26 Fla. L. Weekly Supp. 409a
Online Reference: FLWSUPP 2605COLEInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that statutory fee schedules may be used in determining how charges are paid clearly and unambiguously elects to limit reimbursement to statutory fee schedules — Multiple Procedure Payment Reductions is payment methodology, not utilization limit prohibited by PIP statute — Where medical provider billed charge at less than 200% of allowable amount under fee schedule, insurer properly paid 80% of amount billed
ATLAS INJURY CENTER INC. a/a/o Malcolm King Cole, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 17-020853-SP-05 (04), Civil Division. July 20, 2018. Alexander S. Bokor, Judge. Counsel: Dylan Shore, Kevin W. Whitehead, P.A., Miami, for Plaintiff. Albert J. Sabates, Progressive PIP House Counsel, Medley, for Defendant.
ORDER GRANTING DEFENDANT’SMOTION FOR FINAL SUMMARY
THIS CAUSE having come before the Court on June 27, 2018, pursuant to Defendant’s Motion for Final Summary Judgment, and the Court having reviewed the file, affidavits, evidence, pleadings and motions; having considered the arguments of Counsel and Memoranda of Law submitted by the parties; and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:FINDINGS OF FACT
1. Malcolm King Cole allegedly sustained injuries in an automobile accident on January 30, 2017. At the time of the accident, Mr. Cole was insured by an automobile insurance policy issued by Progressive on January 19, 2017, with effective dates of coverage from January 19, 2017 through July 19, 2017. The policy contract that governs this case is Form 9611A FL (07/13).
2. On November 27, 2017, Plaintiff filed a two count Complaint for Violation of Florida section 627.736 and Breach of Contract alleging that Defendant failed to pay all Personal Injury Protection benefits (PIP) owed (specifically demanding $5,000.36). On May 10, 2018, this Court dismissed Count I, Violation of Florida section 627.736, of Plaintiff’s Complaint.CONCLUSIONS OF LAW
The issues involved in the underlying hearing/motion are: A) Whether Defendant Progressive’s policy of insurance properly incorporates the schedule of maximum charges via clear and unambiguous policy language, thus meeting the simple notice requirements of Florida section 627.736(5)(a)5; B) Whether Florida section 627.736(5)(a)3 and the Defendant’s policy of insurance allow for the application of the Multiple Procedure Payment Reductions (MPPR) rule; and C) Whether the Defendant properly applied MPPR to Plaintiff’s charges. Each issue will be addressed below in turn.
A. Progressive’s Incorporation of the Fee Schedule Limitation
Plaintiff argues that Progressive’s policy is ambiguous. Plaintiff alleges that this language creates an impermissible hybrid. Plaintiff’s argument rested upon the following language contained in Progressive’s 9611A policy, defining “medical benefits” as follows:
80 percent of all reasonable expenses incurred for medically necessary medical, surgical, xray, dental and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital and nursing services. Medical benefits only include: 1) services and care received within the initial 14 days after the motor vehicle accident, or 2) follow up services and care received beyond the initial 14 days after the motor vehicle accident if services and care has been previously received within the initial 14 days after the motor vehicle accident, and a referral for more services and care have been provided by a statutorily authorized provider, and the follow up services and care are consistent with the underlying medical diagnosis. Medical benefits do not include massage, as defined in FL. St. 480.033, or acupuncture, as defined in FL. St. 457.102, regardless of the person, entity or licensee providing the massage or acupuncture, and a licensed massage therapist or licensed acupuncturist will not be reimbursed for medical benefits.
Progressive’s 9611A policy also specifically states:
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:
. . .
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
(2) 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.
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. 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 may not be less than the allowable amount under the applicable schedules of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
Progressive’s 9611A policy also specifically states:
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 reduce any payment to a medical provider under this Part II(A) by any amounts we deem to be unreasonable medical benefits. However, the medical benefits shall provide reimbursement only for such services, supplies and care that are lawfully rendered, supervised, ordered or prescribed.
