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Filing # 124940863 E-Filed 04/14/2021 04:59:52 PM
ASSOCIATES, MD, BILLING AND IN THE COUNTY COURT, IN AND FOR
MANAGEMENT, LLC, A/A/O KATISHA BROWARD COUNTY, FLORIDA
JENKINS,
Plaintiff, CASE NO.: COWE-21001625
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
DEFENDANT’S NOTICE OF FILING CASE LAW
Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, by
and through the undersigned attorneys, hereby files the following case law in support of any and
all hearings, depositions, Trial, or any other purposes:
1 Injuryone, Inc. v. State Farm Mut. Auto. Ins. Co., 26 Fla. L. Weekly Supp. 48b (Fla. 17th
Cir. Ct. 2017);
Golden Health Solutions a/a/o Jean Boesch v. Garrison Prop. & Cas. Ins. Co., 25 Fla. L.
Weekly Supp. 751b (Fla. 11th Cir. Ct. 2016);
State Farm Mut. Auto. Ins. Co. v. Fla. Emergency Phys. Kang & Assoc. a/a/o Jonathan
Sias, M.D., P.A., 25 Fla. L. Weekly Supp. 774a (Fla. 9th Cir. App. 2017);
Crespo & Assoc., P.A. a/a/o Christina Dingus v. Garrison Prop. & Cas. Ins. Co., 25 Fla.
L. Weekly Supp. 828a (Fla. 13th Cir. Ct. 2016); and
Golden Health Solutions, Inc. a/a/o Bryan Mora v. State Farm Mut. Auto. Ins. Co., 22 Fla.
L. Weekly Supp. 1166a (Fla. Dade County Ct. 2015).
Associates in Family Practice of Broward, LLC, a/a/o Emmanuelia Julmis, v. State Farm
Mut. Auto. Ins. Co., Case No.: COCE18006430.
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/14/2021 04:59:52 PM.**#*
Multi Specialty Medical Consultants of Florida, LLC, a/a/o Anna Stephenson v. State Farm
Mut. Auto. Ins. Co., Case No.: COCE18-006074.
Associate in Family Practice of Broward, LLC, a/a/o Sonia Gidwani, v. State Farm Mut.
Auto. Ins. Co., Case No.: COCE19-001744.
Multi Specialty Medical Consultants of Florida, LLC, a/a/o Anna Stephenson v. State Farm
Mut. Auto. Ins. Co., Case No.: COCE-18-006074.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing was
electronically furnished April 14, 2021 to efilings@draizinlaw.com, Aaron Draizin, Esq., Draizin
Law, PLLC, 587 Sawgrass Corp. Pkwy., Sunrise, FL 33325.
GOLDSTEIN LAW GROUP
Attorneys for Defendant
7901 SW 6" Court, Suite 250
Plantation, Florida 33324
Telephone (954) 767-8393
Facsimile (954) 767-8303
Designated email service address:
ervicebyemail@mydefenselawyers.com
By: /s/
Deborah L. Braile, Esquire
Florida Bar No.: 0998620
Evan R. Aronson, Esquire
Florida Bar No.: 98864
srenzots . INJURYONE INC., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial . .
26 Fla: L. Weekly Supp. 48b
Online Reference: FLWSUPP 2601INJU
Insurance -- Personal injury protection - Coverage — Medical expenses — Statutory fee schedules —
Policy properly incorporated ability to limit payment pursuant to section 627.736(5)(a)(1) — Statute allows
insurers to use Medicare coding policies and payment methodologies of federal Centers for Medicare and
Medicaid Services, including-applicable modifiers, to determine appropriate reimbursement if coding
policy or payment methodology does not constitute utilization limit — Policy provided adequate notice
that defendant would be using same — Limits for physician assistant services constitute a Medicare coding
policy or payment methodology of federal Centers for Medicare and Medicaid Services
INJURYONE INC., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16-009462 (49).
September 29, 2017. Nina W. Di Pietro, Judge.
ORDER GRANTING DEFENDANT'S MOTION
FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on September 20; 2017, regarding Defendant's Motion for Partial
Summary Judgment (hereinafter “Defendant's Motion”), and the Court having reviewed Defendant's 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:
Defendant's Motion requests that the Court make several rulings. First, Defendant requests that the Court find
that its policy of insurance, State Farm Policy Form 9810A, properly incorporates the ability to limit payment
pursuant to Florida Statute §627.736(5)(a)(1). As was stated on the record at the hearing on-Defendant's Motion,
the Court grants this request for the reasons set forth in this Court's May 26, 2017 written opinion in the matter
of Precisic MN y, COCE 16-
005859 (49) [25 Fla, Weekly Supp. 295al,
Defendant's Motion next requests that the Court find that Defendant's policy of insurance permits for Defendant
to use Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid -
Services. As.was stated on the record at the hearing on Defendant's Motion, the Court grants this request based
upon the following: 1. The Court's finding that Defendant's policy of insurance properly incorporates the ability
to limit payment pursuant to Florida Statute §627.736(5)(a)(1); 2. Florida Statute §627.736(5)(a)(3) allows for
.
insurers. to use 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; and-3.. Defendant's policy of insurance provides adequate notice that Defendant will be using same.
Defendant's Motion finally requests that the Court find that the following provision, found in the Medicare
Claims Processing Manual Chapter 12, Section 110, pertaining to Physician Assistant (PA) Services Payment
Methodology, constitutes a Medicare coding policy or payment methodology of the federal Centers for Medicare
and Medicaid Services: Physician assistant services are paid at 80 percent of the lesser of the actual charge or 85
percent of what a physician is paid under the Medicare Physician Fee Schedule. Although for this case only,
Plaintiff stipulates that this provision does in fact constitute a Medicare coding policy or payment methodology
of the federal Centers for Medicare.and Medicaid Services, the Court independently finds the same:
nee
EXHIBIT
Gy
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5/30/2019 GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP.
25 Fla. L. Weekly Supp. 751b
Online Reference: FLWSUPP 2508BOES
Insurance — Personal injury protection — Coverage — Medical expenses —- Physician assistant reduction is
Medicare payment limitation, not utilization limit prohibited by section 627.736(5)(a)3 - Where PIP
policy clearly and unambiguously states that insurer may utilize Medicare coding policies and payment
methodologies to determine appropriate amount of reimbursement, insurer properly applied physician
assistant reduction to reimburse for service that was provided by assistant rather than physician
GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND
CASUALTY INSURANCE COMPANY, Defendant: County Court, 11th Judicial Circuit.in and for Miami Dade
County. Case No..2014-12764 SP 25. August 18, 2016. Gina Beovides, Judge.
ORDER DENYING PLAINTIFF'S
MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on July 8, 2016 concerning PLAINTIFF'S MOTION FOR FINAL
SUMMARY JUDGMENT and the Court having considered the motion, heard argument of counsel, the record
and being otherwise advised in the Premises, the Court enters the following Order:
The subject action involves a claim for personal injury protection insurance benefits filed by the Plaintiff,
GOLDEN HEALTH SOLUTIONS, INC. (hereinafter “Plaintiff’) as assignee of Jean Boesch (hereinafter
“Claimant”), against the Defendant, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY
(hereinafter “Defendant”), arising out of a motor-vehicle accident that allegedly occurred on March 18, 2014.
Specifically at issue in this case is CPT Code 99203 on date of service of March 24, 2014 in the amount of
$350.00, CPT Code 99213 on date of service of April 11, 2014 and June 9, 2014 in the amount of.$250.00 each.
Based on the bill and records submitted by Plaintiff, said service was performed by Francisco Cortes, a
physician assistant: Plaintiff billed a total of $850.00 for said services
The Defendant reviewed bills received and approved $200.94 and issued payment for 80% ($160.74) for CPT
Code 99203, and $133.96 and issued payment for 80% ($107.17) for each CPT code 99213. The reductions were
made pursuant to Medicare coding policies. The medical records showed that although the Plaintiff billed at the
physician rate for these CPT Codes, it was actually a physician assistant who performed the billed service. The
Defendant did not allow a physician fee for a service provided by a physician assistant and accordingly, made an
adjustment so that it paid 85 percent of what a physician is paid under the Medicare Physician Fee Schedule.
