27 Fla. L. Weekly Supp. 742a

Online Reference: FLWSUPP 2708CALOInsurance — Personal injury protection — Coverage — Medical expenses — Multiple Procedure Payment Reductions — PIP insurer may apply MPPR when reimbursing chiropractor for physical therapy services — Insurer properly reimbursed code that is considered to be noncompensable bundled code by Medicare pursuant to workers’ compensation fee schedule

FLORIDA WELLNESS & REHAB PA, a/a/o Jose Perez Calo, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 16-CC-040187, Division I. October 17, 2019. Joelle Ann Ober, Judge. Counsel: Derek Paredes, Landau & Associates, P.A., Sunrise, for Plaintiff. Robert Lowry and Diane Cassie Bermudez, Progressive PIP House Counsel, Tampa, for Defendant.

ORDER GRANTING DEFENDANT’S AMENDEDMOTION FOR FINAL SUMMARY JUDGMENT andFINAL JUDGMENT FOR DEFENDANT

THIS MATTER came before this Court on May 9, 2019, on Defendant’s Amended Motion for Final Summary Judgment filed April 10, 2019. Having reviewed and considered the Defendant’s Motion, Plaintiff’s response in opposition, argument of counsel for the parties, relevant case law, and being otherwise fully advised, the Court finds as follows:

1. For purposes of this case only, Plaintiff has stipulated that Defendant was authorized to utilize the permissive fee schedule methodology of Florida Statutes section 627.736(5)(a)1. and the Medicare payment methodology known as the Multiple Procedure Payment Reduction (“MPPR”). As such, the issue presently before the Court is whether the MPPR was properly applied by Defendant to the claims presented by the Plaintiff in this case.

2. Plaintiff argues that because Medicare does not reimburse chiropractors for non-chiropractic services, in particular those services billed under Medicare “always therapy” codes, the MPPR would not apply to services rendered by a chiropractor. Because the services at issue in this case were rendered by a chiropractor, Plaintiff asserts that application of the MPPR was improper. Plaintiff argues that the claims at issue should be paid at the fee schedule amount without application of the MPPR.

3. Defendant argues that, unlike Medicare, Florida Statutes section 627.736 requires that chiropractors be reimbursed for the “always therapy” services at issue, and, because the services are compensable under PIP, the MPPR may be applied in determining the reimbursement amount.

4. The Court agrees with the analysis in BC Health Care Consulting LLC a/a/o Zani Resulaska v. Progressive Express Insurance Company, Order Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment Case No. 18-CC-034235 (Fla. Hillsborough Cty. Ct. June 14, 2019), as well as the decisions in Care Wellness Center, LLC v. Progressive Select Insurance Co., Case No. COCE 18000985 (Fla. Broward Cty. Ct. Apr. 11, 2019) [27 Fla. L. Weekly Supp. 206a] and Care Medical Centers, Inc. v. Progressive American Insurance Co., Case No. COCE17004013 (Fla. Broward Cty. Ct. Apr. 11, 2019) [27 Fla. L. Weekly Supp. 205a].

5. Florida Statutes section 627.736(5)(a)3. provides:

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.

6. It is not disputed that the services at issue in this case would not be compensable under Medicare as they were provided by a chiropractor. However, the language of section 627.736(5)(a)3. mandates that, as long as the care provided is within the scope of the provider’s license, an insurer must reimburse the provider for such services even if Medicare would not. As such, Florida’s PIP statute makes certain services that are non-compensable under Medicare, compensable under PIP, including services at issue in this case.

7. Section 627.736(5)(a)3. also permits an insurer to use Medicare coding policies and payment methodologies in determining the appropriate amount of reimbursement for compensable services.

8. Having determined that the services at issue in this matter are compensable under PIP, and giving meaning to all provisions contained in section 627.736(5)(a)3., the Court finds that the MPPR may be properly applied to compensable services rendered by a chiropractor to determine the proper amount of reimbursement.

9. The MPPR is not applicable to a bundled code or a primary code associated with a bundled code.¹ The MPPR was not applied to the bundled code 97010 or the primary code it was billed in combination with in this matter. Additionally, code 97010 is not compensable under Medicare. However, pursuant to section 627.736(5)(a)1.f., Progressive properly reimbursed code 97010 in accordance with the allowance under workers’ compensation.

10. In accordance with the foregoing, this Court finds that the MPPR may be applied to services rendered by a chiropractor, which are made compensable under PIP. Additionally, this Court finds Defendant properly applied the MPPR in this matter.

Based on the foregoing, it is therefore ORDERED AND ADJUDGED:

1. Defendant’s Amended Motion for Final Summary Judgment filed April 10, 2019 is hereby GRANTED.

2. Final Summary Judgment is hereby entered in favor of Defendant, PROGRESSIVE SELECT INSURANCE COMPANY. Plaintiff shall take nothing by this action and Defendant shall go hence without day.

3. The Court reserves jurisdiction to determine entitlement and amount of attorney’s fees and costs, if any, to the Defendant, upon a timely motion.

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¹See Federal Register Vol. 75 No. 219 pp. 73241-73242 (Nov. 29, 2010) (indicting that MPPR “does not apply to add-on, bundled, or contractor priced ‘always therapy’ codes.”