The Court finds that Progressive’s policy is clear and concise. There is no ambiguity. Progressive’s policy meets the “simple notice” requirement set forth in Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], reh’g denied, SC15-2298, 2017 WL 1130950 (Fla. Mar. 27, 2017). Progressive’s policy provides notice that the fee schedules referenced in Florida section 627.736(5)(a)(1)(a through f) and 627.736(5)(a)(3) may be used in determining how charges are paid under the PIP portion of the policy. Further, the policy places the insured on notice that Progressive will not pay less than the 2007 Medicare Fee Schedule rate. In the instant case, Plaintiff’s bills were never paid below the 2007 floor established by Florida section 627.736(5)(a)2.
Plaintiff’s argument that Progressive’s Policy Form 9611A is ambiguous because it presents a hybrid payment methodology fails. Plaintiff contends that Defendant’s policy creates ambiguity regarding its intent to use the fee schedules. Plaintiff further contends that Defendant’s policy allows Defendant to use a fact-based analysis to determine how to pay Plaintiff’s charges. However, this argument fails pursuant to the Florida Supreme Court’s ruling in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (“A PIP policy cannot contain a statement that an insurer will not pay eighty percent of reasonable charges because no insurer can disclaim the PIP statute’s reasonable medical expenses coverage mandate . . . . Further, a PIP policy cannot state that the insurer will calculate benefits solely under the Medicare fee schedules contained within section 627.736(5)(a)(2) because the Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive payment methodology.”). Accordingly, this Court finds that Progressive’s Insurance Policy clearly and unambiguously provides notice that Defendant will pay no more than 80% of the schedule of maximum charges.
B. Application of Multiple Procedure Payment Reductions (MPPR)
In 2012, the Florida Legislature amended Florida section 627.736. The 2012 amendments made one change specific to the previous version of the statute’s reimbursement obligations and entitlements. The new version of Florida section 627.736(5)(a)3 now specifically indicates that payment methodologies under Medicare Part B can be applied by insurers when issuing reimbursement to providers under PIP, provided that the payment methodology is not a utilization limit.
Defendant asserts that MPPR, as its name implies, is a payment methodology. Defendant contends that MPPR does not prohibit services and care in any way. Defendant presented this Court with Federal regulatory history documents, including Federal Register Vol. 75, No. 228, November 29, 2010; and Department of Health and Human Services, [CMS-1590-FC; pages 157-158]. These documents support Defendant’s contention and demonstrate that MPPR was (1) implemented to appropriately value codes, i.e., account for costs efficiencies and (2) is consistent with the Federal Government’s longstanding policy — as demonstrated by its application of MPPR and other payment methodologies, including the Multiple Surgery Reduction Rule (MSRR) — of appropriately pricing fee schedule codes and revisiting said codes occasionally pursuant to its obligations under Section 1848(c)(2)k of the Social Security Act.
This Court finds that MPPR is a payment methodology of the Federal Centers for Medicare and Medicaid Services (“CMS”). MPPR reduces the practice expense component of reimbursement pursuant to the Medicare Part B fee schedule for secondary procedure codes of selected codes performed on the same patient on the same day by the same provider regardless of the session or discipline. Specifically, MPPR identifies the primary procedure code — the code with the highest practice expense — and secondary procedure codes — codes with lower practice expenses — performed on the same patient on the same day. MPPR reduces the practice expense for the secondary codes to more appropriately value the secondary codes when calculating reimbursement under the Medicare Part B fee schedule. The MPPR only affects payment, not services or treatment. This Court agrees with Defendant’s position that Section 1848(c)(2)k of the Social Security Act is an extension of the fee schedule. This section was developed to identify misvalued codes under the fee schedule which led to the implementation of MPPR.
Plaintiff argued that MPPR is a utilization limit because a medical provider may not want to provide treatment if it knows it will be paid less. This Court rejects Plaintiff’s argument that the use of MPPR will cause a chilling effect as there is no record evidence in this case to support Plaintiff’s position. To the contrary, each and every CPT Code billed by Plaintiff in this case was reimbursed. Plaintiff’s theory connotes that the schedule of maximum charges itself would be a utilization limit. This notion would run afoul with the two most recent versions of the PIP statute effectively rendering the statutory language useless for every fee schedule would be deemed a utilization limit.
