26 Fla. L. Weekly Supp. 840a
Online Reference: FLWSUPP 2610WILLInsurance — Personal injury protection — Coverage — Medical expenses — Amount paid by insurer for CPT Code 98941 on dates of service at issue for services falling under locality “99,” or “Rest of Florida,” was calculated in accordance with controlling statute and policy language
OCOEE CHIROPRACTIC AND INJURY CLINIC a/a/o Kimberly Williams, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2016-SC-002804-O. January 7, 2019. Martha C. Adams, Judge. Counsel: Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Eric Biernacki, Andrews Biernacki Davis, Orlando, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDED MOTONFOR PARTIAL SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This CAUSE having come before this Court on December 5, 2017, on Defendant’s Amended Motion for Partial Summary Judgment and Plaintiff’s Motion for Summary Judgment and Memorandum of Law as to Whether Defendant Improperly Limited Reimbursement of Plaintiff’s Medical Bills by Applying a 2% Reduction to CPT Code 98941, and the Court having reviewed the evidence, all of the supporting documentation and case law filed by the parties, heard the arguments of counsel, and being otherwise fully advised in the premises, finds as follows:
FINDINGS OF FACT
1. Plaintiff filed a Personal Injury Protection suit, as assignee of Kimberly Williams, against Defendant for medical bills for treatment rendered to Kimberly Williams, as a result of injuries she allegedly sustained in an automobile accident that occurred on July 10, 2014.
2. At the time of the accident, Kimberly Williams was covered under an automobile insurance policy issued by Defendant that provided personal injury protection benefits in accordance with the Florida Motor Vehicle No-Fault Law.
3. Following the accident, Kimberly Williams sought chiropractic treatment with Plaintiff on dates of service July 17, 2014 through October 30, 2014.
4. Plaintiff billed $82.96 for CPT Code 98941 on dates of service September 8, 2014 through October 30, 2014. Defendant allowed $81.30 for said CPT Code on said dates of service, which was calculated pursuant to Florida Statute §§627.736(5)(a)(1)(f) and 627.736(5)(a)(2), and the subject policy. Defendant then paid 80% of the allowed amount for CPT Code 98941 for each date of service, pursuant to the subject policy.
5. Defendant filed an Amended Motion for Partial Summary Judgment, and affidavit in support of same, on November 13, 2017, contending that Defendant reimbursed Plaintiff the proper fee schedule amount for CPT Code 98941 on the dates of service at issue. Specifically, Defendant’s position is that it properly limited reimbursement for CPT Code 98941 to 80% of 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B in effect on March 1, 2014 for the region in which services were rendered ($40.65 x 200% = $81.30 x 80%= $65.04).
6. Plaintiff filed its Motion for Summary Judgment and Memorandum of Law as to Whether Defendant Improperly Limited Reimbursement of Plaintiff’s Medical Bills by Applying a 2% Reduction to CPT Code 98941 on June 13, 2017, arguing that Defendant improperly reimbursed Plaintiff for CPT Code 98941. Specifically, Plaintiff contends that Defendant allowed less than 200% of the allowable amount under the participating physicians’ fee schedule of Medicare Part B for CPT Code 98941. Plaintiff alleges that $41.48 is the participating physician fee schedule rate. Thus, Plaintiff’s calculation is as follows: $41.48 x 200% = $82.96 x 80% = $66.37.
7. For purposes of this summary judgment hearing, Plaintiff does not dispute Defendant’s fee schedule election language in its policy. In other words, the parties agree that Defendant is entitled to limit reimbursement based on the schedule of maximum charges contained in Florida Statute §627.736(5)(a)(1). The parties also agree that the area in which services were rendered in this case fall under locality “99” or “Rest of Florida”. Thus, the sole issue before this Court on the parties’ competing motions for summary judgment is whether Defendant properly reimbursed Plaintiff for CPT Code 98941 for the 2014 dates of service at issue.
LEGAL ANALYSIS
The issue before the Court concerns the interpretation of §§627.736(5)(a)(1)(f) and (2), Florida Statutes (2014), which provide the following:
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1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
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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. . . .
2. 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 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].
9. The policy at issue mirrors said language and states that, pursuant to Florida Law, Progressive will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges:
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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. . . .
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. [Emphasis added].
10. Thus, the applicable fee schedule for CPT Code 98941 for the 2014 dates of service at issue is the participating physicians’ fee schedule of Medicare Part B in effect on March 1, 2014 for locality 99 in Florida, notwithstanding any subsequent changes made to said fee schedule in 2014. The parties agree that Defendant must pay 80% of 200% of the allowable amount under that fee schedule.
11. The Medicare Part B participating physicians fee schedule amount in effect on March 1, 2014 for CPT Code 98941 is found in the January 1, 2014 release of the Annual Physician Fee Schedule Payment Amount File, PFALL14A. See Payment. The Annual Physician Fee Schedule Payment Amount File contains the Medicare Part B participating physician fee schedule payment amounts for services covered by the Medicare Physician Fee Schedule (“MPFS”). Id
12. The line in the Annual Physician Fee Schedule Payment Amount File PFALL14A that is applicable to the services at issue in this case is the one that begins with “2014 09102 99 98941 40.65”. Id. 2014 represents the calendar year, 09102 is the carrier number for Florida, 99 represents the Rest of Florida (for purposes of geographic region), 98941 is the CPT Code, and 40.65 is the non-facility fee schedule amount. Id.
13. As stated above, Defendant allowed 200% of $40.65 and reimbursed Plaintiff 80% of that amount ($40.65 x 200% = $81.30 x 80% = $65.04).