Plaintiff seeks summary judgment and argues that the appropriate reimbursement total should have been: $551.60.
which represents 200% of the Medicare Part B physician fee schedule for the year in which services were:
rendered. Plaintiff contends that Defendant's policy does not properly elect the use of the Medicare coding —
policies to reduce the rate for services performed by a physician assistant.
At the time of the aforementioned accident, the Claimant was covered with a contract of insurance issued by the
Defendant that provided PIP benefits in accordance with the Florida Motor Vehicle No-Fault Law. Under the
Policy, the Defendant agreed to pay for “reasonable fees”. In accordance with Fla. Stat. §627.736(5)(a), the
policy states:
K.“Reasonable fee” is no more than 80 percent of the following schedule of maximum charges:
6. For all other medical services, supplies and care, two hundred (200) percent of the allowable
amount under:
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—_
sxor19, GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP..
a, Medicare Part B, except as provided in 6.b. and 6.c. below;
For purposes of this definition (K.), 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 are rendered and the
applicable fee schedule or payment limitation applies through 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 applicable schedule of Medicare Part B for 2007 for medical services,
supplies and care subject to Medicare Part B.
Insuring Agreement
F. We may utilize 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.
EXCLUSIONS
B. We will not pay benefits under PIP Coverage for services, supplies or care that is not
reimbursable under Medicare or Florida workers' compensation law.
Additionally, §627.736(5)(a), Fla. Stat. (2012), states as follows:
(5)(a) Charges for treatment of injured persons. --
A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured
person for a bodily injury covered by a 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, and the insurer providing such coverage may pay for such charges directly to such person
or institution lawfully rendering such treatment if the insured receiving such treatment or his or her
guardian has countersigned the properly completed invoice, bill, or claim form approved by the
office upon which such charges are to be paid for as having actually been rendered, to the best
knowledge of the insured or his or her guardian. 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 schedule 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:
(1) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-
subparagraphs (II) and (III).
Further, Florida Statutes §627.736(5)(a)(3) provides:
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§/30/2019, GOLDEN HEALTH SOLUTIONS, INC., a/alo Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP.
An insurer that applies the allowable payment limitation 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 forparticular procedures
or procedure codes. However, subparagraph 1. does not prohibit an insurer form 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.
The Medicare coding policies and payment methodologies determined that a physician is paid the lower of the
actual charge or the fee schedule amount, which is “80 percent of the allowed charge after the deductible is met.”
See Medicare Claims Processing Manual, (Pub. 100-04) Ch. 12, §20, (available online at
http:/www.cms. gov/Regulations-and-Guidance/Guidance/ Manuals/Downloads/clml04c12.pdf). Physician
Assistants and Nurse Practitioners “are paid at 80% of the lesser of the actual charge or 85 percent of what a
physician is paid under the Medicare Physician Fee Schedule.” Jd. at §110.
For purposes of this Motion, the Plaintiff stipulates that the Defendant has properly elected use of the permissive
fee schedule provided in Florida Statute §627.736(5)(a)1. The court further finds that the physician assistant
reduction is a Medicare payment limitation and not a utilization limit.
Plaintiff argues that Defendant is prohibited from making this payment limitation because Defendant's policy is
ambiguous. While the court agrees that Medicare coding polices are not referenced within the definition of
“Reasonable Fee” in Defendant's policy, said language is clearly found in Section F of the policy's Insuring
Agreement. The fact that the language is not incorporated in the Definition portion of the policy, does not render
the policy in and of itself ambiguous.
Plaintiff further argues that the language in Section F of Defendant's policy is ambiguous under
Co. v. Virtual Imaging Serv, 79 So.3d 55.58(Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]. In the Virtual case
the court found that “a policy indicating that an insurer may distribute reimbursements according to one method
without clarifying alternative methods or identifying the factors to be considered in selecting among methods is
ambiguous.” /d. at 58. This court, however, finds that the analysis in Virtual does not apply to the matter at hand.
In the Virtual case, “Geico was faced with at least two ways of reimbursing reasonable medical expenses: (a)
reimbursing Virtual Imaging for 80% of the amount billed, or (b) reimbursing them for 80% of 200% of the
amount listed on the Medicare fee schedule. When two distinct payment amounts are possible under the statute,
it is misleading to insist that there is only one calculation methodology being used.” /d. at 58. In this matter there
is no such conflict and/or ambiguity. There are no conflicting statements in the policy or various options to
choose from. Defendant's policy is clear and specifically states that payment limitations are those applied by
Medicare.
Florida Statute §627.736(5)(a)(3) permits the use of the physician assistant reduction as a Medicare payment
methodology. Although subsection (5)(a)(3) prevents an insurer from refusing to reimburse providers for
services lawfully rendered under their license, it goes on further to allow an insurer to use Medicare coding
policies and payment methodologies in determining the appropriate amount of that reimbursement. Florida’
Florida Motor Vehicle No-Fault Law was amended in 2012 and pursuant to the legislative intent, that language
was added to the statute. A court is without power to diverge from the intent of the legislature where the wordin:
of the statute is clear and unambiguous. GEICO v, Virtual Imagining Servs,, Inc. 141 So. 3d 147 (Fla. 2013) (36
Fla. L. Weekly $517a].The legislature did not narrow or limit the Medicare coding policies or payment
methodologies which could be relied on in the statute. Rather, the legislature explicitly stated an insurer could
rely on the coding policies and payment methodologies in plurality.
In this case, the Defendant has not refused to reimburse for the service provided by the physician assistant, but
rather permissibly used Medicare methodology to determine the appropriate amount of the reimbursement when
the service is provided by a physician assistant and not a physician. Nothing about said language is ambiguous
or conflicting. The adjustment is merely to reflect that pursuant to the Medicare fee schedule, physicians are to
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1 &file=../supfiles/issues/vol25/75 1b.htm&query="25+Fla.+L.+Weekly+Supp.+751b". wa
soon, GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP.
be paid more for their services than nurse practitioners. GEICO v, Virtual Imagining Servs., Inc, 141 So. 3d 147
(Fla. 2013) [36 Fla. L. Weekly S517a] requires only that the insurer provide notice in their policies of an election
to use the fee schedules and Medicare coding policies. Accordingly, the court finds the language of Defendant's
policy to be sufficient notice that the Defendant elected the use of Medicare coding policies and payment
methodologies, which includes the physician's assistant reduction, in determining reimbursement amounts as
permitted under §627.736(5)(a)3.
Based on the foregoing, it is therefore ORDERED AND ADJUDGED Plaintiff's Motion for Final Summary
Judgment is hereby DENIED .
eR
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setzot8 . , STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appeltant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOC...
25 Fla, L..Weekly Supp. 774a
Online Reference: FLWSUPP 2509SIAS
Insurance — Personal injury protection - Coverage — Medical expenses — Statutory fee schedules — Clear
and unambiguous election by insurer — Insurer gave adequate notice of its election of fee schedules to
limit its payments where policy included under “Limits” heading the provision that it would in no event
“pay more than 80% of the following No-Fault Act ‘schedule of maximum charges' ” and immediately
thereafter recited statutory language of the fee schedules — Further, statute provides that policy form
approved by Office of Insurance Regulation satisfies notice requirement — Fact that policy definition of
“reasonable charge” included consideration of not just fee schedules, but also factors such as usual and
customary charges, payments accepted by provider, and reimbursement levels in community does not
change result
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY
PHYSICIANS KANG & ASSOCIATES, M.D., P.A., a/a/o Jonathan Sias, Appellee. Circuit Court, 9th Judicial
Circuit (Appellate) in and for Orange County. Case No. 2016-CV-000a024-A-O. December: 18, 2017. Appeal
from the County Court for Orange County, Steve Jewett, County Judge. Counsel: Tracy T. Segal, Marcy Levine
Aldrich, and Nancy A. Copperthwaite, Akerman, LLP, Miami, for Appellant. David M. Caldevilla and Mark A.
