26 Fla. L. Weekly Supp. 129a
Online Reference: FLWSUPP 2602TRINInsurance — Personal injury protection — Coverage — Medical expenses — Multiple Procedure Payment Reduction is payment methodology whose use is allowed by section 627.736(5)(a)3, not utilization limit prohibited by that statute — PIP policy that provides that insurer will apply MPPR when determining amount payable under Medicare fee schedule clearly and unambiguously provided notice of insurer’s intent to rely upon MPPR in calculating reimbursement
SOUTH FLORIDA INSTITUTE OF WELLNESS & REHAB, LLC., a/a/o Jennifer Trinidad, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2015-009135 SP-25 (01), Civil Division. March 13, 2017. Jason Emilios Dimitris, Judge. Counsel: Theodore A. Swaebe and Sidney Goldberg, Miami, for Plaintiff. Diane Cullinan and Erick D. Martin, Progressive PIP House Counsel, Medley, for Defendant.
AFFIRMED. FLWSUPP 2705TRINORDER GRANTING DEFENDANT’SFINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on February 28, 2017, pursuant to Defendant’s Motion for Final Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment, and the Court having reviewed the record evidence, pleadings, and motions, and having considered argument of Counsel and legal authority submitted by the parties, and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On or about February 23, 2015, the insured, Jennifer Trinidad, was involved in an automobile accident and allegedly sustained injuries. As a result of those alleged injuries, JENNIFER TRINIDAD, sought treatment with Plaintiff, SOUTH FLORIDA INSTITUTE OF WELLNESS & REHAB, for dates of service March 6, 2015 to April 21, 2015. JENNIFER TRINIDAD, executed an assignment of benefits, assigning to Plaintiff her rights to PIP benefits under the policy of insurance with Defendant. At the time of the motor-vehicle accident, JENNIFER TRINIDAD, was covered under an insurance policy with the Defendant.
2. Defendant received bills for treatment from Plaintiff, SOUTH FLORIDA INSTITUTE OF WELLNESS & REHAB, for dates of service March 6, 2015 to April 21, 2015. Defendant reduced the charges pursuant to F.S. § 627.736 (5) (a) (1-5) and the policy of insurance. The amount Progressive paid Plaintiff was based upon 80% of 200% of the Medicare Part B fee schedule for the region in which the services were rendered. The amounts allowed reflected a reduction of the practice expense component for selected therapy services. Certain codes billed by Plaintiff were identified by the Defendant as secondary procedure codes subject to the Medicare Multiple Procedure Payment Reduction (“MPPR”) rule. A MPPR reduction was applied to those secondary codes. If the allowed amount for the secondary procedure code was less than 200% of the amount set forth in the 2007 Participating Level of Medicare Part B fee schedule, the Defendant paid the Plaintiff the higher 2007 Participating Level of Medicare Part B fee schedule amount.
3. Plaintiff filed a Complaint for Breach of Contract against Defendant alleging that Defendant failed to pay all amounts owed for PIP benefits.
4. Defendant filed its Motion for Final Summary Judgment and Incorporated Memorandum of Law alleging that it properly reimbursed Plaintiff at 80% of 200% of the schedule of maximum charges after applying the Multiple Procedure Payment Reduction (“MPPR”) rule, which was clearly and unambiguously elected in the policy and that no further payment is due or owing. Plaintiff filed its Cross Motion for Summary Judgment, arguing that Defendant cannot reimburse in this manner because the Multiple Procedure Payment Reduction Rule is a Utilization Limit.
ANALYSIS AND CONCLUSIONS OF LAW
The Florida Statutes
In 2012, the Florida Legislature amended FS §627.736. The 2012 changes made a distinct change to the previous statute’s reimbursement obligations and entitlements. Section 627.736 (5)(a)(3), Florida Statutes (2012) has been amended as follows:
“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. An insurer that applies the allowable payment limitations 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 procedure codes. 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 (Emphasis added).”
It is “axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. See also State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) [27 Fla. L. Weekly S860a]. (“[T]he Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”).
The new version of F.S. §627.736(5)(a)(3) includes a distinct change from the old version of the statute, as F.S. §627.736(5)(a)(3) now specifically indicates that payment methodologies under Medicare Part B can be applied by insurers when issuing reimbursement to providers under PIP, provided that the payment methodology is not a utilization limit.
Multiple Procedure Payment Reduction
As argued by the Defendant, the Multiple Procedure Payment Reduction (“MPPR”) rule is a payment methodology of the federal Centers for Medicare and Medicaid Services (“CMS”) which reduces the practice expense component of reimbursement pursuant to the Medicare Part B fee schedule for secondary procedure codes of selected “always therapy” codes performed on the same patient on the same day by a provider regardless of the session or discipline. The MPPR rule identifies the primary procedure code (the code with the highest practice expense) and secondary procedure codes (codes with lower practice expenses) performed on the same patient on the same day and reduces the practice expense for the secondary codes in order to more appropriately value the secondary codes when calculating reimbursement under the Medicare Part B fee schedule. As noted in the title, MPPR only affects payment not services or treatment. Furthermore, it is the Defendant’s position that Section 1848(c)(2)(k) of the Social Security Act is an extension of the fee schedule. This section was developed to identify misvalued codes under the fee schedule which led to the implementation of MPPR.
