27 Fla. L. Weekly Supp. 205a

Online Reference: FLWSUPP 2702HOLBInsurance — Personal injury protection — Coverage — Medical expenses — Multiple Procedure Payment Reductions — PIP insurer may apply MPPR when reimbursing chiropractor for physical therapy services — No merit to argument that therapy services not rendered pursuant to therapy plan of care required by Medicare must be reimbursed at full fee schedule amount without application of MPPR — Insurer properly reimbursed code that is considered to be noncompensable bundled code by Medicare pursuant to workers’ compensation fee schedule

CARE MEDICAL CENTERS INC. a/a/o Eddison Holbert, Plaintiff(s), Petitioner(s) v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant(s) / Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17004013, Division 56. April 11, 2019. Betsy Benson, Judge. Counsel: Victor Demesmin and Jeremy Dover, Law Offices of Anidjar & Levine, P.A., for Plaintiff. Brian S. Goldstein and Jessica W. Pfeffer, Progressive PIP House Counsel, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT, DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT ANDFINAL JUDGMENT FOR DEFENDANT

THIS CAUSE having come before the Court on April 3, 2019, for hearing of Defendant’s Motion for Final Summary Judgment and Plaintiffs Motion for Summary Judgment, based on the pleadings, motions, and record evidence, and having considered the arguments of Counsel, this Court hereby denies Plaintiff’s Motion for Summary Judgment, grants Defendant’s Motion for Final Summary Judgment, enters Final Judgment for Defendant, and finds as follows:

1. Progressive properly paid the subject claim for PIP benefits pursuant to the subject policy of insurance, including the use of the Multiple Procedure Payment Reduction (MPPR). The Plaintiff concedes MPPR is not a utilization limit and has stipulated to Progressive’s ability to pay pursuant to the fee schedule and MPPR, but argues that it may not do so in this case.

2. The sole issue in this case is whether Progressive can apply MPPR to bills submitted by a chiropractor, as were the bills in this case. Plaintiff argued that Medicare does not reimburse Chiropractors for non-chiropractic services, and therefore would not apply MPPR to chiropractors. Plaintiff contends that it should be paid at the fee schedule amount without MPPR. The Court rejects Plaintiff’s argument, as PIP is not Medicare, and although Medicare does not even pay chiropractors for the subject services, an insurer must pay these services under PIP, and in doing so may use payment methodologies. This is based on the plain language of Fla. Stat. §627.736(5)(a)(3) Plaintiff’s argument that chiropractors should somehow be paid more money than other providers for services that Medicare would not even pay them for leads to an absurd result. Progressive may use the payment methodologies of the CMS when reimbursing providers, “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” so long as they do not constitute a utilization limit. Plaintiff concedes that MPPR is not a utilization limit.

A. MPPR Applies to Chiropractors Under PIP

Defendant agrees that chiropractors may only be reimbursed for chiropractic services [three (3) CPT Codes] when billing Medicare directly, with all other codes being denied as noncompensable. Under Medicare, the allowable codes for a chiropractor are 98940, 98941, and 98942, which represent various chiropractic adjustments. A chiropractor may not bill for physical therapy services directly to Medicare. Medicare deems chiropractors unqualified to perform and receive reimbursement for physical therapy services. However, pursuant to the plain language of the Florida No-Fault Law, a PIP insurer must pay these codes, and when doing so, may apply CMS payment limitations, because in PIP, reimbursement follows the service, not the provider’s license specialty. This is based on the plain language of the statute:

Florida Statutes, §627.736(5)(a)3 (2014) (emphasis added) states:

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.

Under the Plaintiff’s theory, if Progressive were to implement CMS rules and regulations identical to Medicare, rather than as permitted under the Florida No Fault Law, chiropractors would not be entitled to any compensation for therapy services. However, the plain language of the statute provides that an insurer may not deny the bills submitted solely due to the type or discipline of the provider submitting the same. If the services are compensable to a physical therapist under Medicare, Progressive must pay the services and may apply CMS coding and payment methodologies, such as MPPR. For second and subsequent always therapy services, as in this case, MPPR applies. Defendant’s position is further supported by the following:

CPT Codes 97012, 97016, 97018, 97022, 97032, 97033, 97034, 97035, 97110, 97113, 97116, 97140, 97530, 97533, 97535, 97537, 97542, and HCPCS Code G0283. CMS considers all 19 codes as “always therapy” which means they are always considered to be furnished under a physical therapy (PT), occupational therapy (OT), or speech-language pathology (SLP) plan of care regardless of who furnishes them. . . . These “always therapy” codes are also subject to the therapy MPPR.

