28 Fla. L. Weekly Supp. 167a
Online Reference: FLWSUPP 2802COMPInsurance — Personal injury protection — Coverage — Medical expenses — Chiropractic services — Medicare fee schedule — PIP insurer is not entitled to 2% reduction in payment for chiropractic treatment implemented by Medicare where 2% reduction is specifically reserved only for claims that Medicare is required to reimburse
COMPREHENSIVE HEALTH CENTER, LLC., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2019-003075-SP-05, Section CC06. March 2, 2020. Luis Perez-Medina, Judge. Counsel: Theophilos G. Poulopoulos, The Schiller Kessler Group, PLC, Fort Lauderdale, for Plaintiff. Michael S. Walsh, Kubicki Draper, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT ANDDENYING DEFENDANT’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE came before this Court on cross Motions for Partial Summary Judgment, and this Court, having reviewed all of the Motions, Responses, Memoranda, Exhibits or Attachments filed, after reviewing all applicable Florida law and other applicable law provided to this Court, after hearing argument from the parties’ respective counsels, reviewing the entirety of the record, and having been sufficiently advised in the premises, it is hereby:
ORDERED and ADJUDGED, as follows:
The Plaintiff’s Motion for Partial Summary Judgment as to CPT Code 98940 is GRANTED and Defendant’s Motion for Partial Summary Judgment as to CPT Code 98940 is DENIED.
BACKGROUND
This action involves Plaintiff’s claim against Defendant, State Farm Mutual Automobile Insurance Company, (State Farm) for Personal Injury Protection (PIP) benefits pursuant to an assignment of benefits for chiropractic manipulations. Plaintiff, a South Florida Medical Provider, contends in its Motion for Partial Summary Judgment that Defendant improperly reduced the statutorily required payments for chiropractic manipulation represented by CPT code 98940 by 2% for the year 2014. Defendant argues that the Florida No-Fault Statute (PIP statute) as well as State Farm’s policy permits the 2% reduction.
Defendant alleges that the 2% fee reduction is calculated into the Centers for Medicare and Medicaid Services (CMS) payment files. According to the 2014 Payment File, CPT code 98940 for Miami-Dade County equals $28.81 which at 200% equals $57.62.
Plaintiff contends that the CMS payment file, relied on by Defendant to pay the chiropractic manipulations billed in this case, is not the same “fee schedule” mentioned in the PIP statute. Plaintiff argues that the appropriate reimbursement rate for CPT code 98940 under Medicare Part B Physician Fee Schedule for Miami-Dade County is $29.40 which at 200% equals $58.80.
ISSUE
This case involves an issue of statutory construction that can be decided as a matter of law. The sole issue for determination by this Court is what constitutes the “allowable amount under the participating physicians fee schedule of Medicare Part B” as provided in Florida Statute § 627.736(5)(a)(1)(f).
ANALYSIS
“[W]hen the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plaint and obvious meaning.” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). “When a statute is clear, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) [29 Fla. L. Weekly S149a]. “Courts are not to add, subtract, or distort the words the Legislature has written.” Anderson Columbia v. Brewer, 994 So. 2d 419, 420 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2473a]. Statutory language that is plain and unambiguous must be read as written, “for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996) [21 Fla. L. Weekly S96a]. “If the statutory wording is unambiguous, then judicial inquiry is complete.” Klonis v. State, 776 So. 2d 1186, 1189 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D2635a].
A. Florida’s PIP Statute
Florida Statute section 627.736, entitled “Required Personal Injury Protection Benefits; Exclusions; Priority; Claims,” contains section (5)(a), which states:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered . . . . However, such a charge may not exceed the amount the person or institution customarily charges for like services or supplies. In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
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:
(l) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).
Florida Statute § 627.736(5)(a)(1) (emphasis added).
State Farm’s policy limits PIP payments of medical expenses to no more than 80% of the “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:” State Farm’s Certified Policy Record for Policy Form 9810A, March 12, 2019, 16.
B. Participating Physicians Fee Schedule of Medicare Part B
While the definition of “allowable amount under the participating physicians fee schedule of Medicare Part B,” (PFS) is not defined under Florida’s PIP statute, its definition can be derived by looking at the federal code and the regulations pertaining to Medicare under the Social Security Act.
“Since January 1, 1992, Medicare has paid for physicians’ services under section 1848 of the Social Security Act (the Act), “Payment for Physicians’ Services.” The Act requires that payments under the physician fee schedule (PFS) are based on national uniform relative value units (RVUs) based on the relative resources used in furnishing a service. Section 1848(c) of the Act requires that national RVUs be established for physician work, practice expense (PE), and malpractice expense.
