26 Fla. L. Weekly Supp. 871a

Online Reference: FLWSUPP 2611SANCInsurance — Personal injury protection — Coverage — Medical expenses — Policy clearly and unambiguously elected use of Medicare coding policies and payment methodologies, including applicable modifiers such as Multiple Procedure Payment Reduction methodology, even without specific mention of “MPPR” — Policy properly complied with statutory notice provision — MPPR is permissible payment methodology, not improper utilization limit — Trial court erred in granting summary judgment in favor of provider

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. MILLENNIUM RADIOLOGY, LLC d/b/a MOBILE IMAGING OF AMERICA (a/a/o Jorge Sanchez), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-494 AP. L.T. Case No. 14-3281 SP 23 (3). January 9, 2019. On Appeal from the County Court in and for Miami-Dade County, Florida, Linda Singer Stein, Judge. Counsel: DeeAnn J. McLemore, Banker Lopez Gassler, P.A., for Appellant. Yigal D. Kahana, Law Offices of Yigal D. Kahana; and Robert J. Hauser, Pankauski Hauser, PLLC, for Appellee.

[Lower court order at 25 Fla. L. Weekly Supp. 558a.]

(Before TINKLER MENDEZ, HIRSCH, and MILIAN, JJ.)

(TINKLER MENDEZ, Judge.) This is an appeal of the trial court’s final summary judgment entered in favor of Appellee, Millennium Radiology, LLC, d/b/a Mobile Imaging of America, (“Provider”) as the assignee of Jorge Sanchez (“Insured”), in a suit to collect Personal Injury Protection (“PIP”) benefits against Appellant, State Farm Mutual Automobile Insurance Company (“Insurer”).

On or about September 1, 2013, Insured was involved in an automobile accident. On or about September 18, 2013, two MRI scans (of the lumbar and cervical spine) were performed by Provider, to whom Insured assigned his right to PIP benefits. Insurer reimbursed the claim by applying Medicare’s MPPR calculation to 200% of the fee schedule amount for the services. The Multiple Procedure Payment Reduction (“MPPR”), is described as a payment methodology used by the Medicare program to reduce payment for medical services when two or more services have been rendered on the same day, to the same patient, by the same physician, in the same session. Such a reduction is arguably justified because performing all services in one session reduces time, labor, and general costs associated with performing multiple procedures over multiple days.

On March 3, 2014, Provider filed suit against Insurer alleging violation of Florida’s Motor Vehicle No-Fault Law and failure to pay PIP benefits for the unpaid amount. On March 3, 2016, Provider filed its “Updated Motion for Summary Judgment” on the issues of medical necessity, relatedness and Insurer’s use of the “Multiple Procedure Payment Reduction” (“MPPR”) method of reimbursement for services provided. In support of its motion for summary judgment, the Provider contended that Insurer was obligated by its policy to reimburse pursuant to the 2007 Medicare Part B Participating Physician’s Fee Schedule amounts for the services at issue. The Provider argues that the application of the MPPR calculation was an improper reduction of benefits that violated the Insurance policy and the PIP statute.

On March 10, 2016 (and later amended on June 14, 2016), Insurer filed a cross-motion for summary judgment with regard to the MPPR reimbursement methodology, arguing that the insurance policy and the PIP statute explicitly allow the Insurer to limit reimbursement pursuant to the Medicare fee schedule and Medicare’s coding policies and payment methodologies. The Insurer argued that it was permitted to use the Medicare coding policies and payment methodologies of the federal centers for Medicare and Medicaid Services, including applicable modifiers such as MPPR, to determine the appropriate amount of reimbursement for medical services pursuant to the 2007 Medicare Part B fee schedule. Insurer further argued that the terms of their policy with the Insured are unambiguous and must be applied as written.

After the summary judgment hearings, the trial court granted the Provider’s motion for summary judgment. The trial court entered judgment for the unpaid benefits plus interest. In its order, the trial court held that Insurer’s policy did not clearly and unambiguously elect the use of the MPPR calculation and did not permit Insurer to limit its payment to the Provider to less than 80% of a multiplication of 200% of the amount listed on the 2007 Medicare Part B Physician’s fee schedule for the services provided. This appeal follows.

The standard of review applicable to summary judgment is de novo, and requires the appellate court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. To analyze summary judgment properly, the appellate court must determine: (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000) [25 Fla. L. Weekly S390a]. “Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.” Id. at 130.

