26 Fla. L. Weekly Supp. 1001a

Online Reference: FLWSUPP 2612CLARInsurance — 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

PATH MEDICAL LLC, a/a/o Deborah Clark, Plaintiff(s), v. ALLSTATE INDEMNITY COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17013145, Division 54. February 4, 2019. Florence Barner, Judge. Counsel: Bruce Rosenberg, Rosenberg Law, PA., Boca Raton; and Jason Goldman, Davis Goldman, PLLC, Miami, for Plaintiff. Rachel LaMontagne and Manuel Negron, Shutts & Bowen LLP, Miami, for Defendant.

ORDER GRANTING SUMMARY JUDGMENTAND FINAL JUDGMENT IN FAVOR OF DEFENDANT

THIS MATTER came before the Court, January 28, 2019, on the Plaintiff, PATH MEDICAL, LLC a/a/o Deborah Clark’s, Motion for Final Summary Judgment and/or Motion for Summary Disposition as to Relatedness, Medical Necessity, and Reasonableness of Charges, and Threshold Issues and Defendant, ALLSTATE INDEMNITY COMPANY’s (“Allstate”), Motion for Summary Judgment and Supporting Memorandum of Law. Plaintiff was represented by Bruce Rosenberg, Esq. of Rosenberg Law, P.A. Defendant was represented by Rachel LaMontagne, Esq. and Manuel Negron, 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

The subject insurance policy issued by Allstate to its insured provides notice of Allstate’s intent to utilize the fee schedules contained in the Florida No-Fault Statute. The policy contains the same language the Florida Supreme Court, in Allstate Ins. Co. v. Orthopedic Specialists (Kelli Serridge), 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], found sufficient to provide notice of an insurer’s intent to utilize the statutory reimbursement limitations set forth in section 627.736(5)(a) of the No-Fault Statute. Allstate paid the Plaintiff’s charges pursuant to the applicable fee schedules.

Plaintiff provided in-office electrical stimulation (“E-stim”) treatment to Allstate’s insured for injuries sustained in a covered automobile accident. The service of in-office E-stim requires the use of electrodes. Allstate reimbursed Plaintiff for the covered, in-office E-stim billed under procedure Code G0283. Allstate did not reimburse Plaintiff for the separate charge for electrodes billed under Code A4556 for date of service October 10, 2016. There is no dispute the electrodes at issue were used to perform the in-office service of E-stim.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). In sum, 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)1.f. (2015).

In 2008, the Florida Legislature amended Florida Statute 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. Subsection (5)(a)1.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. (Emphasis supplied).

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 the charge for A4556.

In its motion, Plaintiff argues it is entitled to final summary judgment because the treatment rendered was medically necessary, related to the subject accident and the charges are reasonable, usual and customary and in accordance with community standards; and therefore, the electrodes are reimbursable. In support of its motion, Plaintiff relies upon the affidavit of Neil Bonnardel, D.C. Dr. Bonnardel’s affidavit does not address compensability of the electrodes, but rather, only states the charges are reasonable, proper and in line with charges in the community. Further, the affidavit was conclusory, self-serving and failed to set forth the facts and rationale upon which Dr. Bonnardel’s opinions were based. The Court cannot consider such conclusory statements. See Heitmeyer v. Sasser, 664 So. 2d 358, 369-360 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a]; Verchick v. Hecht Investments, Ltd., 924 So. 2d 944, 947 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D977a] (finding legally insufficient affidavits that were conclusory and lacking specific details on disputed issues); West Edge II v. Kunderas, 910 So. 2d 953, 954-55 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2269b] (improper for affidavit to include pure opinion). Significantly, this Court disagrees with Plaintiff’s position because it disregards the enactment of fee schedules, rewrites the parties’ policy, which specifically allows the insurer to utilize fee schedules, and reverts 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). Notably, Plaintiff came forward with no evidence or argument to dispute Defendant’s affirmative defense regarding the compensability of A4556 under subsection (5)(a)(1). Ultimately, this Court finds the separate billing of A4556 in this case is not reasonable, as it is incident to the in-office service of E-stim, 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)(2).[¹] Section 627.736(5)(a)(1), Florida Statutes (2015), 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:

(I) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).

(II) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.[²]

(III) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.

However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, 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. Defendant 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. Plaintiff presented no evidence to the contrary. In fact, Plaintiff’s supporting affidavit acknowledges the subject electrodes were “incident to” the electrical stimulation in this case. See Affidavit of Dr. Neil Bonnardel filed in support of Plaintiff’s Motion for Summary Judgment at para. 14 (“These supplies are necessary to render electrical muscle stimulation which was prescribed to the patient”). Thus, the billing of A4556 is inappropriate under the Medicare Part B Physician Fee Schedule.

Next, the Court must consider compensability of A4556 under the Durable Medical Equipment Prosthetics/Orthotics and Supplies (“DMEPOS”) fee schedule of Medicare Part B. 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 — DurableMedicalEquipment (DME) available at https://www.cms.gov/Regulations?and?Guidance/Guidance/Manuals/downloads/clm104c20.pdf. In this instance, Allstate concedes that if electrodes are prescribed and used in conjunction with doctor-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 TENS unit for use in the home, with which the patient could have utilized the electrodes. There is no dispute that the electrodes in this case were used in conjunction with the in-office physician service of E-stim. 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 the Florida’s Workers’ Compensation Fee Schedule. 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 (2015 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.

Chapter 2 Medical Services, states in pertinent part:

Reimbursable Materials and Supplies

Reimbursement for supplies and materials not incidental to a service or a procedure shall be reimbursed using the specific HCPCS Level II Supply codes.

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Supplies and Materials Not Separately Reimbursable

Material and supplies which are necessary to perform a procedure or provide a service shall be included in the reimbursement for the procedure or service and shall not be reimbursed separately.

Florida Workers’ Compensation Health Care Provider Reimbursement Manual (2015) at p. 41 (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. The Florida Workers’ Compensation Fee Schedule 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 solely relies upon reasonableness of the charge as compared to usual and customary charges in the community. This Court disagrees that an insurer can be judicially forced to reimburse for a service or supply, regardless of an expert’s testimony that said service or supply is compensable, 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.

Plaintiff’s attempt to circumvent Florida’s No-Fault law and the 2008 and subsequent 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 Motion for Summary Judgment is GRANTED and Plaintiff’s Motion for Final Summary Judgment and/or Motion for Summary Disposition as to Relatedness, Medical Necessity, and Reasonableness of Charges, and Threshold Issues 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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¹The No-Fault Statue was subsequently amended and the relevant provision, formerly subsection (5)(a)2. is now numbered as subsection (5)(a)1.

²There is no dispute subsection (5)(a)1.f.(II) is inapplicable here.