Plaintiff argued that MPPR is a utilization limit because a medical provider may not want to provide treatment if it knows it will be paid less. The Plaintiff relies on an excerpt from the Federal Register to further their position. This Court rejects Plaintiff’s argument. First and foremost, there is no record evidence in this case supporting Plaintiff’s position. Under Plaintiff’s theory, the schedule of maximum charges itself would be a utilization limit, which would completely contradict the two most recent versions of the PIP statute and in essence render the statutory language useless. Furthermore, according to the Rules and Regulations contained in the Federal Register. Vol. 75, page 73241 (Nov. 29, 2010), “Paying more appropriately for therapy services in CY 2011 will allow patients to receive more medically necessary therapy services before reaching the therapy cap.”
Just as in Medicare claims, Progressive argued that reducing the reimbursement for medical services means that the insured has less of a co-payment and would allow the patient to receive more treatment. It in no way limits the patient’s right to receive services. If anything, it results in the patient being able to receive more therapy services. It does not limit the number of treatments or put a cap on the therapy services.
The Court is also persuaded by the decisions in SOCC, PL, a/a/o Youssef Assal v. Progressive American Ins. Co., No. 15-CC-015856 (Fla. 13th Cir. Ct. Apr. 18, 2016) [24 Fla. L. Weekly Supp. 165a] (Medical provider’s argument that MPPR is a utilization limit simply because it limits reimbursement would mean that any cost containment measure would result in a reduction of remuneration for the medical provider and as a result would have an influence on the manner and method of treatment.); Path Medical-Boward a/a/o Shanti Bryant v. Progressive Select Ins. Co., No. CONO15005212 (Fla. 17th Cir. Ct. Jun. 15, 2016) [24 Fla. L. Weekly Supp. 894a] (MPPR is a payment methodology and not a utilization limit); Multicare Rehabilitation, LLC a/a/o Robert Rego v. Progressive Select Ins. Co., No. COCE14022054 (Fla. 17th Cir. Ct. Jan. 14, 2016) [24 Fla. L. Weekly Supp. 171a] (MPPR is a payment methodology and not a utilization limit, otherwise, the language added by the legislature would be meaningless); AFO Imaging, Inc, a/a/o Asha Brown v. State Farm Mutual Auto. Ins. Co., No. 14-0888 (Fla. 13th Cir. Ct. Mar. 15, 2016) [24 Fla. L. Weekly Supp. 165b] (“MPPR does not limit the use or duration of services and does not prevent the insured from accessing any procedure. Rather it simply reduces payment based on the efficiencies achieved from furnishing multiple procedures in a single session on a single day.”); and Millennium Radiology, LLC a/a/o Angela Renteria v. State Farm Fire & Cas. Ins. Co., FLWSUPP 2304RENT (Fla. 11th Cir. Ct. Aug. 11, 2015) [23 Fla. L. Weekly Supp. 360a] (MPPR was a payment methodology).
Based on the record evidence and all materials filed by the parties which are admissible as competent summary judgment evidence, the Court finds that MPPR is a payment methodology and not a utilization limit. Therefore, this Court finds that F.S. §627.736 allows Defendant to rely on MPPR in reimbursing Plaintiff in this Case.
The Policy of Insurance
It was undisputed at the hearing and the Court agreed that the Defendant’s policy of insurance provides adequate notice that the Defendant may rely on MPPR when calculating reimbursement. The pertinent Policy language is as follows:
UNREASONABLE OR UNNECESSARY MEDICAL BENEFITS
If an insured person incurs medical benefits that we deem to be 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 627.736 (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. . . .
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. 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). (Emphasis added)
The Court finds that the Progressive policy is clear and concise. There is no ambiguity. The Court finds that Defendant’s policy clearly and unambiguously provided adequate notice to allow Defendant to rely on MPPR when reimbursing medical providers.
On January 26, 2017, the Supreme Court quashed the decision of the Fourth DCA and held, “Allstate’s insurance policy provides legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2 to limit reimbursements. Allstate Insurance Company v. Orthopedic Specialists, etc., 42 Fla. L. Weekly S38a (Fla. 2017).
Furthermore, Defendant argues that the new version of the statute no longer requires an election of the fee schedule, but merely requires that insurers provide notice that they will pay at the Medicare Fee Schedule. See F.S. §627.736(5)(a)(5)(2013). The Court finds that the Progressive Insurance Policy in the instant case clearly and unambiguously provided notice that Defendant would pay no more than 80% of the Medicare Part B fee schedule, and thus Defendant automatically may apply the MPPR payment methodology. See F.S. §627.736(5)(a)(1)-F.S. §627.736(5)(a)(5).
Finally, the Court finds that the Plaintiff failed to present to the Court any admissible evidence that the Defendant did not pay Plaintiff in full pursuant to the statute and policy. The Court finds that Defendant properly paid Plaintiff at the 2007 Participating Physician’s Fee Schedule for certain codes where that rate was higher than the 2015 Participating Physician’s Fee Schedule with MPPR and the Defendant, PROGRESSIVE SELECT INSURANCE COMPANY is entitled to Final Summary Judgment as a matter of law.
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment be, and the same is hereby GRANTED and Plaintiff’s Motion for Cross Summary Judgment is hereby DENIED. Plaintiff shall take nothing by this action. FINAL SUMMARY JUDGMENT IS HEREBY ENTERED IN FAVOR OF THE DEFENDANT AND IT 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.
