27 Fla. L. Weekly Supp. 972a

Online Reference: FLWSUPP 2711POLLInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that limits reimbursement to 80% of 200% of allowable amount under Medicare Part B fee schedule clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule — Pursuant to terms of policy and section 627.736(5)(a) 1-3, insurer is permitted to utilize Medicare Multiple Procedure Payment Reduction to calculate reimbursement amounts so long as application does not result in utilization limit

SACOWI MEDICAL CLINIC LLC, a/a/o Princess Pollard, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2017-SC-010388-O (72), Civil Division. October 1, 2019. Faye L. Allen, Judge. Counsel: Olivia Miller, Altamonte Springs, for Plaintiff. Belinda Rivera and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.

ORDER ON DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND INCORPORATEDMEMORANDUM OF LAW AND PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come before the Court on July 1, 2019 on Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law and Plaintiff’s Motion for Final Summary 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 February 28, 2016 through August 28, 2016. It was reported that on July 1, 2016, Defendant’s insured, Princess M. Pollard, was involved in a motor vehicle accident in which she allegedly sustained injuries. As a result of those alleged injuries, Princess M. Pollard sought treatment with the Plaintiff for dates of service 7/12/2016 to 10/19/2016. Princess M. Pollard executed and assignment of benefits, assigning to Plaintiff her rights under her policy of insurance with Defendant. At the time of the accident Princess M. Pollard was covered under Defendant’s Policy Form 9611D FL (07/13). The bills submitted to the Defendant were paid under the permissive payment methodology of Fla. Stat. 627.736(5)(a)(1)-(3). Defendant also applied the Multiple Procedure Payment Reductions (hereinafter “MPPR”) to specified “Always Therapy” codes. After applying MPPR to the specified codes for the year in which the services were rendered, the amount allowed by the Medicare Physician’s Fee Schedule was less than that allowed by Medicare pursuant to the 2007 Physician’s Fee Schedule. In those instances, Progressive allowed 200% of the 2007 Physician’s Fee Schedule and paid 80% of that amount.

ISSUES

The issues before the court are (1) whether Defendant gave proper notice of its intent to utilize the schedule of maximum charges provided for in Fla. Stat. §627.736(5)(a)(1)a-f; (2) whether Defendant was permitted to apply the Multiple Procedure Payment Reduction (hereinafter “MPPR”) to certain charges submitted by Plaintiff; and (3) whether Defendant properly paid for dates of service 7/14/2019, 7/15/2019, 7/20/2019, 7/22/2019, 7/28/2019 and 7/29/2019.

ANALYSIS/CONCLUSIONS OF LAW

(1) Defendant Gave Proper Notice of its Intent to Utilize the Schedule of Maximum Charges Provided for in Fla. Stat. 627.736(5)(1)a-f

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.

* * *

1. 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, 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.

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:

* * *

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.

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.

Consistent with Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] decision, and for the reasons outlined in Sea Spine Orthopedic Institute, LLC v. Progressive Select Insurance Company, 26 Fla. L. Weekly Supp. 121c, Progressive clearly stated that it will determine to be unreasonable any charges that exceed the schedule of maximum charges provided for pursuant to Fla. Stat. §627.736(5)(a)1. Progressive also clearly stated that it will limit reimbursement to, and pay not more than 80% of the schedule of maximum charges.

This Court is persuaded by and bound by the Supreme Court’s decision in Orthopedics Specialists. Progressive complied with its statutory obligation to include the fact-based method for determining what satisfies the reasonable medical expense requirement pursuant to Fla. Stat. §627.736(5)(a) in its policy. Moreover, Progressive also gave clear notice to the insured that it will deem any charges in excess of the schedule of maximum charges to be unreasonable and the it will pay no more than the schedule of maximum charges.

(2) Pursuant to Fla. Stat. 627.736(5)(a)(3) and the Terms of the Policy, Defendant is Permitted to Apply MPPR to Certain Always Therapy Codes

The Court is guided by the opinion of the Florida Supreme Court in GEICO General Ins. Co. v. Virtual Imaging Services, 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] and Allstate Fire & Cas. Ins. Co. v. Stand-Up MRI of Tallahassee, 188 So. 3d 1 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]. It is also guided by the fact that the legislature substantially amended the PIP statute to allow insurance companies like Defendant to use Medicare’s coding policies and payment methodologies when determining reimbursement under Fla. Stat., §627.736(5)(a)(1)-(3). Based on the plain meaning statutory language set forth in Fla. Stat., §627.736(5)(a)(1)-(3) and the terms of the policy, which mirror the statute, Progressive is permitted to utilize Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services to calculate the reimbursement amounts for Plaintiff’s charges so long as their application does not result in a utilization limit. No argument or evidence was presented that would suggest that applying MPPR resulted in a utilization limit.

(3) Defendant Properly Paid All Dates of Service

In its Motion for Final Summary Judgment, Plaintiff argued that Defendant failed to pay for specified procedure codes for dates of service 7/14/2019, 7/15/2019, 7/20/2019, 7/22/2019, 7/28/2019 and 7/29/2019. In support of this argument, Plaintiff relied upon pages 57-61 of the affidavit of Defendant’s Litigation Specialists, Samuel H. Fiske. Plaintiff’s reliance on the aforementioned affidavit does not support Plaintiff’s Motion for Final Summary Judgement as Plaintiff did not account for the fact that the affidavit of Defendant’s Litigation Specialists included Reconsideration EOBs evidencing the fact that the procedure codes specified in Plaintiff’s motion were paid pursuant to the Policy and Florida Statutes, §627.736(5)(a)1-3. Plaintiff failed to put for the any admissible summary judgment evidence that would dispute Defendant’s payment such that Plaintiff’s summary judgment must fail.

It is hereby ORDERED and ADJUDGED:

1. Plaintiff’s Motion for Summary Judgment is Denied.

2. Defendant’s Motion for 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.