27 Fla. L. Weekly Supp. 726b
Online Reference: FLWSUPP 2708DRESInsurance — Personal injury protection — Coverage — Medical expenses — Insurer properly reimbursed provider at 80% of 200% of participating physician’s fee schedule for Medicare for Part B for 2007 rather than utilizing Medicare Limiting Charge — Based on language of statute and terms of policy, when read as a whole, medical providers like plaintiff are to be reimbursed based on higher of the participating physician’s fee schedule for Medicare Part B for the year in which the services, supplies, or care is rendered or the participating physician’s fee schedule for 2007, whichever results in a higher reimbursement
EMERY MEDICAL SOLUTIONS, INC. a/a/o Melissa Dressler, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2018 16172 CODL (73), Civil Division. September 25, 2019. A. Christian Miller, Judge. Counsel: Michelle Reeves, Longwood, for Plaintiff. Benjamin R. Floyd and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR SUMMARY DISPOSITION/JUDGMENT
THIS CAUSE having come before the Court on August 2, 2019 on Defendant’s Motion for Summary Disposition/Judgment, and the Court having heard argument of counsel, and being otherwise advised in the premises, finds as follows:
UNDISPUTED FACTS
Progressive issued a policy of insurance to its insured which provide PIP coverage with effective dates of March 7, 2016 through September 7, 2016. It was reported that on June 10, 2016, Defendant’s insured, Melissa Dressler, was involved in a motor vehicle accident in which she allegedly sustained injuries. As a result of those alleged injuries, Melissa Dressler sought treatment with the Plaintiff for date of service 7/23/2016. Melissa Dressler executed and assignment of benefits, assigning to Plaintiff her rights under her policy of insurance with Defendant. At the time of the accident Melissa Dressler was covered under Defendant’s Policy Form 9611D FL (07/13). Plaintiff submitted one claim form seeking $2,900 in payment for CPT Codes 72141 and 72148 ($1,450.00 each). The bills submitted were paid under the permissive payment methodology of Fla. Stat. 627.736(5)(a)(1)-(3). Specifically, Defendant allowed the charges at 200% of the 2007 participating physician’s fee schedule under Medicare Part B as this amount exceeded 200% of the amount allowed based on the participating physician’s fee schedule under Medicare Part B 2016 (year in which services were provided). Defendant paid Plaintiff 80% of 200% of the 2007 participating physician’s fee schedule for Medicare Part B.
ISSUE
Plaintiff stipulated on the record that it is not challenging Defendant’s election of the schedule of maximum charges provided for in Fla. Stat. §627.736 and the terms of the applicable policy of insurance. The sole issue before the court is whether Defendant was required to reimburse Plaintiff at 80% of 200% of the participating physician’s fee schedule for Medicare Part B or pursuant to the Limiting Charge.
ANALYSIS/CONCLUSIONS OF LAW
Plaintiff argued that Fla. Stat. §627.736(5)(a)1. requires that Defendant utilize the non-facility limiting charge in every instance because it results in a higher reimbursement than the non-facility participating physician’s fee schedule under Medicare Part B. Plaintiff cited to Accu-Med Diagnostic Centers, a/a/o Neill Lopez v. State Farm Mut. Auto. Ins. Co., Case No.: 14-004705 COSO(61) (Broward Cty. Ct. Mar. 15, 2019) for this proposition; however, as outlined by Defendant, the Accu-Med case involved whether State Farm could apply the Multiple Procedure Payment Reduction (“MPPR”) if applying MPPR resulted in the allowed amount going below the 2007 statutory floor provided for in Fla. Stat. §627.736(5)(a)2.
Plaintiff’s argument that Defendant should have reimbursed it pursuant to Medicare’s Limiting Charge is inconsistent with the plain language of Fla. Stat. §627.736 and the terms of Defendant’s policy of insurance which clearly state that the allowed amount for a provider like Plaintiff is based on the participating physician’s fee schedule of Medicare Part B. Specifically, Fla. Stat. §627.736(5)(a)l.f. and 5(a)2 provide as follows:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
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1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
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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.
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2.☐ For purposes of subparagraph 1., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the service year in which the services, supplies, or care is rendered and for the area in which such services, supplies, or care is rendered, and the applicable fee schedule or payment limitation applies to services, supplies, or care rendered during that service 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 schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B. For purposes of this subparagraph, the term “service year” means the period from March 1 through the end of February of the following year. (Emphasis Added)
The applicable policy provisions are 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)(2) (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:
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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, except as follows:
(1) for services, supplies and care provided by ambulatory surgical centers and clinical laboratories, 200 percent of the allowable amount under Medicare Part B; and
(1) for durable medical equipment, 200 percent of the allowable amount under “The Durable Medical Equipment Prosthetics/Orthotics and Supplies” fee schedule of Medicare Part B.
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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 services, supplies and care subject to Medicare Part B. (Emphasis Added.)
Based on the plain language of the aforementioned statutory provisions and the terms of the applicable policy of insurance, when read as a whole, medical providers like Plaintiff (all other providers) are to be reimbursed based on the higher of the participating physician’s fee schedule for Medicare Part B for the year in which the services, supplies or care is rendered or the participating physician’s fee schedule for 2007, whichever results in a higher reimbursement. See Millennium Diagnostic Imaging Ctr., Inc. v. Security National Ins. Co., 882 So. 2d 1027 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1817b] (limiting charge is not an allowable amount upon which charges may be based) and Advanced Diagnostics Testing v. Allstate Ins. Co., 888 So. 2d 663 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2342c] (“Allowable amount under Medicare Part B” refers to the participating physician’s fee schedule).
The only summary disposition/judgment evidence in the record was the affidavit of Defendant’s Adjuster, Joel Acevedo, filed in support of Defendant’s Motion for Summary Disposition/Judgment and Defendant’s request for judicial notice wherein Defendant attaches the printouts from the federal Center for Medicare and Medicaid Services for both CPT Codes for 2016 (the year in which the services were provided) and 2007. See Exhibits A & B to the request for judicial notice. Pursuant to Fla. Stat. §90.202, the Court takes judicial notice of the printouts which evidence that the amount allowed under the participating physician’s fee schedule for 2016 results in a lower payment than under the participating physician’s fee schedule of Medicare Part B for 2007. Defendant correctly allowed 200% of the participating physician’s fee schedule for Medicare Part B for 2007 and paid Plaintiff 80% of that amount.
For the reasons expressed on the record and outlined herein, Defendant’s Motion for Summary Disposition/Judgment is hereby GRANTED. Plaintiff shall take nothing from its Complaint and Defendant shall go hence forth without day. The court reserves jurisdiction to award attorneys’ fees and costs to Defendant.