Cederberg, Bradford Cederberg, P.A., Orlando, for Appellee.
[Lower court order published at 23 Fla. L. Weekly Supp. 1052a.]
[Editor's note: Motion for Rehearing filed.]
(Before S. KEST, UNDERWOOD and BLECHMAN, JJ.)
(PER CURIAM.) In this PIP case, Defendant State Farm Mutual Auto Insurance Co. (State Farm) timely appeals
the trial court's Order Granting Plaintiff's Motion for Final Summary Judgment and Denying Defendant's:
Amended Motion for Final Summary Judgment (Order), rendered on February 11, 2016, which was entered in
favor of Plaintiff Florida Emergency Physicians Kang & Associates, M.D., P A. (FEP). We reverse: «
Eactual and Procedural Background
On December 24, 2013, the insured, Jonathon Sias, was involved in a motor vehicle accident. At the time of the
accident, Sias was covered under an automobile insurance policy:issued by State Farm. The policy provided.
Personal Injury Protection (PIP) coverage of $10,000.00. Sias received emergency services.and care from FEP. It
is undisputed that FEP's emergency services and care was reasonable, necessary and related to the accident.
FEP charged.$370.00 for the emergency services and care it had provided to Sias, and submitted the bill to State:
Farm for payment under Sias's PIP coverage. State Farm processed the bill by limiting reimbursement to 85% of
200% of the Medicare Part B fee schedule and then paying 80% of that amount, which resulted in a net payment
of $90.29. The Explanation of Review (EOR) that State Farm sent to FEP gave the following explanation for the
reduction: “The payment for this Nurse Practitioner/Physician Assistant service has been evaluated using
Medicare Claims Processing Manual guidelines and the applicable Medicare Part B fee'schedule.”
FEP filed suit against State Farm, and the parties ultimately filed competing motions for summary judgment.
The trial court in its Order determined that State Farm improperly utilized the “schedule of maximum charges”
to limit reimbursement to FEP because its insurance policy did.not make a clear and unambiguous election to do
so in accordance with Florida law. Rather, State Farm used an unlawful “hybrid method” for calculating PIP
benefits, failing to “elect one statutory payment calculation method to the exclusion of the other.” The Order
went on to grant FEP's Motion for Summary Judgment, deny State Farm's Amended Motion for Summary
Judgment, and enter Final Judgment in FEP's favor for $205.71 plus 4.75% rejudgment interest of $20.19 for a
y 8a?
total sum of $225.90.
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stearate, ‘ ‘STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCI...
Discussion
State Farm argues that its policy gave adequate notice of its election of the PIP fee schedules to limit
reimbursements. Under the heading “Limits,” State Farm's policy includes the following provision: “[I]n no
event will we pay more than 80% of the following No-Fault Act ‘schedule of maximum charges... .””
(Emphasis in original.) The Court agrees with State Farm that under Florida law, this provision gave adequate
notice of its election.
The PIP statute has always required that automobile insurers reimburse medical providers at 80% of a
“reasonable” amount for treatment since its inception. Effective January 1, 2008, the Florida Legislature
amended the PIP statute to add a provision allowing insurers to “limit reimbursement” to 80% of the “following
schedule of maximum charges.” See ch. 2007-324, § 20, Laws of Fla.; § 627.736(5)(a)2., Fla. Stat. (2008).
However, some controversy and litigation then ensued over when and how insurers could use the PIP fee
schedules.
In Geico General Insurance Co, v. Virtual Imaging Services, Inc., 141 So. 3d 147, 160 (Fla. 2013) [38 Fla. L.
Weekly $517a], the Florida Supreme Court held that “under the 2008 amendments to the PIP statute, a PIP
insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its
insured by electing those fee schedules in its policy.” Virtual Imaging explained that notice to the insured
through an election in the policy is required because the PIP statute “requires the insurer to pay for ‘reasonable
expenses’ for medical services, but “merely permits the insurer to use the Medicare fee schedules as a basis for
limiting reimbursements.” Jd. at 150 (italics in original).
Effective July 1, 2012, the Florida Legislature again amended the PIP statute to require that insurers notify their
insureds at the time of policy issuance or renewal of the insurer's election to limit reimbursement pursuant to the
fee schedules in the PIP statute. See ch. 2012-197, § 10, Laws of Fla.; § 627.736(5)(a)5., Fla. Stat. Section
627.736(5)(a)5. provides:
Effective July 1, 2012, an insurer may limit payment as authorized by this paragraph only if the
insurance policy includes a notice at the time of issuance or renewal that the insurer may limit
payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by
the office satisfies this requirement.
This statute applies to the instant case.2
In pedic Specialists, 212 So. 3d 973, 977 (Fla. 2017) [42 Fla. L. Weekly S38a],
the Florida Supreme Court determined that under Virtual Imaging, the following language in an Allstate PIP
policy provided “legally sufficient notice of Allstate's election to use the permissive Medicare fee schedules:
‘{aJny amounts payable’ for medical expense reimbursements ‘shall be subject to any and all limitations,
authorized by section 627.736, . .. including . . . all fee schedules.'” Id. Orthopedic Specialists rejected the
argument that the notice was ambiguous under Virtual Imaging “because it fails to state that Allstate: (1) will not
actually pay eighty percent of reasonable charges and (2) will instead calculate benefits only under the
permissive Medicare fee schedules.” Jd. Orthopedic Specialists explained that under Virtual Imaging, “A PIP
policy cannot contain a statement that the insurer will not pay eighty percent of reasonable charges because no
insurer can disclaim the PIP statute's reasonable medical expenses coverage mandate.” Id. Orthopedic
Specialists also explained that under Virtual Imaging, “[A] PIP policy cannot state that the insurer will calculate
benefits solely under the Medicare fee schedules . . . because the Medicare fee schedules are not the only
applicable mechanism for calculating reimbursements under the permissive payment methodology.” ida
The Court concludes that State Farm's policy gives adequate notice of its election of the PIP fee schedules to
limit reimbursements for purposes of section 627.736(5){a)5., Florida Statutes (2013) and Orthopedic
Specialists. As indicated, under the heading “Limits,”State Farm's policy provides: “[I]n no event will we pay
more than 80% of the following No-Fault Act ‘schedule of maximum charges. . . .'”” (Emphasis in original.) The
policy then lists the “schedule of maximum charges” immediately thereafter, tracking verbatim the statutory
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ston0%8, ‘STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appeliant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCI...
language of the fee schedules set forth in section 627.736(5)(a)1.a.-f., Florida Statutes (2013). Between
explicitly stating that State Farm will not pay more than 80% of the PIP “schedule of maximum charges” and
then reciting the statutory language of the fee schedules immediately thereafter, it is difficult to imagine how
State Farm's notice could have been clearer in expressing its intent to “limit payment pursuant to the schedule of
charges” for purposes of section 627.736(5)(a)5., Florida Statutes (2013).
State Farm's notice in its policy is sufficient under section 627.736(5)(a)5., Florida Statutes (2013) for an
additional reason. That section also provides, “A policy form approved by the office satisfies this requirement.”
In the instant case, it is undisputed that its policy, which includes the notice, was approved by the Office of
Insurance Regulation. Thus, as a matter of law, State Farm's notice satisfies section 627.736(5)(a)5., Florida
Statutes (2013). Contrary to the trial court's ruling, the Florida Legislature has granted the Office of Insurance
Regulation with the authority to review and approve insurance policies. See § 627.410(1), Fla. Stat. (2013). See
also Land O'Sun Mgmt. Corp. v. Commerce & Indus, Ins. Co., 961 So. 2d 1078, 1080 (Fla. Ist DCA 2007) [32
Fla. L. Weekly D1787a] (“The legislature . . . has determined that the Office of Insurance Regulation must
review and approve insurance policies drafted by insurance companies doing business in Florida.”).
