28 Fla. L. Weekly Supp. 82a

Online Reference: FLWSUPP 2801MCCUInsurance — Personal injury protection — Coverage — Medical expenses — Nurse practitioners — PIP insurer is not entitled to rely upon Medicare’s 15% reduction to calculate amount of PIP benefits payable for non-hospital non-emergency health care services provided by nurse practitioner — 2012 amendment to statute did not in any way alter or amend substantive requirements of first and second sentences of section 627.736(5)(a)(3) — Question certified whether a PIP insurer is authorized to rely upon Medicare’s “Nurse Practitioner (NP) and Clinical Nurse Specialist (CNS) Services Payment Methodology” to calculate amount of PIP benefits payable for health care services provided by a nurse practitioner to a PIP insured

CRESPO & ASSOCIATES, P.A., as assignee of D. McCulley, Plaintiff, v. USAA SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 17-CC-012137, Division U. May 1, 2020. Frances M. Perrone, Judge. Counsel: David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa; Anthony T. Prieto, Morgan & Morgan, Tampa; and Christopher P. Calkin and Mike N. Koulianos, The Law Offices of Christopher P. Calkin, P.A., Tampa, for Plaintiff. Scott W. Dutton, and Jesse C. Groves, Dutton Law Group, P.A., Tampa, for Defendant.

FINAL JUDGMENT ON COMPETING MOTIONSFOR SUMMARY JUDGMENT

THIS CAUSE came before this Court on January 23, 2020, concerning: (1) “Defendant’s Motion for Final Summary Judgment” dated August 12, 2019, and (2) “Plaintiff’s Motion for Final Summary Judgment, or Partial Summary Judgment, Concerning Nurse Practitioner Payment Guidelines” dated January 2, 2020. The Court, having considered the parties’ respective motions, arguments at the hearing, supplemental authorities, and proposed orders, as well as the record, and being otherwise advised in the premises,

ORDERS AND ADJUDGES as follows:

1. The parties agree that the material facts of this case are undisputed, and the only remaining legal issue is whether the Defendant is authorized to rely upon Medicare’s “Nurse Practitioner (NP) and Clinical Nurse Specialist (CNS) Services Payment Methodology” to calculate the amount of personal injury protection (“PIP”) benefits payable for health care services provided by a nurse practitioner to a PIP insured. See, “Defendant’s Motion for Final Summary Judgment,” Exh. 1 (“Medicare Claims Processing Manual,” Ch. 12 at §120); and Exh. 2 (“Medicare Information for Advanced Practice Registered Nurses, Anesthesiologist Assistants, and Physicians Assistants”).

2. This Court previously decided this same legal issue in Crespo & Associates, P.A., a.a.o. Ben Scoi v. Geico Gen. Ins. Co., 24 Fla. L. Weekly Supp. 721a (Fla. Hillsborough Cnty. Ct. Nov. 23, 2016). In Scoi, this Court held that insurers must calculate benefits payable for health care services provided by a nurse practitioner at the amount set forth in Section 627.736(5)(a)1.f(I), Florida Statutes for “all other” non-hospital non-emergency services, which is 80% of 200% of the participating physicians fee schedule of Medicare Part B.

3. Like the defendant insurance company in Scoi, the Defendant in this case paid 80% of 85% of 200% of the participating physicians fee schedule amount for the services rendered by the Plaintiff’s nurse practitioner, which is 15% less than the amount payable under Section 627.736(5)(a)1.f(I). As in Scoi, the Defendant contends this 15% reduction is used by Medicare, and is therefore, authorized by the last sentence of Section 627.736(5)(a)3, Florida Statutes. As in Scoi, this Court disagrees, and concludes that a PIP insurer is not authorized to rely upon Medicare’s 15% reduction to calculate the amount of PIP benefits payable for non-hospital non-emergency health care services provided by a nurse practitioner to a PIP insured. See also, Coastal Wellness Centers, Inc. v. Progressive American Ins. Co., 309 F. Supp.3d 1216, 1221 (S.D. Fla. 2018) (PIP insurers are not authorized to rely on Medicare’s 2% reduction from participating physicians fee schedule to reimburse chiropractic manipulation claims); Coastal Wellness Centers, Inc. v. State Farm Mut. Auto. Ins. Co., 2018 WL 3089321, *4 (S.D. Fla. 2018) (same).

4. As in Scoi, this Court acknowledges that Section 627.736(5)(a)3 was amended in 2012, to insert a new third sentence. The amendment was as follows:

3.4.

 Subparagraph 1. 2

 [of Section 627.736(5)(a)] 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 1.2

, must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider is would be

 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.

Ch. 2012-197, §10, Laws of Fla. (2012) (strike-through and underline in original). In summary, the 2012 amendment to subsection (5)(a)3 added a new third sentence, but left the first and second sentences unchanged in all material respects (except for renumbering the cross-references and a minor grammatical change). So, it is incontrovertible that the 2012 amendment did not in any way alter or amend the substantive requirements of the first and second sentences of subsection (5)(a)3.