When a court is interpreting an insurance policy as well as provisions of the Florida Motor Vehicle No-Fault Law, particularly the PIP statute, the standard of review is de novo. Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So. 3d 169 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1619c]. The construction of an insurance policy is a question of law for the court. Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). Such contracts are interpreted in accordance with the plain language of the policy. State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566 (Fla. 2011) [36 Fla. L. Weekly S469a]. Any ambiguities are liberally construed in favor of the insured and strictly against the Insurer as the drafter of the policy. Chandler v. Geico Indemnity Co., 78 So. 3d 1293, 1300 (Fla. 2011) [36 Fla. L. Weekly S660a]. “When ‘interpreting an insurance contract,’ [the court] is ‘bound by the plain meaning of the contract’s text.” GEICO Gen. Ins. Co. v. Virtual Imaging Servs., 141 So. 3d 147, 157 (Fla. 2013) [38 Fla. L. Weekly S517a] (citing State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569 (Fla. 2011) [36 Fla. L. Weekly S469a]). “ ‘If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as written.’ ” Id.

Insurer makes three main arguments in favor of reversing the lower court’s Final Summary Judgment decision rendered in favor of Provider. First, the State Farm 9810A Policy clearly and unambiguously elects the use of Medicare coding policies and payment methodologies, which includes applicable modifiers such as the use of MPPR. Second, the Office of Insurance Regulation (“OIR”) approved the Policy, therefore, State Farm satisfied the notice requirement of the PIP statute. Third, MPPR is a permissible payment methodology and not an improper “utilization limit.”

Here, there is no dispute that the operative PIP Statute expressly permits the use of Medicare payment methodologies and/or coding policies. Section 627.736(5)(a)(3), Fla. Stat. (2012) and (July 1, 2013-June 30, 2015), state in pertinent part 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.

Id. (Emphasis added).

There is also no dispute that the Policy clearly and unambiguously elects the use of Medicare coding policies and payment methodologies, including applicable modifiers such as the use of MPPR. The subject State Farm Policy states the following:

Insuring Agreement

We will pay in accordance with the No-Fault Act properly billed and documented reasonable charges for bodily injury to an insured caused by an accident resulting from the ownership, maintenance, or use of a motor vehicle as follows:

1. Medical Expenses

We will pay 80% of properly billed and documented medical expenses. . .

***

Limits

1. We will not pay any claims that the No-Fault Act does not require us to pay, or the amount of any charge that exceeds the amount the No-Fault Act allows to be charged.

2. . . . We wilnimit payment of Medical Expenses described in the Insuring Agreement of the policy’s No-Fault Coverage to 80% of a properly billed and documented reasonable charge, but in no event will we pay more than 80% of the following No-Fault Act “schedule of maximum charges” including the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers:

(Emphasis added).

Currently, there is no case law that is binding on this Court regarding the particular application of the MPPR to PIP claims where State Farm’s policy does not specifically mention the term “MPPR.” However, when a similar challenge was made regarding an Allstate policy, the Florida Supreme Court found that the Allstate policy was clear and unambiguous in its election of the Medicare fee schedule, even though the policy did not specifically mention the term “Medicare” when it elected to utilize the Medicare fee schedule in the payment of claims. Allstate Fire and Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 188 So. 3d 1 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]; Allstate Idem. Co. v. Markley Chiropractic & Acupuncture, LLC, 226 So. 3d 262, 266 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D793b] (Virtual Imaging requires no “magic words”); Fla. Wellness & Rehab. v. Allstate Fire & Cas. Inc. Co., 201 So. 3d 169 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1619c]; and, Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]. If settled case law does not require an insurer to specify “Medicare” in electing and notifying its insured of the use of the Medicare fee schedule, then it is presumably not required to specify the use of the term “MPPR” in notifying the insured of the use of this particular Medicare payment methodology. Thus, should we follow the reasoning of the Florida Supreme Court above, the policy language at issue in the instant case would be considered sufficient notice of the use of the method of reimbursement even without specific mention of the term “MPPR” as one of the Medicare payment methodologies that it is permitted to use.

Furthermore, State Farm’s Policy, which references “the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers,” tracts the language of the 2012 statutory amendment, which states “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.”

