26 Fla. L. Weekly Supp. 514c
Online Reference: FLWSUPP 2606KENTInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that it will determine to be unreasonable any charges that exceed maximum charges set forth in No-Fault Law and will pay no more than 80% of 200% of Medicare Part B fee schedule clearly and unambiguously elects to limit reimbursement to statutory fee schedules — PIP statute permits use of Multiple Procedure Payment Reduction in calculating reimbursement, and policy at issue provides sufficient notice of intent to use MPPR
PAMELA KENT, an Insured Individual by and through his/her Assignee, CHIROPRACTIC CENTER OF LAKELAND SOUTH, INC. d/b/a LOVE CHIROPRACTIC, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 17-CC-012202 (I), Civil Division. June 26, 2018. Joelle A. Ober, Judge. Counsel: Philip A. Friedman and James Collins, FL Legal Group, Tampa, for Plaintiff. Coleman P. Hengesbach, Progressive House Counsel, Tampa, for Defendant.ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on May 17, 2018, for consideration on Defendant’s Motion for Final Summary Judgment and Memorandum of Law (certificate of service September 22, 2017), and the Court having reviewed all record evidence, pleadings, and motions, having considered argument of Counsel and legal authority submitted by the parties, and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On or about September 10, 2014, Pamela Kent was involved in an automobile accident and allegedly sustained injuries therein. At the time of the accident, Pamela Kent was insured under a policy of insurance issued by Progressive Select Insurance Company (“Progressive”). The applicable policy form was Progressive’s 9610D policy with A085 FL (05/12) endorsement, which provided for $10,000.00 in Personal Injury Protection (“PIP”) coverage.
2. Following the accident, Pamela Kent presented to Plaintiff, Chiropractic Center of Lakeland South, Inc. d/b/a Love Chiropractic (hereinafter “Love Chiropractic” or “Plaintiff”), for treatment on dates of service January 13, 2015 through June 3, 2015. Plaintiff submitted medical bills to Progressive, seeking PIP benefits for the treatment rendered to Pamela Kent.
3. Progressive received said medical bills from Plaintiff, and paid the charges pursuant to Florida Statutes §627.736(5)(a)(1-5) and the applicable policy of insurance. In determining the amount due and owing, Progressive utilized the applicable Medicare Fee schedule rate for the services provided and also applied the Multiple Procedure Payment Reduction (“MPPR”) payment methodology, when applicable, as provided by the Center for Medicare and Medicaid Services, the Florida Motor Vehicle No-Fault Law, and the applicable policy of insurance. If the allowed amount fell below the 2007 Participating Level of Medicare Part B, Progressive paid Plaintiff at the higher 2007 Medicare Part B fee schedule amount.
4. Plaintiff filed a Complaint for breach of contract against Progressive, alleging that Progressive failed to pay all amounts owed for PIP benefits for the bills at issue.
5. Defendant filed its Motion for Final Summary Judgment and Memorandum of Law, alleging that the applicable policy of insurance clearly and unambiguously provided notice to its insured that it will rely on the schedule of maximum charges, and that Progressive properly reimbursed Plaintiff at the schedule of maximum charges, including the use of MPPR.
6. As set out more extensively below, based on the record admissible evidence and all materials filed by the parties as summary judgment evidence, the Court finds that Progressive properly limited reimbursement to the schedule of maximum charges as set forth in Florida Statutes §627.736(5)(a)(1-5), inclusive of the use of MPPR, and has issued payments accordingly. As such, Plaintiff has been paid in full according to the applicable policy of insurance and Defendant is entitled to the entry of final summary judgment as a matter of law.
ANALYSIS AND CONCLUSIONS OF LAW
A.
PROGRESSIVE’S ENDORSEMENT A085 FL (05/12) CLEARLY AND UNAMBIGUOUSLY PROVIDES NOTICE OF PROGRESSIVE’S LIMITATION OF REIMBURSEMENT TO THE SCHEDULE OF MAXIMUM CHARGES, AS SET FORTH IN FLORIDA STATUES §627.736(5)(a)(1-5).
This Court finds that Progressive has clearly and unambiguously provided notice in its policy of insurance of its intent to limit reimbursement to the statutory schedule of maximum charges, as set forth in Florida Statutes §627.736(5)(a)(1-5). This Court finds that Progressive’s policy complies with the notice requirement set forth in Florida Statutes §627.736(5)(a)(5) and reiterated by the Supreme Court in Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].