5. As explained in Scoi, the Defendant’s argument incorrectly gives no meaning or effect to the second sentence of Section 627.736(5)(a)3, and no meaning or effect to the entire schedule of maximum charges method provisions of Section 627.736(5)(a)1 and 2. “Statutory language is not to be assumed superfluous; a statute must be construed so as to give meaning to all words and phrases contained within that statute.” Scoi, 24 Fla. L. Weekly Supp. 721a at ¶12-13, citing, Terrinoni v. Westward Ho!, 418 So.2d 1143, 1146 (Fla. 1st DCA 1982); Atl. Coast Line R. Co. v. Boyd, 102 So. 2d 709, 712 (Fla. 1958); Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003) [28 Fla. L. Weekly S119a]; Unruh v. State, 669 So.2d 242 (Fla.1996) [21 Fla. L. Weekly S104a]; State v. Goode, 830 So.2d 817, 824 (Fla.2002) [27 Fla. L. Weekly S860a]; Finlayson v. Broward County, 471 So.2d 67, 68 (Fla. 4th DCA 1985). See also, Coastal Wellness, 309 F. Supp.3d at 1221 (PIP statute must be given its plain and obvious meaning); Coastal Wellness, 2018 WL 3089321 at *4 (same). Therefore, subsection (5)(a)3 does not expressly (and cannot be interpreted to) allow PIP insurers to pay even lower benefits than the “minimum amount” indicated by the fee schedules listed in subsection (5)(a)1.a through f or the 2007 versions of those fee schedules under subsection (5)(a)2. See, Nationwide Mut. Ins. Co. v. AFO Imaging, Inc., 71 So.3d 134, 137-138 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b] (the fee schedule method is “to be utilized in computing the minimum amount” that PIP insurers are statutorily allowed to remit). Otherwise, the result would be the total evisceration of subsections (5)(a)1.a through f and (5)(a)2, and the second sentence of subsection (5)(a)3.

6. As explained in Scoi, if the new third sentence of subsection (5)(a)3 is truly intended to allow a PIP insurer to apply any Medicare coding policy or payment methodology, that would mean a PIP insurer can step into the shoes of Medicare, act like Medicare, by-pass subsections (5)(a)1.a through f and (5)(a)2 altogether, and simply pay 80% of 100% (instead of 80% of 200%) of the Medicare participating physicians fee schedule amount, because that is obviously a Medicare payment methodology; or a PIP insurer could pay 80% of 95% of the Medicare physicians fee schedule amount to non-participating physicians, because that is also a Medicare payment methodology. Similarly, a PIP insurer could also rely on the Medicare payment methodology which imposes a 2% reduction on chiropractic manipulation claims. Those results would be directly contrary to subsections (5)(a)1.a through f and (5)(a)2, and would render them meaningless. See, Coastal Wellness, 309 F.Supp.3d at 1221; Coastal Wellness, 2018 WL 3089321 at *4. Paying a lower amount for services rendered by a nurse practitioner would also violate the second sentence of subsection (5)(a)3, which expressly requires PIP insurers to “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.” In this case, the Defendant does not contend that the Plaintiff’s nurse practitioner provided any services that were beyond those scope of her license.

7. The only way to give meaning and effect to all requirements of subsections (5)(a)1, 2 and 3, is to hold that subsections (5)(a)1 and 2 establish the minimum amount payable under the schedule of maximum charges method, but under subsection (5)(a)3, a PIP insurer is also permitted to rely on Medicare coding policies and payment methodologies, including applicable modifiers, as long as such coding policies, payment methodologies, and applicable modifiers are not “utilization limits,” and as long as they do not otherwise result in reimbursement that is less than the minimum amount otherwise payable under (5)(a)1, (5)(a)2, and the second sentence of (5)(a)3. See, Scoi, 24 Fla. L. Weekly Supp. 721a at ¶13.

8. Notably, each subparagraph of (5)(a)1.a through f corresponds to different types of services provided by different types of health care providers. Subparagraph (5)(a)1.a applies only to emergency transport and treatment providers, and they are entitled to reimbursement of 80% of 200% “of Medicare” — without any reference to a particular Medicare fee schedule or other specific payment limitation. In contrast, however, subparagraphs (5)(a)1.b and c identify a fixed percentage of the “usual and customary” charges for emergency services provided at hospitals, and subparagraphs (5)(a)1.d, e, and f each identify a fixed percentage of a particular Medicare fee schedule for the particular types of the health care providers and services described therein. Because (5)(a)1.a contemplates that emergency transport and treatment providers must be paid 80% of 200% of whatever Medicare would pay, then (5)(a)3 clearly allows the PIP insurer to apply any and all Medicare coding policies, payment methodologies, and applicable modifiers that Medicare would apply to services rendered by emergency transport and treatment providers. In contrast, however, the other types of health care providers described in (5)(a)1.d, e, and f are entitled to payment of 80% of 200% of the particular Medicare fee schedules specifically identified in (5)(a)1.d, e, and f, respectively.¹ Nurse practitioners who provide non-hospital non-emergency services fall under the “all other” category of (5)(a)1.f(I), and therefore, under that subsection, a PIP insurer must pay them 80% of 200% of the “participating physicians fee schedule of Medicare Part B,” — not 80% of 200% of whatever Medicare would pay.

