27 Fla. L. Weekly Supp. 641b
Online Reference: FLWSUPP 2707LAWSInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy and statute allow insurer who has elected statutory fee schedule method of reimbursement to apply Medicare Advanced Registered Nurse Practitioner payment methodology to charges — Application of methodology does not result in utilization limit
INTERVENTIONAL ASSOCIATES OF LAKELAND LLC, a/a/o La’Miracle Lawson, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2018-SC-019768-O (70), Civil Division. March 11, 2019. Elizabeth Starr, Judge. Counsel: Bobby Allen Lean, Jr., Orlando, for Plaintiff. Belinda Rivera and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.
ORDER GRANTING FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT AND DENYINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court for consideration on February 27, 2019, on competing motions for summary judgment, and the Court being otherwise advised in the premises, finds:
UNDISPUTED FACTS
1. Plaintiff filed a one count action for breach of contract wherein it alleged that Progressive improperly reduced charges for treatment provided by an Advanced Registered Nurse Practitioner (“ARNP”) on March 30, 2018.
2. The parties agreed that Progressive’s policy gave proper notice that it will limit reimbursement for covered medical benefits to the “schedule of maximum charges” outlined in Florida Statute §627.736(5)a.1.
3. Plaintiff submitted a $323.70 charge for CPT Code 99203 (initial evaluation and management) for services rendered by an ARNP; that the participating physician’s fee schedule of Medicare Part B for CPT Code 99203 is $109.17; that Progressive reduced the amount allowed under the participating physician’s fee schedule of Medicare Part B by 15% because the medical services were rendered by an ARNP; allowed 200% of the reduced amount ($185.59); and paid 80% of that amount, totaling $148.47.
ISSUE
4. The sole issue before the court was whether Progressive, pursuant to the terms of Florida Statutes §627.736(5)a.3. and the terms of the policy, is permitted to apply the ARNP payment methodology of the federal Centers for Medicare and Medicaid to Plaintiff’s charges.
ARGUMENTS
5. Plaintiff argued that Progressive did not put forth sufficient evidence that would support summary judgment; that Progressive breached the terms of the policy by not paying Plaintiff’s charge at 80% of 200% of the participating physician’s fee schedule of Medicare Part B; that Progressive’s policy does not give sufficient notice to allow it to apply Medicare payment methodologies; and that Progressive’s policy was ambiguous.
6. Progressive argued that Florida Statutes, §627.736(5)a.3. and the terms of the policy expressly permit it to apply Medicare payment methodologies, in this case the payment methodology for ARNPs, as provided for in the Social Security Act [42 U.S.C.A. 13951(a)1.]; the CMS Manual System Publication 100-04 Medicare Claims Processing, Transmittal 2656, dated February 7, 2013; Advanced Practice Registered Nurses, Anesthesiologist Assistants, and Physician’s Assistants publication from the Department of Health and Human Services, Centers for Medicare and Medicaid Services dated October 2016.
LEGAL ANALYSIS
7. Contrary to Plaintiff’s arguments, the court finds that based on the pleadings, affidavits, and other record evidence, there is no genuine issue of material fact and that the only issue that remains is a question of law.
8. Plaintiff stipulated that Defendant’s policy provided proper notice of its intent to apply the Schedule of Maximum Charges provided for under Florida Statutes §627.736(5)a.1., which provides in pertinent part:
The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
* * *
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 . . .
9. As outlined by Progressive, the schedule of maximum charges provided for in Florida Statutes §627.736(5)a. is not limited to section (5)a.1. It consists of five (5) subsections that must be read “as whole, endeavoring to give every provision its full meaning and operative effect.” Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973, 976 (Fla. 2017) [42 Fla. L. Weekly S38a]. The court must analyze the statute in context as a whole and avoid concentrating only upon section (5)a. 1 . Id.
10. Florida Statutes, §627.736(5)a.3 (2018) 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. (emphasis added)
11. The aforementioned statutory language modifies section (5)a.1. in three ways. First, it prohibits an insurer from applying the schedule of maximum charges if it would limit the number of treatments or result in a utilization limit. The court finds that applying the ARNP payment methodology to Plaintiffs claim did not limit any treatment or otherwise result in a utilization limit.
12. Second, section (5)a.3. requires that insurers applying the schedule of maximum charges reimburse medical providers who lawfully render treatment to the patient under the scope of their license even if Medicare restricts or limits reimbursement for the procedures or procedure codes billed by Plaintiff because of their discipline. No evidence was presented to show that Medicare prohibited reimbursement to ARNPs for the services. Quite the contrary, evidence was presented that Medicare reimburses ARNPs for the services at issue, just not based on 100 percent of the physician’s fee schedule of Medicare Part B.
13. Third, and most importantly, section (5)a.3. modifies how the participating physician’s fee schedule is applied by expressly providing that despite the aforementioned limitations on (5)a.1., an insurer such as Progressive may apply the coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services so long as they do not result in a utilization limit.
14. Progressive’s policy also expressly provides
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 and Medicaid 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).
15. This court finds that as a matter of law, Florida Statutes, §627.736(5)a. and the terms of Progressive’s policy, when read as a whole, expressly permit Progressive to apply the coding policies and payment methodologies provided for by the federal Centers for Medicare and Medicaid Services so long as they do not result in a utilization limit. Neither the statute nor policy language cited by either party are ambiguous.
16. As outlined in 42 U.S.C.A 1395l and the CMS Manual System Publication 100-04 Medicare Claims Processing, Transmittal 2656, dated February 7, 2013, the federal Centers for Medicare and Medicaid Services created a payment methodology whereby the allowable amount under the physician’s fee schedule of Medicare Part B for services provided by an ARNP is 85% of the fee schedule amount.
17. The court further finds that the ARNP payment methodology is not a utilization limit.
Based on the foregoing, it is ORDERED AND ADJUDGED that Plaintiff’s motion for summary judgment is DENIED. Defendant’s motion for final summary judgment is granted. Plaintiff shall take nothing from its Complaint and Defendant shall go hence forth without day. The court reserves jurisdiction to award attorney’s fees and costs to Defendant.