74 Fed. Reg. 226 (Nov. 25, 2009), 61741 (emphasis added).
The federal statute establishing the participating physicians fee schedule of Medicare Part B is 42 U.S.C. § 1395w-4. Payment of services under the fee schedule is determined by the product of the “relative value for the service,” the “conversion factor” for the year, and the “geographic adjustment factor” for the service for the fee schedule area. 42 U.S.C. § 1395w-4(b)(1) (emphasis added). To determine the relative value for physicians’ services, the federal code divides the services into three components; (A) the work component, (B) the practice expense component, and (C) the malpractice component. 42 U.S.C. § 1395w-4(c)(1). The Secretary of the Department of Health and Human Services (the Secretary) is tasked with developing “a methodology for combining the work, practice expense, and malpractice relative value units, determined under subparagraph (c), for each service in a manner to produce a single relative value for that service.” 42 U.S.C. § 1395w-4(c)(2)(A)(i) (emphasis added). Subsection (b)(1) of the federal code instructs the Secretary to “establish, by regulation, fee schedules that establish payment amounts for all physicians’ services furnished in all fee schedule areas.” 42 U.S.C. § 1395w-4(b)(1); All Family Clinic of Daytona Beach, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1297, 1299 (S.D. Fla. 2010). Pursuant to a final rule published by the Department of Health and Human Services, “payments under the physician fee schedule (PFS) are based on the national uniform relative value units (RVUs) based on the relative resources used in furnishing a service. 74 Fed. Reg. 226 (Nov. 25, 2009), 61741.
C. The 2% Reduction in the Payment File
On November 25, 2009, the Department of Health and Human Services (DHHS), which is the supervising branch of CMS, published is annual Final Rule in the Federal Register. 74 Fed. Reg. 226 (Nov. 25, 2009). Under the Rule, Medicare implemented a 2% reduction for certain chiropractic fee codes (CPT Codes 98940, 98941, and 98941) “for calendar years 2010 through 2014.” Id. at 61927. The reason for the 2% reduction was to recoup $50 million in Medicare expenditures over a 5-year period, at $10 million per year, starting in year 2010. Id. According to the Rule, the 2% reduction would not be reflected in the RUVs so as not to affect the physician’s fee schedules. The 2% reduction only applied to providers who directly billed Medicare for reimbursement of their claims.
[W]e are reflecting this reduction only in the payment files used by the Medicare contractors to process Medicare claims rather than through adjusting the RVUs. Avoiding an adjustment to the RVUs would preserve the integrity of the PFS, particularly since many private payers also base payment on the RVUs. The RVUs published in Addendum B and posted on our Web site will not show this reduction but will be annotated to state that the reduction resulting from the chiropractic demonstration is not reflected in the RVUs.
74 Fed. Reg. 226 (Nov. 25, 2009), 61927. Therefore, DHHS applied the 2% reduction to the payment files, used by Medicare providers, but did not change the RUVs which forms the basis for the PFS pricing for each CPT code and is used by private payers to calculate their reimbursement levels.
In the present case Defendant is asking the Court to adopt a reimbursement methodology not contemplated by the plain language in the federal code or regulation. Pursuant to 42 U.C.C. § 1395w-4, the Secretary of the Department of Health and Human Services establishes, by regulation, the fee schedules for all physicians’ services furnished in all fee schedule areas. The participating physician fee schedules for all CPT codes are calculated using the RVUs factors, not the CMS payment files. Under the regulation, the 2% reduction was purposely excluded from the RUVs as a way of maintaining the integrity of the PFS. Defendant is therefore asking this Court to calculate the PFS codes using the CMS payment files rather than the method outlined under the federal code and regulation. This Court declines Defendant’s invitation to “add, subtract, or distort the words” of the federal code or Florida’s PIP statute. Brewer, 994 So. 2d at 420.
Based upon the forgoing, Defendant could not take advantage of the 2% reduction in fee payment by Medicare since this reduction was not reflected in the RUVs which forms the basis for the reimbursement rates for the CPT codes under Medicare part B participating physician fee schedule. As a result, Plaintiff is entitled to prevail on this issue. The appropriate reimbursement rate for CPT code 98940 under Medicare Part B participating physicians fee schedule for Miami-Dade County is therefore, $29.40 which at 200% equals $58.80.
Accordingly, it is hereby,
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED. Defendant Motion for Partial Summary Judgment is DENIED.
