) (insurer properly relied on “participating physicians fee schedule” based in the Medicare published payment files was proper because PIP insurer “is not a private payer basing payments on the RVUs”). And, in fact, this language relied on by Plaintiff is consistent with CMS’ numerous statements acknowledging that it was implementing “this [2 percent] reduction only in the payment files.”

Implementing the plain language meaning of “participating physicians fee schedule” in the PIP Statute is wholly consistent with the policies and purposes of that statute. The PIP Statute is an integral part of the Florida No-Fault scheme. Geico Gen. Ins. Co. v. Virtual Imaging Servs. Inc., 141 So. 3d 147, 152 (Fla. 2013) [38 Fla. L. Weekly S517a]; see also Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388, 393 (Fla. 2013) [38 Fla. L. Weekly S440a] (quoting Holy Cross Hosp., 961 So. 2d at 332); Flores v. Allstate Ins. Co., 819 So. 2d 740, 744 (Fla. 2002) [27 Fla. L. Weekly S499a]; Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-84 (Fla. 2000) [25 Fla. L. Weekly S1103a]. “Without a doubt, the purpose of the no-fault statutory scheme is to ‘provide swift and virtually automatic payment so that the injured insured may get on with his [or her] life without undue financial interruption.’ ” Virtual Imaging, 141 So. 3d at 152 (quoting Ivey, 774 So. 2d at 683-84). Using the applicable “participating physicians fee schedule” payment amounts, which are an easily ascertainable individual payment amounts, available and maintained by CMS, is far more consistent with the PIP Statute’s goal of “swift and virtually automatic payment” than Plaintiff’s multi-step procedure of separately calculating different fee schedule amounts by formula.

Of final note, the Florida Legislature’s intent to create certainty in its determination of the Medicare fee schedule, not only specified a specific date, but mandated a specific fee schedule “notwithstanding any subsequent changes made to the fee schedule or payment limitations.” The Florida Legislature was aware that the Federal Government calculates different amounts periodically that affect reimbursement levels for the CPT codes, and explicitly pinpointed a fee schedule and prohibited any deviation thereof by changes made to the chosen fee schedule. This Court will not adopt any argument which contravenes the Florida Legislature’s directive.

CONCLUSION

For the foregoing reasons, this Court hereby GRANTS Infinity’s Motion for Final Summary Judgment.

__________________

¹Under Section 90.202, Florida Statutes, the Court may take judicial notice of material set forth in government publications, including material set forth on websites. Nationwide Mut. Ins. Co. v. Darragh, 95 So. 3d 897, 900 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1355a]. See, e.g., Jones v. Prof. Fin. Co., 2017 WL 6033547, *2 (S.D. Fla. Dec. 4, 2017) (Dimitrouleas, J.); United States ex rel. Fox RX, Inc. v. Omnicare, Inc., 38 F. Supp. 3d 398, 405-06 & n.6 (S.D.N.Y. 2014) (taking judicial notice of statements made on CMS website); Abdus-Sabur v. Hope Village, Inc., 221 F. Supp. 3d 3, 9-10 & n.3 (D.D.C. 2016) (taking judicial notice of Department of Health and Human Services manual explaining Medicare coverage and government healthcare website).

²This Court recognizes the complexity in analyzing Medicare coding issues, and, therefore, specifically limits the instant order to CPT Codes 98940, 98941, and 98942, which are the only codes at issue sub judice.

³https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/FeeScheduleGenInfo/index.html.

⁴Plaintiff specifically proposes that Infinity employ the following formula to calculate the payment limitation amount: [(RVU Work x GPCI Work) + (RVU PE x GPCI PE) + (RVU MP x GPCI MP)] x Conversion Factor. GPCI refers to Geographic Pricing Cost Index. PE refers to practice expense. MP refers to malpractice. These are values which Medicare determines, and then uses as part of its determination of the “participating physicians fee schedule” reflected in the Medicare Payment Files. 62 FR 211, pp. 59048, 59050-51 (Oct. 31, 1997); 74 FR 226 p. 61743 (Nov. 25, 2009); 75 FR 228 p. 73181 (Nov. 29, 2010); 76 FR 228 p. 73035 (Nov. 28, 2011); 77 FR 222, p. 68897 (Nov. 16, 2012); 78 FR 237 p. 74234 (Dec. 10, 2013).

⁵Relative Value Units (RVU) rank the various resources used to provide a medical service on a common scale. See  1.

For each service, Medicare determines RVUs for three types of resources.

Physician work RVUs account for the time, technical skill and effort, mental effort and judgment, and stress to provide a service. Practice expense RVUs account for the nonphysician clinical and nonclinical labor of the practice, as well as expenses for building space, equipment, and office supplies. Professional liability insurance RVUs account for the cost of malpractice insurance premiums.

Id. (The National Health Policy Forum (NHPF) provides information regarding federal health policy. See .) “RVUs can be used for everything from helping to determine compensation in a multi-physician practice to deciding whether to take a buyout offer from a hospital system.” See http://medicaleconomics.modernmedicine.com/medical-economics/content/tags/calculating-relative-value-units/rvus-valuable-tool-aiding-practice-m?page=full.

⁶And, as noted above, RVUs can be used for a myriad of purposes beyond calculating fee schedule amounts such as determining compensation rates or valuing practices for purchase transactions. Thus, electing not to reflect the 2 percent reduction in the RVUs is entirely consistent with limiting its impact to the “participating physicians fee schedule.”