State Farm's notice is also sufficient under Orthopedic Specialists, which the Florida Supreme Court decided
after the trial court entered its Order in the instant case. As indicated, the Allstate notice in Orthopedic
Specialists provided: ‘{a]ny amounts payable' for medical expense reimbursements ‘shall be subject to any and
all limitations, authorized by section 627.736, . . . including . . . all fee schedules.' ” 212 So. 3d at 977. As also
indicated, Orthopedic Specialists determined that this language provided “legally sufficient notice of Allstate's
election to use the permissive Medicare fee schedules,” and rejected arguments that the language was ambiguous
in several respects. /d. The Court finds the State Farm notice in the instant case to be at least as clear as the
Allstate notice in Orthopedic Specialists. The instant State Farm notice states that “in no event” will State Farm
pay more than 80% of the No-Fault Act “ ‘schedule of maximum charges,” while the Allstate notice provided
that PIP reimbursements “shall be subject to any and all limitations” that included “all fee schedules.”
Additionally, the trial court's conclusion that State Farm used an unlawful “hybrid method” for calculating PIP
benefits, failing to “elect one statutory payment calculation method to the exclusion of the other,” does not pass
muster under Florida law. In reaching that conclusion, the trial court in its Order reasoned that while State Farm
purports to limit its reimbursements to the fee schedules, elsewhere in its policy it defines a “reasonable charge”
as
an amount determined by us to be reasonable in accordance with the No-Fault Act, considering one
or more of the following:
1. usual and customary charges;
2. payments accepted by the provider;
3. reimbursement levels in the community;
4. various federal and state medical fee schedules applicable to motor vehicle and other insurance
coverages,
5. the schedule of maximum charges in the No-Fault Act,
6. other information relevant to the reasonableness of the charge for the service, treatment, or
supply; or
7. Medicare coding policies and payment methodologies of the federal Center for Medicare and
Medicaid Services, including applicable modifiers, if the coding policy or payment methodology
does not constitute a utilization limit.
(Emphasis in original.)
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5/30/2019, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOC.
In the trial court's view, State Farm's policy definition of “reasonable charge,” as quoted above, is a hybrid of the
various factors found in both the fact-dependent “reasonable amount” payment methodology of section
627.736(5)(a), Florida Statutes (2013) and the fee schedule or “schedule of maximum charges” payment
methodology of section 627.736(5)(a)1.-5., Florida Statutes (2013). The court explained:
Specifically, paragraphs 1, 2, 3, 4 and 6 referenced above correspond to elements of the “reasonable
amount” payment methodology listed in Section 627.736(5)(a) while paragraphs 5 and 7 referenced
above correspond to elements of the “fee schedule” payment methodology found in Section
627.736(5)(a)1-5.
The court further reasoned:
State Farm is not allowed to utilize certain provisions from the “fact dependent” method and certain
provisions from the “schedule of maximum charges” method, mix them together and create a hybrid
method that leaves the insured and/or medical provider guessing as to how PIP benefits will be
reimbursed; a decision that would rest solely at State Farm's discretion and whim. Clearly this is the
antithesis of the clear and unambiguous election of payment methodology mandated by the Florida
Supreme Court. .. .
The trial court concluded that since State Farm's policy “does not clearly and unambiguously elect to limit
reimbursement of PIP benefits” pursuant to section 627.736(5)(a)!., Florida Statutes (2013), State Farm “may
not avail itself of the permissive payment methodology.”
However, contrary to the reasoning in the trial court's Order, it is clear that State Farm's policy definition of
“reasonable charge” is wholly proper and is indeed required under Florida law. As indicated, Orthopedic
Specialists explained that under Virtual Imaging, “[A] PIP policy cannot state that the insurer will calculate
benefits solely under the Medicare fee schedules . . . because the Medicare fee schedules are not the only
applicable mechanism for calculating reimbursements under the permissive payment methodology.” 212 So.3d
at 977 (citing Virtual Imaging, 141 So. 3d at 159 (“[T]he Medicare fee schedules are not the only mechanism for
calculating reimbursements.”)).
Thus, under Orthopedic Specialists and Virtual Imaging, it is clear that even if a PIP insurer elects to limit its
reimbursements to the fee schedules, in calculating its reimbursements it may not rely solely on the fee
schedules since the.“Medicare fee schedules are not the only applicable mechanism for calculating
reimbursements under the permissive payment methodology.” Moreover, the PIP statute itself makes it clear that
an insurer in determining whether a charge is reasonable is to consider other factors in addition to the fee
schedules. Section 627.736(5), Florida Statutes (2013) provides:
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.
In the instant case, while State Farm seeks to limit its reimbursements to the fee schedules, in calculating its
reimbursements its policy does not provide that it “will calculate benefits solely under the Medicare fee
schedules,” which would be in violation of Orthopedic Specialists and Virtual Imaging. Rather, as indicated,
State Farm's policy definition of a “reasonable charge” includes a consideration of not just the fee schedules, but
also such factors as usual and customary charges, payments accepted by the provider, and reimbursement levels
in the community.
Accordingly, State Farm's policy definition complies with Orthopedic Specialists and Virtual Imaging, and it is
also consistent with section 627.736(5), Florida Statutes (2013), which as indicated contemplates a consideration
of such factors as usual and customary charges, payments accepted by the provider, and reimbursement levels in
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la, +L.+Weekly+Supp.+774a"... 45
sono ‘STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCI.
the community in addition to the fee schedules. Therefore, State Farm in its policy states how it will calculate a
“reasonable charge” in full accordance with Florida law, with the result that its election to limit reimbursements
to the fee schedules was not ambiguous.
In short, we conclude that State Farm gave adequate notice of its election of the fee schedules to limit its
payments, and that the trial court reversibly erred in ruling otherwise. In light of our disposition, we do not
address State Farm's additional argument.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The trial court's Order Granting Plaintiff's Motion for Final Summary Judgment and Denying Defendant's
Amended Motion for Final Summary Judgment, rendered on February 11, 2016, is REVERSED and this matter
is REMANDED to the trial court for further proceedings consistent with this opinion.
2. FEP's motion for appellate attorney's fees, filed on April 6, 2017, is DENIED. (UNDERWOOD and
BLECHMAN, JJ., concur.)
‘This Court has jurisdiction under section 26.012(1), Florida Statutes, and Florida Rule of Appellate Procedure
9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320.
21n light of section 627.736(5)(a)5., Florida Statutes, Virtual Imaging stated that its holding applied “only to
policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided
for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012
amendment, which was July I, 2012.” 141 So. 3d at 150.
3 Orthopedic Specialists additionally rejected arguments that the phrases “shall be subject to” and “all fee
schedules” in the Allstate notice were ambiguous. /d. at 978-79.
ee
www. floridalawweekly.com/fwonline/?page=showfile&fromsearch=1 &file=, /supfiles/issues/vol25/774a.htm&query="25+Fla.+L.+Weekly+Supp.+774a"... 5/5
sinn019, CRESPO AND ASSOCIATES, PA., a/a/o Christina Dingus, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPA...
25 Fla, L: Weekly Supp. 828a
Online Reference: FLWSUPP 2509DING
Insurance ~ Personal injury protection ~ Coverage — Medical expenses — Nurse practitioner adjustment
is Medicare payment methodology, not utilization limit prohibited by section 627.736(5)(a)3 ~ Where PIP
policy clearly and unambiguously states that insurer may utilize Medicare coding policies and payment
methodologies to determine appropriate amount of reimbursement, insurer properly applied nurse
practitioner adjustment to reimburse for service that was provided by nurse practitioner rather than
physician
CRESPO AND ASSOCIATES, P.A., a/a/o Christina Dingus, Plaintiff, v. GARRISON PROPERTY AND
CASUALTY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough
County, Civil Division. Case No. 14-CC-024155, Division H. July 11, 2016. On Motion for Teconsideration.
and/or rehearing September 13, 2017. Daryl M. Manning, Judge. Counsel: Anthony Preito, Prieto, Preito &
Goan, P.A., Tampa, for Plaintiff. Randall A. Wainoris, Dutton Law Group, Tampa, for Defendant.
SUMMARY FINAL JUDGMENT FOR DEFENDANT
THIS MATTER came before the Court on April 11, 2016, on rehearing of Defendant, Garrison Property and.
