26 Fla. L. Weekly Supp. 331a
Online Reference: FLWSUPP 2604ALONInsurance — Personal injury protection — Coverage — Medical expenses — Application of Multiple Procedure Payment Reduction — Insurer’s motion for final summary judgment determining that it paid proper amount in benefits by paying 200% of Medicare fee schedule with application of MPPR is denied — MPPR is form of utilization limit, insurer does not apply MPPR consistently and does not apply other Medicare payment modifiers that would result in higher benefit payments, and PIP statute supports medical provider’s argument that insurer may be sued up to ceiling of full 200% of Medicare fee schedule
PATH MEDICAL-PINES, a/a/o Evelyn Alonso, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-023162 COWE 81. March 22, 2018. Jane D. Fishman, Judge. Counsel: Matthew C. Barber, for Plaintiff. Lynn French Davis, for Defendant.
ORDER DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on Defendant’s Motion for Final Summary Judgment the Court having been otherwise fully advised in the premises on February 16, 2018 and by consideration of the records, authorities and evidence, it is hereby,
ORDERED AND ADJUDGED:
1. Defendant’s Motion is DENIED:
FACTS, FINDINGS AND ANALYSIS:
2. Defendant moves for final summary judgment that it paid the proper amount in benefits at 200% of Medicare and/or MPPR. In support, Defendant relied on the affidavit of Christina A. Barrow, the adjuster for Progressive.
3. Defendant argues that the PIP statute permits the insurer to use Medicare coding and payment methods:
However, subparagraph 1. does not prohibit an insurer from using the Medicare coding policies 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.
See F.S. 627.736(5)(a)3.
4. Next Defendant argues that the policy incorporates Medicare coding and payment methodologies, including MPPR:
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 including, but are not limited to coding edits, both mutually exclusive and inclusive, payment limitation, 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).
See page 13 of the policy.1
5. Finally, Defendant argues that the Explanations of Review or Reconsiderations demonstrate proper application of MPPR.
6. Plaintiff argues that (1) MPPR is not permitted to be applied and that there is no evidence that MPPR was applied correctly; (2) that MPPR is not applicable to the therapy/bills in this case; (3) that MPPR is effectively a part of the Medicare utilization limit; (4) that Defendant is not immune from being sued up to the maximum; and, (5) that the policy is insufficient.
7. Plaintiff also argues that the safeharbor fee schedule amount to avoid a lawsuit is 200% of Medicare Participating Physicians Schedule without any extra reduction:
1. The insurer may limit reimbursement to 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:
(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.
(III) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.
F.S. 627.736(5)(a)(1)(f)
8. Plaintiff relied on the affidavit of Dr. Neil Bonnardel, who is a licensed chiropractor and Director of Medical Services and Charges for Path Medical. Notably, Dr. Bonnardel affirms that chiropractic therapy is not covered under Medicare pursuant to Medicare coding and payment methodologies, and that MPPR does not apply to chiropractors. Dr. Bonnardel also explains that Medicare has predetermined practice expenses for each code, which does not correlate to the services billed in this case; Plaintiff places a higher value on therapeutic exercises (97110) than therapeutic neuromuscular reeducation (97112), which is opposite of Medicare. The doctor affidavit also attests that MPPR was created to discourage overutilization by providers, by reducing payment on secondary codes billed on the same day as a primary code.
9. Plaintiff also relies on excerpts of the Federal Register, Vol. 77, No. 222, November 16, 2012 at page 68959, which states:
Although a significant number of Medicare beneficiaries benefits from therapy services, the rapid growth in Medicare expenditures for these services has long been of concern to the Congress, and the Agency. To address this concern, efforts have been focused on developing Medicare payment incentives that encourage delivery of reasonable and necessary care while discouraging overutilization of therapy services and the provision of medically unnecessary care. A brief review of those efforts is useful in understanding our policy[.]
(1) Therapy Caps
Section 4541 of the Balanced Budget Act of 1997 (Pub. 1, 105-33)(BBA) amended section 1883(g) of the Act to impose financial limitations on outpatient therapy services (the “therapy caps” discussed above) in an attempt to limit Medicare expenditures for therapy services. . . Almost from the inception of the therapy caps, Congress and the Agency have been exploring potential alternatives to the therapy caps.
(2) Multiple Procedure Payment Reduction (MPPR)
In the CY 2011 PFS final rule with comment [75 FR 73232-73242), we adopted a MPPR of 25 percent applicable to the practice expense (PE) component of the second and subsequent therapy services finished to a beneficiary when more than one of these services is furnished in a single session. . . Although we do not adopt this MPPR policy specifically as an alternative to therapy caps, paying more appropriately for combinations of therapy services that are commonly furnished in a single session reduces the number of beneficiaries impacted by the therapy caps in given year. [ ]
(3) Studies Performed
The therapy cap is a uniform dollar amount that sets a limit on a total value of services furnished unrelated to specific of services furnished unrelated to the specific services furnished of the beneficiary’s condition or needs. . . Conversely, a uniform cap without exceptions process restricts necessary and appropriate care for certain high complexity beneficiaries. Recognizing, these limitations in a uniform dollar value cap, we have been studying therapy practice patterns and exploring ways to refine payment for these services as an alternative to therapy caps. [ ]
(Emphasis added).
