27 Fla. L. Weekly Supp. 93b
Online Reference: FLWSUPP 2701ANDRInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Multiple Procedure Payment Reduction — Where PIP statute states that fee schedule or payment limitation to be used when using schedule of maximum charges may not be less than allowable amount under applicable schedule for 2007 Medicare Part B, and PIP policy states that applicable fee schedule or payment limitation will not be less than applicable schedule of Medicare Part B for 2007, insurer was not allowed to apply MPPR to result in reimbursement of less than amount allowed under 2007 Medicare Part B fee schedule
STAND-UP MRI OF TALLAHASSEE, P.A., a/a/o Sheri Andrews, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-011308 COCE 51. March 20, 2019. Kathleen Mccarthy, Judge. Counsel: Howard W. Myones, Myones Legal, PLLC, Fort Lauderdale, and Justin Weinstein, Weinstein Legal, PLLC, Fort Lauderdale, for Plaintiff. Gregory Willis, Cole, Scott & Kissane, P.A., Plantation, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT AND GRANTINGPLAINTIFF’S AMENDED MOTION FOR FINAL SUMMARYJUDGMENT AND INCORPORATEDMEMORANDUM OF LAW
THIS CAUSE came before the Court on March 14, 2019 for hearing on Defendant’s Motion for Final Summary Judgment and the Plaintiff’s Amended Motion for Final Summary Judgment and Incorporated Memorandum of Law, and the Court, having reviewed the motions, heard argument, reviewed relevant legal authorities and been sufficiently advised in the premises, finds as follows:
This case involves the reimbursement of two (2) MRIS performed by the Plaintiff to Sheri Andrews as a result of injuries she sustained in a July 12, 2013 motor vehicle accident. There are no factual disputes in this case. Both parties have agreed that after the accident, occurred, Ms. Andrews received the two MRIs, the bills were timely submitted to State Farm and State Farm reimbursed the bills under the guise of using the Medicare Multiple Procedure Payment Reduction for diagnostic images. In doing so, State Farm used the 2007 Medicare Limiting Charge amounts and applied the 2013 version of the MPPR to the bills resulting in a 50% reduction to the lower technical component (TC) and a 25% reduction to the lower professional component (PC) for the two codes. The Defendant argues that this is the proper way to reimburse these bills under Florida Statute Section 627.736(5)a(1-5) and its 9810A policy. The Plaintiff disagrees and argued that the use of MPPR is impermissible as it results in payment lower than the amount allowed under §627.736(5)(a)1-3 and State Farm’s policy. For the purpose of this case, the Plaintiff does not dispute the Defendant’s ability to reimburse pursuant to the schedule of maximum charges found in §627.736(5)(a)1-5.
Fla. Stat. §627.736(5)(a)1-5 states, in pertinent part:
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).
– – –
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.
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.
State Farm’s 9810A Policy states, in pertinent part:
We will limit payment of Medical Expenses described in the Insuring Agreement of this policy’s No-Fault Coverage to 80% of a properly billed and documented reasonable charge, but in no event will we pay more than 80% of the following No-Fault Act “schedule of maximum charges” including the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers:
. . .
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).
. . .
For purposes of the above, 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 will 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.
State Farm argues that it is allowed to use the MPPR to reimburse the Plaintiff’s bills because subparagraph 3 of Fla. Stat. §627.736(5)(a) states that an insurer is not prohibited from using the coding policies and payment methodologies of the Center for Medicare and Medicaid services and their policy includes the language “including the use of Medicare coding policies and payment methodologies.” However, when interpreting an insurance contract, courts are “bound by the plain meaning of the contract’s text.” Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 at 157 quoting State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569 (Fla. 2011) [36 Fla. L. Weekly S469a]. “If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written.” Id. The PIP statute states that the fee schedule or payment limitation to be used when using the schedule of maximum charges may not be less than the allowable amount under the applicable schedule for 2007 Medicare Part B. State Farm’s policy goes one step further and clearly and unambiguously states that the applicable fee schedule or payment limitation used will notbe less than the allowable amount under the applicable schedule of Medicare Part B for 2007. This Court finds the Defendant’s attempt to argue that it is ultimately allowed to reimburse less than the amount allowed under the 2007 Medicare Part B fee schedule to be erroneous.
There is no factual issue in this case. State Farm used the 2013 MPPR methodology combined with the 2007 fee schedule amounts to eventually reimburse at an amount less than the allowable amount at the applicable fee schedule for Medicare Part B in 2007. However, 200% of the allowable amount for Medicare Part B in 2007 is the floor for reimbursement of PIP benefits pursuant to the permissive payment methodology.1 Because State Farm’s ultimate reimbursement was an amount less than 200% of the 2007 Medicare Part B fee schedule for the CPT codes at issue, it has breached its contract of insurance and owes the Plaintiff the difference between the amount allowed in 2007 and the amount it paid.
Therefore, the Defendant’s Motion is DENIED and the Plaintiff’s Motion is GRANTED.
Based on the foregoing findings, it is ORDERED AND ADJUDGED that final judgment be and the same is hereby entered in favor of the Plaintiff, STAND UP MRI OF TALLAHASSEE, P.A. A/A/O SHERI ANDREWS, against the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY in the amount of $501.46 in principal damages and $131.72 in prejudgment interest for a total amount of $633.18, which shall bear interest at the rate of 6.33% for which sum let execution issue forthwith. The court reserves jurisdiction to determine the amount of reasonable fees and costs upon filing of a timely motion.
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1“Logically, the limiting and permissive fee schedule found in section (5)(a)(2) provides the minimum coverage afforded under the No Fault Law.” Tomoka Diagnostics (Kellye McCall) v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 60a (Volusia County, Judge Sanders, Jr. October 5, 2011)(holding, under Kingsway, State Farm could be found to owe more than 200% of Medicare for 2007 but not less); All Family Clinic of Daytona Beach d/b/a Florida Medical Associates (a/a/o Briana Newby) v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 127a (Volusia County, Judge Feigenbaum, October 7, 2011)(“Once the PIP insurer crosses the proverbial Rubicon and uses permissive fee schedule methodology of Fla. Stat. 627.736(5)(a)2., then the minimum reimbursement a PIP insurer must pay an MRI provider is based on 200% of the schedule for 2007”); First Coast Medical Center, Inc. a/a/o Freddie Jacobs v. State Farm Mutual Automobile Ins. Co., 23 Fla. L. Weekly Supp. 250a (Duval County, Judge Shore, April 21, 2015)(“80% of 200% of the Medicare Part B participating fee schedule is the floor or the minimum that a PIP insurer can reimburse a provider for PIP claims in the State of Florida and in accordance with the No Fault Statute”); Health Diagnostics of Ft. Lauderdale f/k/a Damadian MRI in Pompano Beach PA, d/b/a Stand-Up MRI of Fort Lauderdale a/a/o John Winn v. USAA Casualty Insurance Company, 20 Fla. L. Weekly Supp. 292b (Broward County, Judge Deluca, December 3, 2012)(“200% of the allowable amount under the participating physicians schedule of Medicare Part B for 2007 sets the floor with respect to the minimum reimbursement”).