Casualty Insurance Company's Motion for Summary Final Judgment Regarding Adjustment for a Nurse
Practitioner's Service filed September 30, 2015. Having considered Defendant's Motion, the Plaintiff's response «
in opposition, the summary judgment evidence, the argument presented, the applicable law, and being otherwise
fully advised, the Court finds
1. This is a breach of contract action alleging failure of the Defendant to properly pay Personal Injury Protection
(PIP) and/or Medical Payment benefits to the Plaintiff as assignee of Christina Dingus, Defendant's insured.
More specifically, the Plaintiff contends that the adjustments made to the reimbursement amounts due to the
services having. been rendered by a nurse practitioner are not proper.
2. The parties agree that the Defendant's policy elected to make payment pursuant to the permissive fee schedule:
methodology provided in Florida Statutes section 627.736(5)(a)(1), which allows the insurer to limit
reimbursement pursuant to'a schedule of maximum charges set forth in the statute.
3. The undisputed facts demonstrate that “instead of paying 80 percent of the allowed amount (which is 200:
percent of the Medicare Physician Fee Schedule), [Defendant] paid 85 percent of the 80 percent (i.c.,
reimbursement was a 15% reduction)” for dates of service April 18, 2014, April 23, 2014, and June 4, 2014
because the services on those dates were provided by a nurse practitioner rather than a physician -- resulting in a
$146.28 reimbursement for each date of service.
4. Defendant argues that it permissibly used the adjustment for nurse practitioner services, a Medicare payment
methodology, which is allowed under Florida Statutes section 627.736(5)(a)(3), and provided for in Defendant's
insurance policy.
5. Plaintiff argues that the Defendant's use of the nurse practitioner adjustment is not permitted under Florida
Statutes section 627.736(5), and that even if permitted by statute, the Defendant has not properly elected to use
the nurse practitioner adjustment.
6. The Court finds that the nurse practitioner adjustment is allowed under Florida Statutes section 627.736(5)(a)
(3), which provides that “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.” The nurse
-- paying at 85% of what a physician is paid -- is a Medicare payment methodology. EXHIB!
www floridalawweekly.com/fiwonline/?7page=showfile&fromsearch=
1 &file=../supfiles/issues/vol25/828a. htm&query="25+F | 1 \ 1/3
INSURANCE COMPA...
5/30/2019, : CRESPO AND. ASSOCIATES, P.A., afalo Christina Dingus, Plaintiff, v. GARRISON PROPERTY AND CASUALTY
7, Further, the Court finds that use of the adjustment for a nurse practitioner's services is not a utilization limit in
this case. The adjustments made in this matter are not based on limiting the number of treatments or limiting
the ability to see a particular type of provider, but rather are making an adjustment from the physician fee
schedule when the service is not being performed by a physician.
8. Subsection F of the Insuring Agreement provided in Part B-1 of Defendant's insurance policy? provides: “We
may utilize 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.” The Court finds this to be sufficient notice that Defendant elects to use Medicare coding policies and
payment methodologies, which includes the nurse practitioner adjustment, as allowed under section 627.736(5)
(a)@).
Based on
Preview
Filing # 124940863 E-Filed 04/14/2021 04:59:52 PM ASSOCIATES, MD, BILLING AND IN THE COUNTY COURT, IN AND FOR MANAGEMENT, LLC, A/A/O KATISHA BROWARD COUNTY, FLORIDA JENKINS, Plaintiff, CASE NO.: COWE-21001625 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. DEFENDANT’S NOTICE OF FILING CASE LAW Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, by and through the undersigned attorneys, hereby files the following case law in support of any and all hearings, depositions, Trial, or any other purposes: 1 Injuryone, Inc. v. State Farm Mut. Auto. Ins. Co., 26 Fla. L. Weekly Supp. 48b (Fla. 17th Cir. Ct. 2017); Golden Health Solutions a/a/o Jean Boesch v. Garrison Prop. & Cas. Ins. Co., 25 Fla. L. Weekly Supp. 751b (Fla. 11th Cir. Ct. 2016); State Farm Mut. Auto. Ins. Co. v. Fla. Emergency Phys. Kang & Assoc. a/a/o Jonathan Sias, M.D., P.A., 25 Fla. L. Weekly Supp. 774a (Fla. 9th Cir. App. 2017); Crespo & Assoc., P.A. a/a/o Christina Dingus v. Garrison Prop. & Cas. Ins. Co., 25 Fla. L. Weekly Supp. 828a (Fla. 13th Cir. Ct. 2016); and Golden Health Solutions, Inc. a/a/o Bryan Mora v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 1166a (Fla. Dade County Ct. 2015). Associates in Family Practice of Broward, LLC, a/a/o Emmanuelia Julmis, v. State Farm Mut. Auto. Ins. Co., Case No.: COCE18006430. #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/14/2021 04:59:52 PM.**#* Multi Specialty Medical Consultants of Florida, LLC, a/a/o Anna Stephenson v. State Farm Mut. Auto. Ins. Co., Case No.: COCE18-006074. Associate in Family Practice of Broward, LLC, a/a/o Sonia Gidwani, v. State Farm Mut. Auto. Ins. Co., Case No.: COCE19-001744. Multi Specialty Medical Consultants of Florida, LLC, a/a/o Anna Stephenson v. State Farm Mut. Auto. Ins. Co., Case No.: COCE-18-006074. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing was electronically furnished April 14, 2021 to efilings@draizinlaw.com, Aaron Draizin, Esq., Draizin Law, PLLC, 587 Sawgrass Corp. Pkwy., Sunrise, FL 33325. GOLDSTEIN LAW GROUP Attorneys for Defendant 7901 SW 6" Court, Suite 250 Plantation, Florida 33324 Telephone (954) 767-8393 Facsimile (954) 767-8303 Designated email service address: ervicebyemail@mydefenselawyers.com By: /s/ Deborah L. Braile, Esquire Florida Bar No.: 0998620 Evan R. Aronson, Esquire Florida Bar No.: 98864 srenzots . INJURYONE INC., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial . . 26 Fla: L. Weekly Supp. 48b Online Reference: FLWSUPP 2601INJU Insurance -- Personal injury protection - Coverage — Medical expenses — Statutory fee schedules — Policy properly incorporated ability to limit payment pursuant to section 627.736(5)(a)(1) — Statute allows insurers to use Medicare coding policies and payment methodologies of federal Centers for Medicare and Medicaid Services, including-applicable modifiers, to determine appropriate reimbursement if coding policy or payment methodology does not constitute utilization limit — Policy provided adequate notice that defendant would be using same — Limits for physician assistant services constitute a Medicare coding policy or payment methodology of federal Centers for Medicare and Medicaid Services INJURYONE INC., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16-009462 (49). September 29, 2017. Nina W. Di Pietro, Judge. ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CAUSE having come on to be heard on September 20; 2017, regarding Defendant's Motion for Partial Summary Judgment (hereinafter “Defendant's Motion”), and the Court having reviewed Defendant's 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: Defendant's Motion requests that the Court make several rulings. First, Defendant requests that the Court find that its policy of insurance, State Farm Policy Form 9810A, properly incorporates the ability to limit payment pursuant to Florida Statute §627.736(5)(a)(1). As was stated on the record at the hearing on-Defendant's Motion, the Court grants this request for the reasons set forth in this Court's May 26, 2017 written opinion in the matter of Precisic MN y, COCE 16- 005859 (49) [25 Fla, Weekly Supp. 295al, Defendant's Motion next requests that the Court find that Defendant's policy of insurance permits for Defendant to use Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid - Services. As.was stated on the record at the hearing on Defendant's Motion, the Court grants this request based upon the following: 1. The Court's finding that Defendant's policy of insurance properly incorporates the ability to limit payment pursuant to Florida Statute §627.736(5)(a)(1); 2. Florida Statute §627.736(5)(a)(3) allows for . insurers. to use 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; and-3.. Defendant's policy of insurance provides adequate notice that Defendant will be using same. Defendant's Motion finally requests that the Court find that the following provision, found in the Medicare Claims Processing Manual Chapter 12, Section 110, pertaining to Physician Assistant (PA) Services Payment Methodology, constitutes a Medicare coding policy or payment methodology of the federal Centers for Medicare and Medicaid Services: Physician assistant services are paid at 80 percent of the lesser of the actual charge or 85 percent of what a physician is paid under the Medicare Physician Fee Schedule. Although for this case only, Plaintiff stipulates that this provision does in fact constitute a Medicare coding policy or payment methodology of the federal Centers for Medicare.and Medicaid Services, the Court independently finds the same: nee EXHIBIT Gy www. floridalawweekly.com/fiwonline/?page=showfile& fromsearch=1 &file=../supfiles/issues/vol26/48b.htm&query="26+Fla.+L.+Weekly+Supp.