10. To support that MPPR is not a unitization limit, Defendant relied on a Freedom of Information Act request response dated 7/12/17, which states in part that “Likewise the reduced payment is used for calculation of a beneficiary’s therapy cap. The MPPR is not a utilization limit or intended to limit treatment by Medicare.”
11. Although MPPR is not literally a utilization limit in the sense that it does not place a limit on the number or types of treatment provided and paid, evidence and logic show that is still in form a type of utilization limit related to the Medicare therapy cap. In lieu of raising a Medicare therapy cap (from say $2,500 to $5000) to allow more utilization of treatment, MPPR was introduced as way to allow for more utilization of treatment within the already set therapy cap. In other words, MPPR is an alternative to raising the therapy cap and was introduced to effectuate Medicare’s therapy cap without the political and budgetary controversies of increasing the dollar limit therapy cap. You can put lipstick on a pig, but it is still a pig.
12. The PIP statute supports Plaintiff’s position because it assumes that there are other types of “utilization limits that apply under Medicare” besides a therapy cap:
3. Subparagraph 1. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation.
13. Furthermore, the, evidence shows that Progressive does not apply MPPR on each case or claim where MPPR could or should apply. Defendant does NOT apply MPPR consistently. Indeed, to justify totally inconsistent application of MPPR, Defendant at the hearing argued that MPPR is not mandatory but that the insurer is not prohibited from using when applicable. This supports Plaintiff’s position that in order to avoid lawsuit for additional benefits, Defendant must pay the safeharbor of 200% of Medicare Part B participating physicians fee schedule.
14. Indeed, the PIP statute again supports Plaintiff’s position because there is only one ceiling under the “schedule of maximum charges.” The insurer may be sued up to that ceiling; the insurer may think that the lesser amount is reasonable, but it must prove it and must prove that the full 200% of Medicare without extra reduction for this service or therapy is more than reasonable. The policy language supports this position too because it reads: “We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in Section 627.736(5)(a)(2)(a through f)[.]” There is only ONE MAXIMUM in each subparagraph (a), (b), (c), (d), (e), (f). Neither the policy nor the PIP statute creates multiple safeharbor maximums within the same subparagraph.2
15. What also concerns this Court, is that if there are in fact multiple maximums, and if in fact Defendant were allowed to apply MPPR, resulting in a downward payment adjustment, the evidence shows that Medicare also has an upward payment adjustment, which must be applied and would result in more payment to Plaintiff Specifically, Medicare introduced what is known as the Medicare Value-based Payment Modifier (VM) which can result in 2% factored upward adjustment.3 In other words, Defendant seeks only to apply the downward adjustment, without also applying an upward adjustment. Defendant wants to have its cake and eat it too.
16. This Court notes that Defendant’s own CMS FOIA response filed July 24, 2017 states in part:
The MPPR on therapy services applies to separately payable “always therapy” services, i.e. services are paid only by Medicare when furnished under a therapy plan of care. Contractor-priced codes, bundled codes, and a[dd]-on codes are excluded because an MPPR would not be applicable for “always therapy” services furnished in combination with these codes.
Thus, according to CMS, MPPR would NOT be applicable for “always therapy” codes furnished with contractor-priced codes, bundled codes and add-on codes. Notably, Plaintiff in this case billed and rendered 97010, which is considered by Medicare to be a bundled code, along with the always therapy codes, such as G0283, 97035, 97140, 97112, 97110. Therefore, this claim is not subject to MPPR.
17. Because this Court finds that MPPR simply does not make sense here, this Court need not reach the glaringly obvious ambiguity in the policy which refers to F.S. 627.726(5)(a)(2) (a through f) “schedule of maximum charges” in the PIP statute circa 2008 which did NOT allow or permit use of any Medicare coding and payment methodologies4
18. [Editor’s note: Blank on court document.]
CONCLUSION:
19. For any one reason set forth above, arguments at the hearing and review entire Record, Defendant’s Motion is DENIED.
__________________
1This Court notes that Defendant admitted the policy contains a scrivener’s error in that it refers to “We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in Section 627.736(5)(a)(2) (a through f) of the Florida Motor Vehicle No-Fault Law”, which statutory citation refers to the statute in effect for the 2008 amendments, which absolutely did NOT include Medicare coding and payment methodologies. See e.g. SOCC, P.L. v. State Farm Mutual Auto. Ins. Co., 95 So. 3d 903, 908 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a] (finding that an insurer may not apply National Correct Coding Initiative (“NCCI”) edits); Nationwide Mutual Fire Ins. Co. v. AFO Imaging, Inc., 71 So. 3d 134, 135 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b] (finding an insurer may not base payments on Medicare’s Outpatient Prospective Payment System (“OPPS”)).
2If the Legislature had intended to create multiple safeharbor payment maximums, it could have easily done so by stating it.
3The CMS memo says: “The Value Modifier rewards physicians and groups of physicians who provide high quality and cost-effective care, while encouraging improvement for those who do not report quality measures or are determined to have poor performance.” VM can result in an “upward, downward or no payment adjustment based on performance.”
4Notably, Defendant’s own adjusters in deposition agreed that referring to incorrect statutory citation was “confusing” and “erroneous.” The ambiguity would have to be construed against the insurer which drafted the policy according to Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a].
