27 Fla. L. Weekly Supp. 289a
Online Reference: FLWSUPP 2703PERRInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will limit reimbursement to, and pay no more than, 80% of 200% of allowable amount under Medicare Part B participating physicians fee schedule satisfies requirement to give “simple notice” of intent to utilize Medicare fee schedule — Applying Multiple Procedure Payment Reduction is not utilization limit prohibited by PIP statute — Affidavit filed by medical provider in support of argument that there are additional dates of service that were not reimbursed by insurer is insufficient to defeat summary judgment where there are no bills or medical records attached to verify claims made in affidavit, and affidavit contains hearsay allegations — Summary judgment is entered in favor of insurer
FAKHOURY MEDICAL & CHIROPRACTIC CENTER, PLLC, a/a/o Samantha Perron, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Marion County. Case No. 17-SC-2963, Civil Division. June 22, 2018. Robert E. Landt, Judge. Counsel: Jose F. Garcia, Orlando, for Plaintiff. Daniel R. Crotta and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.
FINAL JUDGMENT FOR DEFENDANTPROGRESSIVE EXPRESS INSURANCE COMPANY
THIS CAUSE having come before the Court on March 28, 2018 on Defendant’s Amended Motion for Summary Judgment and Incorporated Memorandum of Law, and the Court having heard arguments of counsel, and being otherwise advised of the premises, finds as follows:
FACTS
The facts in this case are undisputed. The only record evidence is the affidavit of Defendant’s Litigation Specialist, Jason Beedlow.
Progressive American Insurance Company (“Progressive”) issued an automobile insurance policy that provided Personal Injury Protection Coverage (“PIP”) to the named insured subject to the terms, conditions and exclusions contained within the policy and applicable Florida law, including, but not limited to Fla. Stat., §627.736. The effective dates of the policy were from December 12, 2014 through June 12, 2015.
On February 17, 2015, Samantha Perron was injured in an automobile accident while occupying an insured vehicle. Ms. Perron sought medical treatment from Plaintiff for injuries she reportedly received as a result of the aforementioned motor vehicle accident. Plaintiff submitted claim forms to Progressive seeking payment for PIP and Med Pay Benefits pursuant to an assignment of benefits. Upon receipt of Plaintiff’s claims, Progressive paid Plaintiff the amounts identified in the Explanation of Benefits (“EOB”) and the Medial Payments Detail attached to the affidavit of Defendant’s Litigation Specialist.
Based on the policy period, Fla. Stat., §627.736 (2013) applied to the policy at issue. The pertinent part of Fla. Stat., §627.736 applicable to the competing motions for summary judgment are as follows:
(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.
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 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 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 schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
3. 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)
4. If an insurer limits payment as authorized by subparagraph 1., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.
The applicable PIP 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)(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:
a. for emergency transport and treatment by providers licensed under Chapter 401 of the Florida Statutes, 200 percent of Medicare;
a. for emergency services and care provided by a hospital licensed under Chapter 395 of the Florida Statutes, 75 percent of the hospital’s usual and customary charges;
b. for emergency services and care as defined by Section 395.002 of the Florida Statutes, 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;
c. 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;
d. 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; and
e. 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.
However, if such services, supplies or care is not reimbursable under Medicare Part B, as provided in this subsection f., we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Section 440.13 of the Florida Statutes, 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 will not be reimbursed by us.
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)
We will reduce any payment to a medical provider under this Part II(A) by any amounts we deem to be unreasonable medical benefits. However, the medical benefits shall provide reimbursement only for such services, supplies and care that are lawfully rendered, supervised, ordered or prescribed. Any reductions taken will not affect the rights of an insured for coverage under this Part II(A). Whenever a medical provider agrees to a reduction of medical benefits charged, any co-payment owed by an insured will also be reduced.
The insured shall not be responsible for payment of any reductions applied by us. If a medical provider disputes an amount paid by us, we will be responsible for resolving such dispute. If a lawsuit is initiated against an insured as a result of the reduction of a medical bill by us, other than reductions taken pursuant to Fl. St. 627.736 (5)(a)(1) (a through f), we will provide the insured with a legal defense by counsel of our choice, and pay any resulting judgment. The insured person must cooperate with us in the defense of any claim or lawsuit. If we ask an insured person to attend hearings or trials, we will pay up to $200 per day for loss of wages or salary. We will also pay other reasonable expenses incurred at our request.
ISSUES
The issues as framed by the applicable pleadings and record evidence are 1.) whether Progressive’s policy satisfied the notice requirements of Fla. Stat. §627.736(5)(a)5, which states that an insurer only needs to provide notice to its insured that it “may” limit reimbursement to the schedule of maximum charges such that it was permitted to limit Plaintiff’s charges to the schedule of maximum charges outlined in the policy and Fla. Stat. §627.736(5)(a)1 (2013); 2.) whether Progressive was permitted pursuant to the policy and Fla. Stat. §627.736(5)(a)3 to apply the Medicare payment methodology of the Federal Centers for Medicare and Medicaid Service, Multiple Procedure Payment Reductions (“MPPR”), to Plaintiff’s charges; and 3.) whether Progressive properly paid Plaintiff’s claims pursuant to the schedule of maximum charges and MPPR.