+48b"&al... ww 5/30/2019 GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP. 25 Fla. L. Weekly Supp. 751b Online Reference: FLWSUPP 2508BOES Insurance — Personal injury protection — Coverage — Medical expenses —- Physician assistant reduction is Medicare payment limitation, not utilization limit prohibited by section 627.736(5)(a)3 - Where PIP policy clearly and unambiguously states that insurer may utilize Medicare coding policies and payment methodologies to determine appropriate amount of reimbursement, insurer properly applied physician assistant reduction to reimburse for service that was provided by assistant rather than physician GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant: County Court, 11th Judicial Circuit.in and for Miami Dade County. Case No..2014-12764 SP 25. August 18, 2016. Gina Beovides, Judge. ORDER DENYING PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT THIS CAUSE having come before the Court on July 8, 2016 concerning PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT and the Court having considered the motion, heard argument of counsel, the record and being otherwise advised in the Premises, the Court enters the following Order: The subject action involves a claim for personal injury protection insurance benefits filed by the Plaintiff, GOLDEN HEALTH SOLUTIONS, INC. (hereinafter “Plaintiff’) as assignee of Jean Boesch (hereinafter “Claimant”), against the Defendant, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), arising out of a motor-vehicle accident that allegedly occurred on March 18, 2014. Specifically at issue in this case is CPT Code 99203 on date of service of March 24, 2014 in the amount of $350.00, CPT Code 99213 on date of service of April 11, 2014 and June 9, 2014 in the amount of.$250.00 each. Based on the bill and records submitted by Plaintiff, said service was performed by Francisco Cortes, a physician assistant: Plaintiff billed a total of $850.00 for said services The Defendant reviewed bills received and approved $200.94 and issued payment for 80% ($160.74) for CPT Code 99203, and $133.96 and issued payment for 80% ($107.17) for each CPT code 99213. The reductions were made pursuant to Medicare coding policies. The medical records showed that although the Plaintiff billed at the physician rate for these CPT Codes, it was actually a physician assistant who performed the billed service. The Defendant did not allow a physician fee for a service provided by a physician assistant and accordingly, made an adjustment so that it paid 85 percent of what a physician is paid under the Medicare Physician Fee Schedule. Plaintiff seeks summary judgment and argues that the appropriate reimbursement total should have been: $551.60. which represents 200% of the Medicare Part B physician fee schedule for the year in which services were: rendered. Plaintiff contends that Defendant's policy does not properly elect the use of the Medicare coding — policies to reduce the rate for services performed by a physician assistant. At the time of the aforementioned accident, the Claimant was covered with a contract of insurance issued by the Defendant that provided PIP benefits in accordance with the Florida Motor Vehicle No-Fault Law. Under the Policy, the Defendant agreed to pay for “reasonable fees”. In accordance with Fla. Stat. §627.736(5)(a), the policy states: K.“Reasonable fee” is no more than 80 percent of the following schedule of maximum charges: 6. For all other medical services, supplies and care, two hundred (200) percent of the allowable amount under: www.floridalawweekly.com/fwonline/?page=showfile&fromsearch= &file=. 1 1 wae *25+Fla.+L.+Weekly+Supp.4751b" 1/4 —_ sxor19, GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP.. a, Medicare Part B, except as provided in 6.b. and 6.c. below; For purposes of this definition (K.), 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 are rendered and the applicable fee schedule or payment limitation applies through 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 applicable schedule of Medicare Part B for 2007 for medical services, supplies and care subject to Medicare Part B. Insuring Agreement F. We may utilize 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. EXCLUSIONS B. We will not pay benefits under PIP Coverage for services, supplies or care that is not reimbursable under Medicare or Florida workers' compensation law. Additionally, §627.736(5)(a), Fla. Stat. (2012), states as follows: (5)(a) Charges for treatment of injured persons. -- A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by a 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, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. 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 schedule 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: (1) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub- subparagraphs (II) and (III). Further, Florida Statutes §627.736(5)(a)(3) provides: www. floridalawweekly.com/fiwonline/?page=showfileafromsearch=1 &file=../supfiles/issues/vol25/75 1 b.htm&query="25+Fla.+L.+Weekly+Supp.+75 1b"... 24 §/30/2019, GOLDEN HEALTH SOLUTIONS, INC., a/alo Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP. An insurer that applies the allowable payment limitation 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 forparticular procedures or procedure codes. However, subparagraph 1. does not prohibit an insurer form 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. The Medicare coding policies and payment methodologies determined that a physician is paid the lower of the actual charge or the fee schedule amount, which is “80 percent of the allowed charge after the deductible is met.” See Medicare Claims Processing Manual, (Pub. 100-04) Ch. 12, §20, (available online at http:/www.cms. gov/Regulations-and-Guidance/Guidance/ Manuals/Downloads/clml04c12.pdf). Physician Assistants and Nurse Practitioners “are paid at 80% of the lesser of the actual charge or 85 percent of what a physician is paid under the Medicare Physician Fee Schedule.” Jd. at §110. For purposes of this Motion, the Plaintiff stipulates that the Defendant has properly elected use of the permissive fee schedule provided in Florida Statute §627.736(5)(a)1. The court further finds that the physician assistant reduction is a Medicare payment limitation and not a utilization limit. Plaintiff argues that Defendant is prohibited from making this payment limitation because Defendant's policy is ambiguous. While the court agrees that Medicare coding polices are not referenced within the definition of “Reasonable Fee” in Defendant's policy, said language is clearly found in Section F of the policy's Insuring Agreement. The fact that the language is not incorporated in the Definition portion of the policy, does not render the policy in and of itself ambiguous. Plaintiff further argues that the language in Section F of Defendant's policy is ambiguous under Co. v. Virtual Imaging Serv, 79 So.3d 55.58(Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]. In the Virtual case the court found that “a policy indicating that an insurer may distribute reimbursements according to one method without clarifying alternative methods or identifying the factors to be considered in selecting among methods is ambiguous.” /d. at 58. This court, however, finds that the analysis in Virtual does not apply to the matter at hand. In the Virtual case, “Geico was faced with at least two ways of reimbursing reasonable medical expenses: (a) reimbursing Virtual Imaging for 80% of the amount billed, or (b) reimbursing them for 80% of 200% of the amount listed on the Medicare fee schedule. When two distinct payment amounts are possible under the statute, it is misleading to insist that there is only one calculation methodology being used.” /d. at 58. In this matter there is no such conflict and/or ambiguity. There are no conflicting statements in the policy or various options to choose from. Defendant's policy is clear and specifically states that payment limitations are those applied by Medicare. Florida Statute §627.736(5)(a)(3) permits the use of the physician assistant reduction as a Medicare payment methodology. Although subsection (5)(a)(3) prevents an insurer from refusing to reimburse providers for services lawfully rendered under their license, it goes on further to allow an insurer to use Medicare coding policies and payment methodologies in determining the appropriate amount of that reimbursement. Florida’ Florida Motor Vehicle No-Fault Law was amended in 2012 and pursuant to the legislative intent, that language was added to the statute. A court is without power to diverge from the intent of the legislature where the wordin: of the statute is clear and unambiguous. GEICO v, Virtual Imagining Servs,, Inc. 141 So. 3d 147 (Fla. 2013) (36 Fla. L. Weekly $517a].The legislature did not narrow or limit the Medicare coding policies or payment methodologies which could be relied on in the statute. Rather, the legislature explicitly stated an insurer could rely on the coding policies and payment methodologies in plurality. In this case, the Defendant has not refused to reimburse for the service provided by the physician assistant, but rather permissibly used Medicare methodology to determine the appropriate amount of the reimbursement when the service is provided by a physician assistant and not a physician. Nothing about said language is ambiguous or conflicting. The adjustment is merely to reflect that pursuant to the Medicare fee schedule, physicians are to www. floridalawweekly.com/fwonline/?page=showfile&fromsearch= 1 &file=../supfiles/issues/vol25/75 1b.htm&query="25+Fla.