14. Plaintiff does not dispute that Defendant allowed 200% of the amount set forth in the Medicare Part B Annual Physician Fee Schedule Payment Amount File in effect for March 1, 2014 for CPT Code 98941. Rather, Plaintiff contends that Defendant improperly limited reimbursement of Plaintiff’s bills because the Medicare Part B physician fee schedule payment amount included a 2% reduction, which the Centers for Medicaid and Medicare Services (“CMS”) applied to chiropractic manipulations from 2010 through 2014.
15. This 2% reduction arose from Section 651 of the Medicare Prescription Drug, Improvement, and Modernization Act (“M MA”) of 2003, Pub. L. 108-173 (2003), which authorized CMS to conduct a two-year demonstration to evaluate the feasibility and advisability of expanding coverage for chiropractic services under Medicare. See 74 Fed. Reg. 226 at 61926-61969 (Nov. 25, 2009). This demonstration cost Medicare $50 million. Id. To recoup this expenditure, CMS implemented a 2% reduction of the fee schedule for CPT Codes 98940, 98941 and 98942 from 2010 through 2014. Id. The money was recouped in the first half of 2014. Id Thus, on July 1, 2014, CMS updated the fee schedule to remove the 2% reduction. See 78 Fed. Reg. 237 at 74234-74791 (Dec. 10, 2013).
16. The Federal Register provides in part:
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.
74 Fed. Reg. 226 at 61927 (Nov. 25, 2009).
17. Plaintiff contends that because the 2% reduction was only reflected in the payment files used by Medicare contractors to process Medicare claims, Defendant could not limit reimbursement based on the fee schedule payment amount.
18. This Court rejects Plaintiff’s argument. There is no dispute that Defendant is not a Medicare provider. However, Plaintiff’s argument completely ignores the fact that the Florida Legislature clearly selected the participating physicians fee schedule of Medicare Part B, pursuant to Florida Statute §627.736(5)(a)(1)(f), as a method for PIP insurers to utilize in determining reimbursement, despite the fact that the fee schedule was created for Medicare providers.
19. Plaintiff further argues that Defendant, as a private payer, should have based its reimbursement for CPT Code 98941 on the RVUs rather than the Medicare Part B physician fee schedule payment amount. As Plaintiff points out, the RVUs are one component of the formula that Medicare uses to calculate the physician fee schedule payment amount. Plaintiff contends that Defendant, as a private payer, should have calculated the formula without a 2% reduction because the 2% reduction was not reflected in the RVU amounts published by CMS. Plaintiff’s argument fails because Defendant is not a private payer basing payments on the RVUs. Rather, Defendant is basing payment on the amount the legislature has permitted for reimbursement of PIP claims, which is the amount that is allowed for participating providers under Medicare Part B. Further, there is no indication that the legislature intended to require an insurer to calculate formulas or reimburse amounts higher than those allowed for a participating provider under Medicare Part B.
20. Nevertheless, even if the RVUs were utilized by Defendant and the formula was calculated, the resulting figure would still be $40.65. While CMS did not reflect the 2% reduction in the 2014 published RVU file, the chiropractic codes in the RVU file were annotated to reflect that an adjustment of .98 would be applied to the formula. See National Fee Schedule Relative Value File Calendar Year 2014. The reason for this is the Annual Physician Fee Schedule Payment Amount Files are the result of said formula, which CMS calculates. See Medicare Claims Processing Manual, Chapters 12 and 23. Thus, whether the Physician Fee Schedule Payment Amount File, PFALL14A, or the formula is utilized, the allowable amount under the participating physicians’ fee schedule of Medicare Part B for CPT Code 98941 on March 1, 2014 for Rest of Florida is $40.65.
21. There is no dispute that the 2% reduction for CPT Code 98941 was included in the amount that CMS allowed for payment for a participating provider under Medicare Part B on March 1, 2014, as reflected in the Medicare Part B Annual Physician Fee Schedule Payment Amount File. Thus, the Court finds that Defendant, by allowing 200% of that amount, properly reimbursed Plaintiff’s bills for CPT Code 98941.
22. As previously referenced above, the July 2014 update to the Medicare physician fee schedule removed the 2% reduction to CPT Codes 98940, 98941 and 98942. Thus, the Medicare Part B participating physicians fee schedule amount for CPT Code 98941 for the Rest of Florida was changed from $40.65 to $41.48 on July 1, 2014. See the July 1, 2014 update to the Annual Physician Fee Schedule Payment Amount File, PFREV14C; found at .
23. Pursuant to Florida Statute §627136(5)(a)(2), and the subject policy, the participating physicians fee schedule of Medicare Part B in effect on March 1 of the year in which the services were rendered applies throughout the remainder of that year, notwithstanding any subsequent changes made to the fee schedule. The July 1, 2014 removal of the 2% reduction was a subsequent change made to the fee schedule and, therefore, is inapplicable.
24. Thus, the Court finds that the allowable amount under the participating physicians’ fee schedule of Medicare Part B in effect on March 1, 2014 for the Rest of Florida for CPT Code 98941 is $40.65. The 2% reduction was part of the allowable amount under this fee schedule. Pursuant to Florida Statute §627.736(5)(a)(1)(f) (2014) and the subject policy, Defendant allowed 200% of that amount and reimbursed Plaintiff 80% of the sum ($40.65 x 2 = $81.30 x 80%= $65.04). Thus, Defendant reimbursed Plaintiff the proper amount of $65.04 for CPT Code 98941.
Accordingly, it is hereby
ORDERED and ADJUDGED that Defendant’s Amended Motion for Partial Summary Judgment is GRANTED; it is further
ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment and Memorandum of Law as to Whether Defendant Improperly Limited Reimbursement of Plaintiff’s Medical Bills by Applying a 2% Reduction to CPT Code 98941 is DENIED.