Progressive’s A085 FL (05/12) specifically notified the insured:
UNREASONABLE OR UNNECESSARY MEDICAL BENEFITS
If an insured person incurs medical benefits that we deem unreasonable or unnecessary, we may refuse to pay for those medical benefits and contest them.
We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in Section 627.336(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 proved. 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 medical services, supplies and care subject to Medicare Part B.
This Court finds that Progressive’s policy is clear and unambiguous. Progressive’s policy goes above the “simple notice” requirement set forth in Orthopedic Specialists. Progressive’s policy specifically provides notice that reimbursement will be made at the fee schedules referenced in Florida Statutes §627.736(5)(a)(1)(a through f). Further, the policy places the insured on notice that if the payment amount falls below the applicable 2007 Medicare Fee Schedule rate, Progressive will reimburse at the higher 2007 rate.
Plaintiff’s argument that Progressive’s policy is ambiguous because it presents a hybrid payment methodology, fails as a matter of law. The Supreme Court in Orthopedic Specialists specifically stated that “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 expense coverage mandate.” Id. at 977. Additionally, “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.” Id.
In addition, subsequent to the hearing on the parties’ Motions, the Court was made aware of the decision issued on May 18, 2018, by the Second District Court of Appeal in the case of State Farm Mutual Automobile Insurance Company v. MRI Associates of Tampa, Inc., d/b/a Park Place MRI, Case No. 2D16-4036 (Fla. 2d DCA May 18, 2018) [43 Fla. L. Weekly D1149a] (pending final order). In that decision, the Second District Court of Appeal rejected the provider’s argument that a policy which includes reference to both reimbursement methods constitutes an impermissable hybrid method. “Based on the current construction of the PIP statute, we conclude that there are no longer two mutually exclusive methodologies for calculating the reimbursment payment owed by the insurer.” Id.
The Court finds that Progressive’s policy language at issue specifically satisfies the “simple notice” required to limit reimbursement to the statutory schedule of maximum charges and properly elects to limit reimbursement pursuant to the schedule of maximum charges provided in Florida Statutes section 627.736(5)(a)(1). See Suncoast Chiropractic and Neurological Diagnostic Center a/a/o Heather Manuel (Hillsborough County Case no. 16-CC-003995) citing State Farm Mut. Auto. Ins. Co. v. MRI Assoc. of Tampa, Inc., d/b/a Park Place MRI, __ So. 3d __, 2 2018 WL 2271147 (Fla. 2d DCA May 18, 2018) [43 Fla. L. Weekly D1149a].
B.
PROGRESSIVE’S ENDORSEMENT A085 FL (05/12) CLEARLY AND UNAMBIGUOUSLY PROVIDES NOTICE OF PROGRESSIVE’S INTENT TO APPLY THE MEDICARE PAYMENT METHODOLOGY, MPPR
Florida Statutes §627.736(5)(a)(3) provides, in the pertinent part:
An insurer that applies the allowable payment limitation 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 codes. However, subparagraph 1. does not prohibit an insurer from using the Medicare coding polices 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.
The Court finds that Florida Statutes §627.736(5)(a)(3), taken as a whole, permits the use of Medicare coding policies and payment methodologies, including MPPR, in calculating the appropriate amount of reimbursement. See Suncoast Chiropractic and Neurological Diagnostic Center a/a/o Heather Manuel (Hillsborough County Case no. 16-CC-003995). Progressive has not refused to reimburse for the services provided, but rather has permissibly used a Medicare payment methodology to determine the appropriate amount of reimbursement.
Lastly, the Court finds that Progressive’s A085 FL (05/12) endorsement provides sufficient notice of Progressive’s intention to use Medicare coding policies and payment methodologies, which includes MPPR, in determining reimbursement amounts, as permitted under §627.736(5)(a)(3). The A085 FL (05/12) endorsement mimics the language of §627.736(5)(a)(3), and goes beyond the statutory language, specifically enumerating Progressive’s intent to use MPPR. The endorsement provides:
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 pursuant to Florida Statutes §627.736(5)(a)(3), MPPR is a permissible payment methodology which may be used by Progressive in determining the appropriate amount of reimbursement as it is not a utilization limit, and as Progressive’s policy of insurance provided sufficient notice of Progressive’s intent to use such a payment methodology in reimbursement determinations.
Based on the foregoing, it is ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment and Memorandum of Law be, and the same is hereby GRANTED. FINAL SUMMARY JUDGMENT IS HEREBY ENTERED IN FAVOR OF THE DEFENDANT. PLAINTIFF SHALL TAKE NOTHING BY THIS ACTION AND 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.