+L.+Weekly+Supp.+751b". wa soon, GOLDEN HEALTH SOLUTIONS, INC., a/a/o Boesch, Jean, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMP. be paid more for their services than nurse practitioners. GEICO v, Virtual Imagining Servs., Inc, 141 So. 3d 147 (Fla. 2013) [36 Fla. L. Weekly S517a] requires only that the insurer provide notice in their policies of an election to use the fee schedules and Medicare coding policies. Accordingly, the court finds the language of Defendant's policy to be sufficient notice that the Defendant elected the use of Medicare coding policies and payment methodologies, which includes the physician's assistant reduction, in determining reimbursement amounts as permitted under §627.736(5)(a)3. Based on the foregoing, it is therefore ORDERED AND ADJUDGED Plaintiff's Motion for Final Summary Judgment is hereby DENIED . eR www. floridalawweekly.comyfwonline/?page=showfile&fromsearch=1&file=../supfiles/issues/vol25/75 1b.htm&query="25+Fia.+L.+Weekly+Supp.+751b"... 44 setzot8 . , STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appeltant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOC... 25 Fla, L..Weekly Supp. 774a Online Reference: FLWSUPP 2509SIAS Insurance — Personal injury protection - Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — Insurer gave adequate notice of its election of fee schedules to limit its payments where policy included under “Limits” heading the provision that it would in no event “pay more than 80% of the following No-Fault Act ‘schedule of maximum charges' ” and immediately thereafter recited statutory language of the fee schedules — Further, statute provides that policy form approved by Office of Insurance Regulation satisfies notice requirement — Fact that policy definition of “reasonable charge” included consideration of not just fee schedules, but also factors such as usual and customary charges, payments accepted by provider, and reimbursement levels in community does not change result STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., a/a/o Jonathan Sias, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2016-CV-000a024-A-O. December: 18, 2017. Appeal from the County Court for Orange County, Steve Jewett, County Judge. Counsel: Tracy T. Segal, Marcy Levine Aldrich, and Nancy A. Copperthwaite, Akerman, LLP, Miami, for Appellant. David M. Caldevilla and Mark A. Cederberg, Bradford Cederberg, P.A., Orlando, for Appellee. [Lower court order published at 23 Fla. L. Weekly Supp. 1052a.] [Editor's note: Motion for Rehearing filed.] (Before S. KEST, UNDERWOOD and BLECHMAN, JJ.) (PER CURIAM.) In this PIP case, Defendant State Farm Mutual Auto Insurance Co. (State Farm) timely appeals the trial court's Order Granting Plaintiff's Motion for Final Summary Judgment and Denying Defendant's: Amended Motion for Final Summary Judgment (Order), rendered on February 11, 2016, which was entered in favor of Plaintiff Florida Emergency Physicians Kang & Associates, M.D., P A. (FEP). We reverse: « Eactual and Procedural Background On December 24, 2013, the insured, Jonathon Sias, was involved in a motor vehicle accident. At the time of the accident, Sias was covered under an automobile insurance policy:issued by State Farm. The policy provided. Personal Injury Protection (PIP) coverage of $10,000.00. Sias received emergency services.and care from FEP. It is undisputed that FEP's emergency services and care was reasonable, necessary and related to the accident. FEP charged.$370.00 for the emergency services and care it had provided to Sias, and submitted the bill to State: Farm for payment under Sias's PIP coverage. State Farm processed the bill by limiting reimbursement to 85% of 200% of the Medicare Part B fee schedule and then paying 80% of that amount, which resulted in a net payment of $90.29. The Explanation of Review (EOR) that State Farm sent to FEP gave the following explanation for the reduction: “The payment for this Nurse Practitioner/Physician Assistant service has been evaluated using Medicare Claims Processing Manual guidelines and the applicable Medicare Part B fee'schedule.” FEP filed suit against State Farm, and the parties ultimately filed competing motions for summary judgment. The trial court in its Order determined that State Farm improperly utilized the “schedule of maximum charges” to limit reimbursement to FEP because its insurance policy did.not make a clear and unambiguous election to do so in accordance with Florida law. Rather, State Farm used an unlawful “hybrid method” for calculating PIP benefits, failing to “elect one statutory payment calculation method to the exclusion of the other.” The Order went on to grant FEP's Motion for Summary Judgment, deny State Farm's Amended Motion for Summary Judgment, and enter Final Judgment in FEP's favor for $205.71 plus 4.75% rejudgment interest of $20.19 for a y 8a? total sum of $225.90. www. floridalawweekly.com/fiwonline/7page=showfile&fromsearch=1 &file=../suy 5+Fia.+L.+Weekly+Supp.+774a"... WS stearate, ‘ ‘STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCI... Discussion State Farm argues that its policy gave adequate notice of its election of the PIP fee schedules to limit reimbursements. Under the heading “Limits,” State Farm's policy includes the following provision: “[I]n no event will we pay more than 80% of the following No-Fault Act ‘schedule of maximum charges... .”” (Emphasis in original.) The Court agrees with State Farm that under Florida law, this provision gave adequate notice of its election. The PIP statute has always required that automobile insurers reimburse medical providers at 80% of a “reasonable” amount for treatment since its inception. Effective January 1, 2008, the Florida Legislature amended the PIP statute to add a provision allowing insurers to “limit reimbursement” to 80% of the “following schedule of maximum charges.” See ch. 2007-324, § 20, Laws of Fla.; § 627.736(5)(a)2., Fla. Stat. (2008). However, some controversy and litigation then ensued over when and how insurers could use the PIP fee schedules. In Geico General Insurance Co, v. Virtual Imaging Services, Inc., 141 So. 3d 147, 160 (Fla. 2013) [38 Fla. L. Weekly $517a], the Florida Supreme Court held that “under the 2008 amendments to the PIP statute, a PIP insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy.” Virtual Imaging explained that notice to the insured through an election in the policy is required because the PIP statute “requires the insurer to pay for ‘reasonable expenses’ for medical services, but “merely permits the insurer to use the Medicare fee schedules as a basis for limiting reimbursements.” Jd. at 150 (italics in original). Effective July 1, 2012, the Florida Legislature again amended the PIP statute to require that insurers notify their insureds at the time of policy issuance or renewal of the insurer's election to limit reimbursement pursuant to the fee schedules in the PIP statute. See ch. 2012-197, § 10, Laws of Fla.; § 627.736(5)(a)5., Fla. Stat. Section 627.736(5)(a)5. provides: Effective July 1, 2012, an insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. This statute applies to the instant case.2 In pedic Specialists, 212 So. 3d 973, 977 (Fla. 2017) [42 Fla. L. Weekly S38a], the Florida Supreme Court determined that under Virtual Imaging, the following language in an Allstate PIP policy provided “legally sufficient notice of Allstate's election to use the permissive Medicare fee schedules: ‘{aJny amounts payable’ for medical expense reimbursements ‘shall be subject to any and all limitations, authorized by section 627.736, . .. including . . . all fee schedules.'” Id. Orthopedic Specialists rejected the argument that the notice was ambiguous under Virtual Imaging “because it fails to state that Allstate: (1) will not actually pay eighty percent of reasonable charges and (2) will instead calculate benefits only under the permissive Medicare fee schedules.” Jd. Orthopedic Specialists explained that under Virtual Imaging, “A PIP policy cannot contain a statement that the insurer will not pay eighty percent of reasonable charges because no insurer can disclaim the PIP statute's reasonable medical expenses coverage mandate.” Id. Orthopedic Specialists also explained that under Virtual Imaging, “[A] PIP policy cannot state that the insurer will calculate benefits solely under the Medicare fee schedules . . . because the Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive payment methodology.” ida The Court concludes that State Farm's policy gives adequate notice of its election of the PIP fee schedules to limit reimbursements for purposes of section 627.736(5){a)5., Florida Statutes (2013) and Orthopedic Specialists. As indicated, under the heading “Limits,”State Farm's policy provides: “[I]n no event will we pay more than 80% of the following No-Fault Act ‘schedule of maximum charges. . . .'”” (Emphasis in original.) The policy then lists the “schedule of maximum charges” immediately thereafter, tracking verbatim the statutory www. floridalawweekly.com/flwoniine/?page=showfile&fromsearch=1 &file=../supfiles/issues/val25/77 4a. htm&query="25+Fla.