By definition, any cost containment measure, when applied to reimbursement for health care, results in a reduction of payment for a provider’s time and services — and as a result, may have some influence on the manner and method of treatment. This does not mean that such limitation on reimbursement deprives a patient of necessary treatment. Nor does it preclude a health care provider from utilizing necessary and reasonable care. If that were the Legislature’s purpose in its latest iteration of the PIP Statute, then no coding policy or payment methodology would be permissible. The Courts have clearly said that the use of such methodologies is permissible. See Geico v. Virtual Imaging, 141 So. 3d 147, 155 (Fla. 2013) [38 Fla. L. Weekly S517a]. Furthermore, according to the Rules and Regulations contained in the Federal Register, Vol. 75, page 73241 (Nov. 29, 2010), “[p]aying more appropriately for therapy services . . . will allow patients to receive more medically necessary therapy services before reaching the therapy cap.” This Court agrees with Progressive’s position that reducing the reimbursement for medical services means that the insured has less of a co-payment and would allow the patient to receive more treatment. MPPR in no way limits the patient’s right to receive services. If anything, it results in the patient being able to receive more therapy services. It does not limit the number of treatments or put a cap on the therapy services.
The Court is also persuaded by the decisions in South Florida Institute of Wellness & Rehab, LLC a/a/o Jennifer Trinidad v. Progressive Select Ins. Co., No. 15-SP-9135 (Fla. 11th Cir. Ct. Mar. 13, 2017) [26 Fla. L. Weekly Supp. 129a] (MPPR is a payment methodology and does not constitute a utilization limit as it does not limit the use, type or duration of services.); Quality Diagnostics and Rehabilitation Center, Inc. a/a/o Brito, Jose v. Progressive Express Ins. Co., No. 15-5514-SP-23 (Fla. 11th Cir. Ct. Oct. 13, 2016) (MPPR does not provide a limitation on the number of treatments or an outright bar to recovery under the Medicare Part B Fee Schedule, and is, therefore not a utilization limit. Medicare’s MPPR rule provides an allowable amount under Part B of Medicare physician’s fee schedule is and is a permissible payment methodology to determine appropriate amount of reimbursement for medical services pursuant to Fla. Stat. 627.736(5)(2)(a)(1)(f) and (3).”); SOCC, PL, a/a/o Youssef Assal v. Progressive American Ins. Co., No. 15-CC-015856 (Fla. 13th Cir. Ct. Apr. 18, 2016) [23 Fla. L. Weekly Supp. 857b] (Medical provider’s argument that MPPR is a utilization limit simply because it limits reimbursement would mean that any cost containment measure would result in a reduction of remuneration for the medical provider and as a result would have an influence on the manner and method of treatment.); Path Medical-Broward a/a/o Shanti Bryant v. Progressive Select Ins. Co., No. CONO15005212 (Fla. 17th Cir. Ct. Jun. 15, 2016) [24 Fla. L. Weekly Supp. 894a] (MPPR is a payment methodology and not a utilization limit.); Multicare Rehabilitation, LLC a/a/o Robert Rego v. Progressive Select Ins. Co., No. COCE14022054 (Fla. 17th Cir. Ct. Jan. 14, 2016) [24 Fla. L. Weekly Supp. 171a] (MPPR is a payment methodology and not a utilization limit, otherwise, the language added by the legislature would be meaningless.); AFO Imaging, Inc. a/a/ Asha Brown v. State Farm Mutual Auto. Ins. Co., No. 14-0888 (Fla. 13th Cir. Ct. Mar. 15, 2016) [24 Fla. L. Weekly Supp. 165b] (“MPPR does not limit the use or duration of services and does not prevent the insured from accessing any procedure. Rather it simply reduces payment based on the efficiencies achieved from furnishing multiple procedures in a single session on a single day.”); and Millennium Radiology, LLC a/a/o Angela Renteria v. State Farm Fire & Cas. Ins. Co., FLWSUPP2304RENT (Fla. 11th Cir. Ct. Aug. 11, 2015) [23 Fla. L. Weekly Supp. 360a] (MPPR is a payment methodology.).
Based on the record in this case, including the evidence presented, legal memoranda, and arguments presented by both parties, the Court finds that MPPR is a payment methodology and not a utilization limit. Therefore, this Court finds that Florida section 627.736 allows Defendant to rely on MPPR in reimbursing Plaintiff in this case.
