27 Fla. L. Weekly Supp. 209a
Online Reference: FLWSUPP 2702BARTInsurance — Personal injury protection — Coverage — Medical expenses — Amount — Medicare fee schedule — Insurer cannot cap its payment of medical service by using workers’ compensation fee schedule where, although allowable amount for service requires a determination on an individualized basis by Medicare contractor, the service at issue is reimbursable under Medicare Part B — If insurer cannot determine an amount to be paid under Medicare Part B, then the statutory default mechanism is to resort to a “reasonableness” determination — Question certified: When a PIP insurer has elected the Medicare fee schedule limitation permitted by Florida Statute §627.736(5)(a)1, which provides that the insurer may limit reimbursement to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B,” and the “allowable amount” under the fee schedule is not specified in a general amount but instead must be determined on an individualized basis, is the PIP insurer entitled to limit the reimbursement to 200 percent of the workers’ compensation fee schedule?
UNIVERSITY HEALTH CENTER PA, (a/a/o Benjamin Bartlett), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-9096 COCE 53. May 15, 2019. Robert W. Lee, Judge. Counsel: Christina Kalin, Plantation, for Plaintiff. Michael Walsh, Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT AS TOPROPER PAYMENT OF FEE SCHEDULE AMOUNTSandCERTIFICATION TO THE FOURTH DISTRICT COURT OFAPPEAL AS A QUESTION AFFECTING THE UNIFORMADMINSTRATION OF JUSTICE, PURSUANT TO FLA. STAT.§34.017(1)(b), RULES 9.030(b)(4) and 9.160, FLA. R. APP. P.1
THIS CAUSE came before the Court for consideration of the Defendant’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Background: This case involves an issue currently arising in PIP cases throughout the State. Currently, there is no controlling precedent on the horizon. In light of the five-year statute of limitations pertaining to PIP cases, as well as the continuing practice of PIP parties to challenge legal rulings even when a Circuit appellate decision is issued,2 this Court respectfully submits that this is an issue that the District Court of Appeal could resolve and save a substantial amount of judicial labor in the courts below. See State Farm Mutual Automobile Ins. Co. v. CC Chiropractic LLC, 245 So.3d 755, 760 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D583a] (reminding county courts that the certification process is a method to seek precedent needed for the orderly administration of justice on issues that have statewide application).
This case involves a relatively narrow issue: when a particular medical service is payable under Medicare, but requires a determination on an individualized basis by the Medicare contractor for an allowable amount to be determined, may the PIP insurer instead resort to the workers’ compensation fee schedule to limit the amount it pays for that service. In this case, the Plaintiff has billed for CPT code 97039, a non-specific code for therapy. The service rendered in this case was laser therapy, for which there is no specific Medicare code. Under the “Medicare Physician Fee Schedule Database,” CPT code 97039 is a “Status C” code which is payable under Medicare.3 To determine the amount allowed, the service is to be “priced by each contractor. CGS establishes RVUs and payment amounts for these services, generally on an individual basis, based on review of documentation (such as operative reports).”4 Importantly, in this case, State Farm is not asserting that the laser therapy was not medically necessary or not related to the automobile accident.
This PIP case is in a trial posture, with jury trial scheduled for the week of June 4, 2019. Per the parties’ stipulations in their joint pretrial stipulation and as made at the pretrial conference, there is, as noted, no issue in this case whether any medical service is related to the accident or medically necessary. Rather, the only issue is whether State Farm paid the correct amount for medical services. Further, at the hearing on the instant Motion, the Plaintiff further stipulated that the only remaining issue involves a single medical service, CPT code 97039, which was billed twice during the course of treatment. State Farm paid the charge based on the workers’ compensation fee schedule. The Plaintiff contends that State Farm improperly used the workers’ compensation fee schedule to cap the amount it would pay.
Under Florida PIP law, an insurer must pay a medical charge that is “reasonable,” as long as the service is medically necessary and related to the accident. Fla. Stat. §627.736(1)(a) (2017). However, as pertains to the issues in this case, an insurer is permitted to limit its reimbursement by using a “schedule of maximum charges,” which is equivalent to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B.” Id. §§627.736(5)(a)1 & 5(a)1f(I). If, however, the medical service “is not reimbursable under Medicare Part B,” then “the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation.” Id. §627.736(5)(a)1. Therefore, if a medical service is “reimbursable under Medicare Part B,” an insurer cannot cap its payment by using the workers’ compensation fee schedule. See Allstate Fire & Cas. Ins. Co. v. Perez, 111 So.3d 960, 963 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D915a].
In this case, the laser therapy service at issue, represented by CPT code 97039, is “reimbursable under Medicare Part B.” As a result, while it may be a bit more challenging for an insurer to determine what the “allowable amount” is for this particular service under the Medicare Part B participating physicians fee schedule, it is improper to simply resort to workers’ compensation to determine that amount. See Perez, 111 So.3d at 964. Moreover, if an insurer cannot determine an amount to be paid under Medicare Part B, then the default mechanism in the statute is to resort to a “reasonableness” determination. As noted by the Second District Court of Appeal, there is only one analysis under the PIP statute for determining what amount to pay — that is, whether the charge is reasonable. State Farm Mutual Automobile Ins. Co. v. MRI Associates of Tampa, Inc., 252 So.3d 773, 778 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D1149a]. However, if properly elected, an insurer may limit its reimbursement to 200 percent of the Medicare Part B participating physicians fee schedule. If the insurer does not have the right to resort to the workers compensation fee schedules to limit its reimbursement, as it does not in this case, then it must pay a reasonable amount if it cannot readily determine the amount due under Medicare Part B.5 Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Final Summary Judgment is DENIED.
However, because of the high volume of cases pending with this issue throughout the State of Florida, and the lack of a controlling precedent that would ameliorate the substantial amount of judicial labor given to this issue, the Court certifies the following question to the Florida Fourth District Court of Appeal as a question affecting the uniform administration of justice:
When a PIP insurer has elected the Medicare fee schedule limitation permitted by Florida Statute §627.736(5)(a)1, which provides that the insurer may limit reimbursement to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B,” and the “allowable amount” under the fee schedule is not specified in a general amount but instead must be determined on an individualized basis, is the PIP insurer entitled to limit the reimbursement to 200 percent of the workers’ compensation fee schedule?
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1Pursuant to Rule 9.160(b), any appeal of the Court’s decision in this matter must be filed in the Fourth District Court of Appeal, and not the Circuit Court.
2See J. Sebastien Rogers, The Chasm in Florida Appellate Law: Intra-Circuit Conflicting Appellate Decisions, Fla. B.J., Apr. 2018, at 52-55.
3See 2015 Bundled, Inactive, and Non-Payable Codes for 2015: Medicare Physician Fee Schedule Database, attached as Exhibit A to Affidavit of Dr. Eric Brock Snider, M.D., filed by Plaintiff under Plaintiff’s Notice of Filing under e-filing #89279224, docketed in the trial court on May 9, 2019 [hereinafter 2015 Codes].
4See 2015 Codes, supra note 3, at 3 (explaining what constitutes a Status C code). CPT code 97039 is listed in column 1 of page 6.
5The Court notes that this is not a situation in which a medical service is not reimbursable under either Medicare Part B or workers’ compensation, in which case the insurer would be absolved from paying it. Fla. Stat. §627.736(5)(a)1. Rather, the medical service in this case represented by CPT code 97039 is in fact reimbursable under Medicare Part B.