9. Under the last sentence of (5)(a)3, Medicare coding policies, payment methodologies, and applicable modifiers can be used for services rendered by the nurse practitioner for purposes of identifying “the appropriate amount of reimbursement for medical services, supplies, or care,” but that “appropriate amount of reimbursement” must clearly correspond to the particular fee schedule and percentages listed in the schedule of maximum charges for the particular type of “medical services, supplies, or case” listed in (5)(a)1.a through f. In this case, the Medicare coding policies, payment methodologies, and applicable modifiers cannot be used to reduce the amount of reimbursement below the fixed minimum fee schedule amount listed in (5)(a)1.f(I), because that would nullify the plain meaning of (5)(a)1.f(I), (5)(a)2, and the second sentence of (5)(a)3.² The end result of such an interpretation would be that PIP insurers would be able to reimburse all health care providers using the same exact (5)(a)1.a standard that applies only to emergency transport and treatment providers, who must be paid 80% of 200% of whatever Medicare would pay. Clearly, that is not what the Florida Legislature intended when it carefully selected different payment limitations, fee schedules, and percentages for each of the different types of health care providers and medical services which are separately enumerated in subsections (5)(a)1.a through f.

10. In this case, the Defendant did not comply with its own interpretation of Section 627.736(5)(a)3. Like the defendant insurance company in Scoi, the Defendant in this case did not simply use the same payment methodology that Medicare would have used for a nurse practitioner’s services and did not pay the same amount that Medicare would have paid (i.e., 80% of 85% of the participating physicians fee schedule amount). Instead, the Defendant paid 80% of 85% of 200% of the participating physicians fee schedule amount. Thus, the Defendant’s own actions confirm the Defendant does not interpret subsection (5)(a)3 to allow PIP insurers to pay whatever amount that Medicare would have paid, irrespective of Section 627.736(5)(a)1.f(I), (5)(a)2, and the second sentence of (5)(a)3. Instead, the Defendant apparently recognized the incongruency of such an approach, and constructed its own payment scheme which reimbursed the Plaintiff at double the amount that Medicare would have paid, which is the standard that applies only to emergency transport and treatment providers under subsection (5)(a)1.a. Reading all provisions of subsections (5)(a)1.a through f, (5)(a)2, and (5)(a)3 in harmony with each other and giving meaning to all of those subsections, avoids an absurd result which would allow PIP insurers to pay all health care providers less than the minimum amount required by those subsections, by using the standard that applies only to emergency transport and treatment providers under subsection (5)(a)1.a.

11. Based on the foregoing, “Defendant’s Motion for Final Summary Judgment” is DENIED, and the “Plaintiff’s Motion for Final Summary Judgment, or Partial Summary Judgment, Concerning Nurse Practitioner Payment Guidelines” is GRANTED.

12. The Court has been advised the parties agree the amount of the 15% reduction applied by the Defendant is $39.79. Accordingly, final judgment is hereby entered in favor of the Plaintiff and against the Defendant. The Plaintiff is hereby awarded and shall recover from the Defendant the sum of $39.79, plus prejudgment interest accruing since September 15, 2016 through the date of this final judgment, plus post-judgment interest, at the applicable interest rates set by the State of Florida’s Chief Financial Officer pursuant to Section 55.03, Florida Statutes, until the judgment is paid. For which sum, let execution issue.

13. Pursuant to Florida Rule of Appellate Procedure 9.160 and Section 34.017, Florida Statutes, this Court hereby certifies to the Florida Second District Court of Appeal that this final order and the legal question decided herein (i.e., whether a PIP insurer is authorized to rely upon Medicare’s “Nurse Practitioner (NP) and Clinical Nurse Specialist (CNS) Services Payment Methodology” to calculate the amount of PIP benefits payable for health care services provided by a nurse practitioner to a PIP insured) have statewide application, are matters of great public importance, and will affect the uniform administration of justice.

14. The Court hereby reserves jurisdiction to determine claims for reasonable attorneys’ fees and costs.

__________________

¹Under (5)(a)1.a, emergency transport and treatment providers must be paid 80% of 200% “of Medicare.” In stark contrast, under (5)(a)1.d, non-emergency hospital inpatient services must be paid 80% of 200% “of the Medicare Part A prospective payment applicable to the specific hospital” — not 80% of 200% of whatever Medicare would pay. Similarly, under (5)(a)1.e, non-emergency hospital outpatient services must be paid 80% of 200% of “the Medicare Part A Ambulatory Payment Classification for the specific hospital” — not 80% of 200% of whatever Medicare would pay.

²Because nurse practitioners fall under the “all other” services category of (5)(a)1.f(I), they must be paid 80% of 200% of the “participating physicians fee schedule of Medicare Part B” — not 80% of 200% of whatever Medicare would pay (like emergency transport and treatment providers). Under (5)(a)2, that fee schedule amount cannot be less than it was in 2007. Under the second sentence of (5)(a)3, the nurse practitioner must be reimbursed regardless of Medicare “restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.” All of these interwoven provisions must be read in harmony and given meaning — not ignored and given no meaning.