CONCLUSIONS OF LAW
I. FEE SCHEDULE ELECTION
Pursuant to the rulings in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] and Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a], all that is required for an insurer to apply the Medicare Fee Schedule is “simple notice” of the insurer’s intent to apply the fee schedule. There are no “magic words” required to meet the aforementioned notice requirement. Specifically, in Orthopedic Specialists, the Court noted that
Virtual Imaging requires no magic words from Allstate’s policy and its simple notice requirement is satisfied by Allstate’s [unambiguous] language limiting “[a]ny amounts payable” to the fee schedule-based limitation found in the statute.
The Supreme Court further ruled that Allstate’s policy of insurance met the “simple notice” required under the statute to allow Allstate to apply the Medicare Fee Schedule. Allstate’s policy at issue in Orthopedic Specialists read as follows:
Allstate will pay to or on behalf of the injured person the following benefits:
1. Medical Expenses
Eighty percent of all reasonable expenses for medical necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services
An endorsement to the policy provides:
Limits of Liability
. . .
Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules.
Progressive’s policy goes further than required under Fla. Stat. §627.736(5)(a)5 and Orthopedic Specialists. Pursuant to Fla. Stat. §627.736(5)(a)5, Progressive’s policy clearly provides notice that Progressive will provide reimbursement pursuant to the fee schedule of Fla. Stat. §627.736(5)(a)1, as it specifically states that Progressive will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges: 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. Thereafter, Progressive’s provision tracks verbatim Fla. Stat. §627.736(5)(a)1. This Court finds that Progressive’s policy as written satisfies the “simple notice” requirement such that Progressive is permitted to utilize the Medicare Fee Schedule as applied in this case.
II. APPLICATION OF MPPR
The next issue raised is whether Progressive is permitted to utilize the Medicare coding policies and payment methodologies as outlined in Fla. Stat. §627.736(5)(a)3 (2013), which provides 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 to highlight changes)
Fla. Stat., §627.736(5)(a)3. does not allow Progressive to apply any limitation on the number of treatments or other utilizations that limits that apply under Medicare or worker’s compensation. Finally, the statute provides that Progressive is not prohibited from using “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.” §627.736(5)(a)3. (2013). Progressive’s policy specifically incorporates the aforementioned statutory language. Moreover, the policy specifically identifies the coding policies or payment methodologies that are applicable, including but not limited to Multiple Procedure Payment Reduction (“MPPR”). Fla. Stat. §627.736(5)(a)3 and Progressives policy clearly permits Progressive to apply Medicare payment methodologies, such as MPPR.
MPPR is a payment methodology used by the federal Medicare program to limit amount of reimbursement available when multiple therapy services are provided by the same provider to the same patient on the same day. See MLN Matters, No. MM8206 (April 1, 2013), official publication of the U.S. Department Health, Center for Medicare & Medicaid Services. Specifically, MPPR applies to the practice expenses payment (PE). The rule provides that the full payment is made for the therapy service with the highest practice expense on the day in question. For any other therapy services, the practice expense is reduced by 50%. 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.”
Applying MPPR to Plaintiff’s claim did not result in a utilization limit. Quite the contrary, the record evidence did not show that applying MPPR limited the treatment provided to the patient. Instead, applying MPPR resulted in the patient being able to receive more treatment by reducing the overall expenses of the treatment.
Based on the record evidence, this Court fords that Progressive properly put the insured/Plaintiff on notice of its intent to utilize the schedule of maximum charges (fee schedule) pursuant to Fla. Statute, §627.736(5)(a). Additionally, Progressive properly applied the Medicare payment methodology, MPPR, to Plaintiff’s claims pursuant to the policy and Fla. Stat. §627.736(5)(a)3.
III. PLAINTIFF’S RESPONSE AND AFFIDAVIT
Plaintiff argued at the summary judgment hearing there were additional dates of service that were not reimbursed by Defendant and produced an affidavit from Tony Edworty. Florida Rule of Civil Procedure 1.510 (e) requires that affidavits must be, among other requirements, (1) made on personal knowledge, (2) must set forth such facts as would be admissible in evidence and (3) must have all sworn or certified copies of all documents attached. The Affidavit of Mr. Edworty contained an allegation that Defendant failed to pay three CPT codes. This affidavit did not contain any documentation supporting the allegations contained within. Plaintiff’s complaint does not contain the specific dates of service at issue nor does it attach the required statutory demand letter to identify the dates of service at issue. The Court finds that this affidavit is insufficient and does not meet the necessary requirements to be considered as Summary Judgment evidence. There are no bills or medical records attached that would verify the claims made in the affidavit. Additionally, Plaintiff’s affidavit contains hearsay allegations that cannot be considered by this court at Summary Judgement.
IT IS ORDERED AND ADJUDGED:
1. Progressive’s Amended Motion for Summary Judgment and Incorporated Memorandum of Law is GRANTED. Plaintiff shall take nothing from its Complaint and Defendant shall go hence forth without day. The Court reserves jurisdiction to award Defendant its reasonable attorney’s fees and costs pursuant to Florida Statutes, §768.79 and Fla. Stat. §54.041.