(emphasis added)

See page 53073, Federal Register Vol. 82 No. 219/November 15, 2017.

Plaintiff further contends that Medicare requires therapy services to be rendered pursuant to a Therapy Plan of Care. Plaintiff’s argument follows that since Medicare doesn’t authorize a chiropractor to certify a Therapy Plan of Care it should be reimbursed at the full fee schedule amount without MPPR. This is a Red Herring. The Court disagrees and finds that unlike Medicare, a Therapy Plan of Care is irrelevant to PIP and is not required based on the plan language of Fla. Stat. §627.736(5)(a)(3). In fact, this is a circular argument as a “plan of care” determines whether a provider gets paid for physical therapy services generally, not whether MPPR is applied. It has already been established that chiropractors do not get paid for physical therapy under Medicare, but PIP insurers must pay for these services. So, if the service is paid, MPPR applies. Additionally, a therapy plan of care is simply a treatment plan. It includes a diagnosis and a course of treatment. It is not something that somehow invalidates MPPR. All Medical providers have standards for providing treatment, otherwise they would be committing malpractice. So, if the treatment in this case is valid treatment, there was some plan of care. Medicare would not recognize a chiropractor’s plan of care, but an insurer must in PIP. Again, either the provider is compensated for these services under PIP, or they are not. If they are compensated for the services, then Medicare payment methodologies may be applied. The Court finds Defendant properly applied MPPR to therapy codes billed by a chiropractor.

B. MPPR was Properly Applied by Progressive. CPT Code 97010 Was Properly Paid at the Worker’s Compensation Rate

It is undisputed that MPPR is not applicable to contractor-priced codes, bundled codes, and add-on codes. Medicare has published the following regarding MPPR in the Federal Register:

“This policy does not apply to add-on, bundled, or contractor priced “always therapy” codes. It does, however, apply to all “always therapy” services furnished on a single date of service by the same provider to a single patient including “always therapy services” furnished in different sessions or in different therapy disciplines.

See pages 73241, 73242, Federal Register Vol. 75 No. 219/Monday, November 29, 2010.

CPT Code 97010 is considered a bundled code¹ under Medicare and therefore pursuant to Medicare rules is not compensable. However, in the context of PIP, CPT code 97010 is not a bundled code as it is separately payable in this case. Progressive reimbursed Code 97010 pursuant to the Workers’ Compensation Fee Schedule as required by Fla. Stat. §627.736(5)(a)(1)(f). Additionally, MPPR was not applied to the bundled code (97010) nor the primary code it was billed in combination with. This Court need not address contractor priced, nor add-on codes as they are not present in this case.

This Honorable Court finds that Defendant properly applied MPPR consistent with Medicare and pursuant to its obligations under Fla. Stat. §627.736(5)(a)3.

Finally, the Court finds Defendant properly paid Plaintiff at the 2007 Participating Physician Fee Schedule, as that rate was higher than the Participating Physician’s Fee Schedule with MPPR for the year in which the services were rendered.

IT IS THEREFORE

ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment against Defendant is DENIED, and Defendant’s Motion for Final Summary Judgment against the Plaintiff, is hereby GRANTED. Plaintiff shall take nothing by this action. FINAL JUDGMENT IS HEREBY ENTERED IN FAVOR OF THE DEFENDANT AND IT SHALL GO HENCE FORTH WITHOUT DAY. The Court reserves jurisdiction to determine entitlement and amount of attorney’s fees and costs to the Defendant, upon a timely motion.

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¹A “bundled” code under Medicare is not separately payable/valued under Medicare and is considered to be bundled/encompassed within another service.