Additionally, Defendant’s policy of insurance clearly allows Defendant to rely on MPPR. Relevant portions of Defendant’s 9611A policy state:
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. This 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 may not be less than the allowable amount under the applicable schedules of Medicare Part B for 2007 for medical services, supplies and care subject to Medicare Part B. In determining the appropriate reimbursement under the applicable Medicare fee schedule, all reasonable, medically necessary, and covered charges for services, supplies and care submitted by physicians, non-physician practitioners, or any other provider will be subject to the Center for Medicare Services (CMS) coding policies and payment methodologies, including applicable modifiers. The CMS policies include, but are not limited to: coding edits, both mutually exclusive and inclusive, payment limitations, and coding guidelines subject to the National Correct Coding Initiative (NCCI), Hospital Outpatient Prospective Payment System (OPPS), Multiple Procedure Payment Reduction (MPPR), and Multiple Surgery Reduction Rules (MSRR). (Emphasis added)
Defendant argues that Florida section 627.736(5)(a)5 simple notice provision applies only to the incorporation of the schedule of maximum charges. Once that notice requirement has been met, Defendant may apply coding and payment methodologies pursuant to Florida section 627.736(5)(a)3 and Florida section 627.7311 — Florida section 627.7311 incorporates the provisions and procedures of the Florida PIP statute into a policy of insurance, regardless of express inclusion in the policy language. This court agrees, yet finds that the Defendant’s policy clearly and unambiguously provided adequate notice to allow Defendant to rely on MPPR when reimbursing medical providers. Additionally, the Court finds that per Florida section 627.736(5)(a)2 and the express language of the underlying insurance policy, Defendant properly paid Plaintiff at the 2007 Participating Physician’s Fee Schedule, as that rate was higher than the Participating Physician’s Fee Schedule with MPPR for the year in which the services occurred.
C. Payment of Primary Procedure Code Under MPPR When Payment is Less Than the Amount Allowed Pursuant to Florida Section 627.736 (5)(a)1
For date of service February 16, 2017, Plaintiff billed CPT 97535 — among other codes billed by Plaintiff on the same date of service. Plaintiff billed $62.36 for CPT code 97535. This charge was less than the amount allowed under the schedule of maximum charges. The MPPR rule identified CPT code 97535 as the primary procedure code for date of service February 16, 2017 — the code with the highest practice expense. Defendant paid 80% of the billed amount for CPT code 97535. With respect to the other codes billed by Plaintiff on February 16, 2017 and identified by MPPR as secondary procedure codes — G0283, 97140 and 97035 — Defendant properly reduced the practice expense component of reimbursement.
Plaintiff asserts that the Defendant breached the contract when it paid CPT code 97535 at 80% of the billed amount, rather than at 80% of 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B. Plaintiff’s argument is premised on MPPR identifying CPT code 97535 as the primary code. However, this Court finds that Plaintiff failed to present any admissible evidence that the Defendant misapplied MPPR.
This Court is not persuaded by Plaintiff’s argument that in order for Defendant to apply MPPR, Defendant must pay more than 80% of the billed amount for CPT Code 97535 or suspend with the use of MPPR when a provider bills an otherwise primary procedure code for less than the amount allowed under the schedule of maximum charges, i.e. $62.36 billed for CPT Code 97535. Plaintiff’s theory would render MPPR — a payment methodology intended by the Legislature’s latest iteration of the PIP Statute — meaningless. MPPR is a payment methodology developed by CMS. The dictates and application of MPPR are prescribed by CMS, not the Defendant. As provided, supra, CMS implemented MPPR to identify mis-valued codes under the Medicare physician fee schedule. This Court finds no cause to prescribe an exception where one was never intended.
Further, Florida section 627.736(5)(a)5 states in pertinent part, “[i]f a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.” It is “axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992) (Emphasis added). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id.; see also State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) [27 Fla. L. Weekly S860a] (“[T]he Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”).
It is undisputed that Plaintiff charged less than 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B for CPT code 97535. Therefore, the Court finds that the Defendant properly paid CPT code 97535 at 80% of the amount billed pursuant to Florida section 627.736(5)(a)5.
IT IS THEREFORE
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment against the Plaintiff, is hereby GRANTED, as the pleadings, affidavits, and other materials that would be admissible in evidence on the file show that there is no genuine issue of material fact and that as a matter of law, the Defendant has no liability to the Plaintiff. Plaintiff shall take nothing by this action. The Court reserves jurisdiction to determine entitlement and amount of attorney’s fees and costs to the Defendant, upon a timely motion.