27 Fla. L. Weekly Supp. 756a
Online Reference: FLWSUPP 2708CINTInsurance — Personal injury protection — Coverage — Medical expenses — Dry hydrotherapy — Where CPT code for dry hydrotherapy treatment is not delineated in physician’s fee schedule for Medicare Part B, treatment was properly reimbursed in accordance with workers’ compensation fee schedule notwithstanding fact that dry hydrotherapy may by reimbursable under Medicare Part B if underlying service performed is examined on an individualized basis
CINTEX URGENT CARE CENTER LLC, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE17013199, Division 82. July 25, 2019. Natasha DePrimo, Judge. Counsel: John S. Leinicke, ROIG Lawyers, Deerfield Beach, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND GRANTING DEFENDANT’SCROSS MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on Cross Motions for Summary Judgment Re: Underpayment of Code 97039 and the service of Dry/Hydrotherapy and the Court having heard argument of counsel, reviewed the motions and all proper summary judgment evidence, and being otherwise advised in the premises, it is hereupon ORDERED AND ADJUDGED as follows:
The issue presented is whether CPT code 97039, representing dry hydrotherapy, was underpaid by State Farm in the instant claim for Personal Injury Protection (“PIP”) benefits.
Facts:
The dates of service, in the underlying claim, range from November 6, 2013 through February 10, 2014. For these dates of service, Plaintiff submitted to State Farm bills for CPT code 97039, charging $30.00 per each unit of service. State Farm calculated reimbursement pursuant to Fla. Stat. § 627.736(5)(a)1.f., and allowed $15.00 for the service as the “maximum reimbursable allowance under workers’ compensation. . .” State Farm paid Plaintiff 80% of this amount ($12.00) for each unit of CPT 97039 submitted by Plaintiff.
Analysis:
It should also be noted that the parties have stipulated that the only remaining issue in this case is whether State Farm properly reimbursed the dry hydrotherapy service rendered by the Plaintiff under CPT code 97039.The parties do not dispute if the services were related or necessary or reasonable.
The Defendant contends that, pursuant to the Policy and the applicable Statute, if the reimbursement rate for CPT Code 97039 is not delineated in the physicians fee schedule of Medicare Part B then, pursuant to Fla. Stat. § 627.736(5)(a)(1)(f), the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation fee schedule.
The Plaintiff contends that, the service provided under 97039, dry/hydrotherapy, is reimbursable under Medicare Part B and that, although the reimbursement rate for 97039 is not included in the fee schedule, the Insurer should have determined the rate by looking at the particular service on an individualized basis and made a reasonableness analysis to determine the amount to be paid.
The Court finds the Plaintiff’s argument unpersuasive. The distinction is that just because the Code is reimbursable under Medicare Part B, it does not mean that it is reimbursable under 627.736 (5)(a)(1)(f)(2013).
At the time of submittal of the bills in this case, the applicable Florida Statute was 627.736 (5)(a)(1)(f)(2013).[1] The plain language of 627.736 (5)(a)(1)(f)(2013) is clear. Services that are allowable under the participating physicians fee schedule of Medicare Part B are reimbursable,
[h]owever, 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.
Florida Statute was 627.736 (5)(a)(1)(f)(2013)(emphasis added).
The sub subparagraph referred to is (f)(I) which reads “[t]he participating physicians fee schedule of Medicare Part B.[2]” The Court finds that the Statute clearly delineates that there is a modifier to “not reimbursable under Medicare Part B,” the service must be included in the physicians fee schedule otherwise it is not reimbursable under 627.736 (5)(a)(1)(f)(2013).
The Plaintiff cites to Allstate v. Jorge Perez, 111 So. 3d 960 (Fla. 2nd DCA 2013) [38 Fla. L. Weekly D915a] to support its argument. The Court, however, finds that the Plaintiff’s reliance on Perez is misplaced. The Court in Perez was addressing a specific situation where the Code seeking reimbursement was previously covered under Medicare Part B but was no longer reimbursable under Medicare Part B. However, the applicable Statute at the time Perez was decided read as follows:
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. 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.
Florida Statute 627.736 (5)(a)(2)(f)(2009)(emphasis added).
This Court would agree that the 2009 version of the Statute lacks clarity as to what is considered reimbursable under the Statute or rather what is not reimbursable under the Statute. As such the Court in Perez found that the reasonableness analysis would be appropriate if the service was reimbursable under Medicare Part B, but not included in the fee schedule. The qualifying language that is in the 2013 version of Florida Statute 627.736(5)(a)(1)(f) is not present in the 2009 version. This is an important difference that was acknowledged by the Court in Perez. The Court explicitly addressed the language of the 2009 statute and that it is bound to the language as written finding “[w]e understand that this complicates the reimbursement process under the PIP statute. Nonetheless, we are bound by the plain language of section 627.736(5)(a)(2)(f), which does not require a CPT code to be recognized by Medicare Part B if the services are otherwise covered and reimbursable under Medicare Part B. See Overstreet v. State, 629 So.2d 125, 126 (Fla.1993) (‘If the legislature did not intend the results mandated by the statute’s plain language, then the appropriate remedy is for it to amend the statute.’); Peace River/Manasota Reg’l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1087 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D348b] (‘[T]his court is not permitted to add words to a statute that were not placed there by the legislature.’).” Perez, 111 So. 3d 960 (Fla. 2nd DCA 2013). The Perez Court cites to the fact that it cannot add words that are not in the Statute and must utilize the most appropriate remedy as written. This is not the situation in the instant case under the 2013 version of the Statute.
Although the Plaintiff argues that State Farm skipped a step by failing to look at the underlying service performed, the Court finds that neither the applicable Statute nor the case law requires such a step in this case. In the instant case, the Provider performed a service, billed for that service under CPT Code 97039, which is not delineated in the fee schedule and although it may be reimbursable under Medicare Part B, the Court finds that it is not considered reimbursable under 627.736 (5)(a)(1)(f)(2013). The next determination is that since it is not reimbursable under 627.736 (5)(a)(1)(f)(2013), the Insurer then looks to see if it is reimbursable under the workers compensation fee schedule, which it is. The Insurer then, pursuant to 627.736 (5)(a)(1)(f)(2013) and/or Policy, reimburses under the workers compensation fee schedule.[3]
Whether CPT Code 97039 would be reimbursable under another Code in the fee schedule or whether the language of the Federal Registrar gives a different methodology, the Court finds is irrelevant because the statutory language is clear.
In light of the foregoing, Plaintiff’s Motion for Summary Judgment is DENIED and Defendant’s Cross Motion for Summary Judgment is GRANTED.
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1(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. However, such a charge may not exceed the amount the person or institution customarily charges for like services or supplies. In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s. 395.002 provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
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.
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.
2The Applicable Policy language mirrors the language of Fla. Stat. § 627.736(5)(a)(1)(f):
3This simplified process, provided in the Statute, would be supported by the well-established principle that the legislative intent of the Florida PIP Statute is swift and virtually automatic payment to the insured. (Emphasis added) Nunez v. Geico General Insurance Company, 117 So.3d 388 (Fla.2013) [38 Fla. L. Weekly S440a] citing to Custer Medical Center v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2011) [35 Fla. L. Weekly S640a].