This Circuit Appellate Court finds that the No-Fault statute explicitly permits State Farm to utilize the Medicare coding policies and payment methodologies including the MPPR as a payment reduction. We find that the policy need not specifically mention the MPPR payment reduction calculation for the insurance company to use this particular payment methodology. Thus, we find that State Farm’s Policy gave adequate notice of such payment reduction.¹

This Court is in agreement with the decision in Millennium Radiology, LLC v. State Farm and Casualty Company, 23 Fla. L. Weekly Supp. 360a (Fla. 11th Jud. Cir. Cnty. Crt. Aug. 11, 2015), finding that “State Farm has properly incorporated the necessary notice to be compliant with the binding authority and recent amendment to the Statute.” Id. We are also in agreement with the decision in State Farm Mutual Insurance Co. v. Pan Am Diagnostic Services Inc., d/b/a Wide Open MRI a/a/o Maxime Jean Louis, 26 Fla. L. Weekly Supp. 466b (Fla. 11th Jud. Cir. Crt. September 5, 2018), finding that “State Farm’s Form 9810A PIP policy properly complies with the notice provision of section 627.736(5)(a)5, Florida Statutes (2013).” Id.

In the instant case, the trial court did not make a finding with regard to the issue of whether the use of the MPPR is a permissible payment methodology verses an improper utilization limit. These terms are not defined by the PIP statute, and were not the subject of the trial court’s order below. However, the Thirteenth Judicial Circuit case of SOCC, PL., a/a/o Youssef Assal v. Progressive Am. Ins. Co., 24 Fla. L. Weekly Supp. 163b (Fla. 13th Jud. Cir. Cnty. Ct. Apr. 18, 2016), held that the MPPR is not per se a limitation prohibited by the PIP Statute. “It is not a utilization limit simply because it limits reimbursements.” Id. See also Path Med. Broward a/a/o Shanti’ Bryant v. Progressive Select Insurance Company, 24 Fla. L. Weekly Supp. 894a (Fla. 17th Jud. Cir. Cnty. Ct. June 15, 2016). A limit on utilization means a limitation on the use or duration of a particular service or item. Interventional Spine Center, 23 Fla. L. Weekly Supp. 610a (Fla. 11th Jud. Cir. Cnty. Ct. Oct. 7, 2015). We find that MPPR does not limit the uses, duration, or the number of procedures a provider may perform on a patient or that a patient may access.

Moreover, the Office of Insurance Regulation (“OIR”) approved the subject Policy. While the decision of the OIR is subject to judicial review, we find no reason to determine that the OIR approval is invalid.

In summary, we find that State Farm’s 9810A Policy clearly and unambiguously elects the use of Medicare coding policies and payment methodologies, which includes applicable modifiers such as the MPPR. As such, this Appellate Court finds that the trial court erred in granting Provider’s motion for summary judgment. Accordingly, this case is hereby REVERSED and REMANDED to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED FOR THE TRIAL COURT TO CONDUCT PROCEEDINGS CONSISTENT WITH THIS OPINION; APPELLANT’S MOTION FOR APPELLATE ATTORNEY FEES CONDITIONALLY GRANTED; APPELLEE’S MOTION FOR SAME DENIED. (HIRSCH and MILIAN JJ., concur.)

__________________

¹See also Millennium Radiology, LLC a/a/o Angela Renteria v. State Farm Fire and Casualty Company, 23 Fla. L. Weekly Supp. 360a (Fla. 11th Jud. Cir. Cnty. Ct. Jul. 1, 2015) (State Farm was permitted to use MPPR to determine allowable amount under Medicare Part B schedule); Interventional Spine Ctr., LLC, a/a/o Pascal Fils-Aime v. Progressive Am. Ins. Co., 23 Fla. L. Weekly Supp. 610a (Fla. 11th Jud. Cir. Cnty. Ct. Oct. 7, 2015) (MPPR provides an allowable amount under Medicare Part B schedule); AFO Imaging, Inc., a/a/o Asha Brown v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 165b (Fla. 13th Jud. Cir. Cnty. Ct. Mar. 15, 2016) (2012 version of the No-Fault Statute explicitly permits an insurer to consider Medicare coding policies); Plantation Open MRI, LLC v. State Farm Mutual Automobile Insurance Company, 25 Fla. L. Weekly Supp. 831a (Fla. 17th Jud. Cir. Cnty. Ct. Nov. 3, 2017) (State Farm 9810A Insurance Policy permitted it to reimburse below the 2007 Medicare Part B Fee schedule through the application of MPPR.)