+L.+Weekly+Supp.+774a"... 25 ston0%8, ‘STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appeliant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCI... language of the fee schedules set forth in section 627.736(5)(a)1.a.-f., Florida Statutes (2013). Between explicitly stating that State Farm will not pay more than 80% of the PIP “schedule of maximum charges” and then reciting the statutory language of the fee schedules immediately thereafter, it is difficult to imagine how State Farm's notice could have been clearer in expressing its intent to “limit payment pursuant to the schedule of charges” for purposes of section 627.736(5)(a)5., Florida Statutes (2013). State Farm's notice in its policy is sufficient under section 627.736(5)(a)5., Florida Statutes (2013) for an additional reason. That section also provides, “A policy form approved by the office satisfies this requirement.” In the instant case, it is undisputed that its policy, which includes the notice, was approved by the Office of Insurance Regulation. Thus, as a matter of law, State Farm's notice satisfies section 627.736(5)(a)5., Florida Statutes (2013). Contrary to the trial court's ruling, the Florida Legislature has granted the Office of Insurance Regulation with the authority to review and approve insurance policies. See § 627.410(1), Fla. Stat. (2013). See also Land O'Sun Mgmt. Corp. v. Commerce & Indus, Ins. Co., 961 So. 2d 1078, 1080 (Fla. Ist DCA 2007) [32 Fla. L. Weekly D1787a] (“The legislature . . . has determined that the Office of Insurance Regulation must review and approve insurance policies drafted by insurance companies doing business in Florida.”). State Farm's notice is also sufficient under Orthopedic Specialists, which the Florida Supreme Court decided after the trial court entered its Order in the instant case. As indicated, the Allstate notice in Orthopedic Specialists provided: ‘{a]ny amounts payable' for medical expense reimbursements ‘shall be subject to any and all limitations, authorized by section 627.736, . . . including . . . all fee schedules.' ” 212 So. 3d at 977. As also indicated, Orthopedic Specialists determined that this language provided “legally sufficient notice of Allstate's election to use the permissive Medicare fee schedules,” and rejected arguments that the language was ambiguous in several respects. /d. The Court finds the State Farm notice in the instant case to be at least as clear as the Allstate notice in Orthopedic Specialists. The instant State Farm notice states that “in no event” will State Farm pay more than 80% of the No-Fault Act “ ‘schedule of maximum charges,” while the Allstate notice provided that PIP reimbursements “shall be subject to any and all limitations” that included “all fee schedules.” Additionally, the trial court's conclusion that State Farm used an unlawful “hybrid method” for calculating PIP benefits, failing to “elect one statutory payment calculation method to the exclusion of the other,” does not pass muster under Florida law. In reaching that conclusion, the trial court in its Order reasoned that while State Farm purports to limit its reimbursements to the fee schedules, elsewhere in its policy it defines a “reasonable charge” as an amount determined by us to be reasonable in accordance with the No-Fault Act, considering one or more of the following: 1. usual and customary charges; 2. payments accepted by the provider; 3. reimbursement levels in the community; 4. various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, 5. the schedule of maximum charges in the No-Fault Act, 6. other information relevant to the reasonableness of the charge for the service, treatment, or supply; or 7. Medicare coding policies and payment methodologies of the federal Center for Medicare and Medicaid Services, including applicable modifiers, if the coding policy or payment methodology does not constitute a utilization limit. (Emphasis in original.) .com/fwo fromsearch=1 www floridalawweekly nline/?p &file=. /supfiles/issues/vol25/7 age=show 74a.him&query="25+Fla.+L files .+Weekly+Supp.+774a"... ws 5/30/2019, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOC. In the trial court's view, State Farm's policy definition of “reasonable charge,” as quoted above, is a hybrid of the various factors found in both the fact-dependent “reasonable amount” payment methodology of section 627.736(5)(a), Florida Statutes (2013) and the fee schedule or “schedule of maximum charges” payment methodology of section 627.736(5)(a)1.-5., Florida Statutes (2013). The court explained: Specifically, paragraphs 1, 2, 3, 4 and 6 referenced above correspond to elements of the “reasonable amount” payment methodology listed in Section 627.736(5)(a) while paragraphs 5 and 7 referenced above correspond to elements of the “fee schedule” payment methodology found in Section 627.736(5)(a)1-5. The court further reasoned: State Farm is not allowed to utilize certain provisions from the “fact dependent” method and certain provisions from the “schedule of maximum charges” method, mix them together and create a hybrid method that leaves the insured and/or medical provider guessing as to how PIP benefits will be reimbursed; a decision that would rest solely at State Farm's discretion and whim. Clearly this is the antithesis of the clear and unambiguous election of payment methodology mandated by the Florida Supreme Court. .. . The trial court concluded that since State Farm's policy “does not clearly and unambiguously elect to limit reimbursement of PIP benefits” pursuant to section 627.736(5)(a)!., Florida Statutes (2013), State Farm “may not avail itself of the permissive payment methodology.” However, contrary to the reasoning in the trial court's Order, it is clear that State Farm's policy definition of “reasonable charge” is wholly proper and is indeed required under Florida law. As indicated, Orthopedic Specialists explained that under Virtual Imaging, “[A] PIP policy cannot state that the insurer will calculate benefits solely under the Medicare fee schedules . . . because the Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive payment methodology.” 212 So.3d at 977 (citing Virtual Imaging, 141 So. 3d at 159 (“[T]he Medicare fee schedules are not the only mechanism for calculating reimbursements.”)). Thus, under Orthopedic Specialists and Virtual Imaging, it is clear that even if a PIP insurer elects to limit its reimbursements to the fee schedules, in calculating its reimbursements it may not rely solely on the fee schedules since the.“Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive payment methodology.” Moreover, the PIP statute itself makes it clear that an insurer in determining whether a charge is reasonable is to consider other factors in addition to the fee schedules. Section 627.736(5), Florida Statutes (2013) provides: 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. In the instant case, while State Farm seeks to limit its reimbursements to the fee schedules, in calculating its reimbursements its policy does not provide that it “will calculate benefits solely under the Medicare fee schedules,” which would be in violation of Orthopedic Specialists and Virtual Imaging. Rather, as indicated, State Farm's policy definition of a “reasonable charge” includes a consideration of not just the fee schedules, but also such factors as usual and customary charges, payments accepted by the provider, and reimbursement levels in the community. Accordingly, State Farm's policy definition complies with Orthopedic Specialists and Virtual Imaging, and it is also consistent with section 627.736(5), Florida Statutes (2013), which as indicated contemplates a consideration of such factors as usual and customary charges, payments accepted by the provider, and reimbursement levels in www fioridalawweekly.com/fwonline/?page=sh owfile&fromsearch= 1 &file=../supfiles/issues/vol25/77 4a. htm&query="25+F la, +L.+Weekly+Supp.+774a"... 45 sono ‘STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCI. the community in addition to the fee schedules. Therefore, State Farm in its policy states how it will calculate a “reasonable charge” in full accordance with Florida law, with the result that its election to limit reimbursements to the fee schedules was not ambiguous. In short, we conclude that State Farm gave adequate notice of its election of the fee schedules to limit its payments, and that the trial court reversibly erred in ruling otherwise. In light of our disposition, we do not address State Farm's additional argument. Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. The trial court's Order Granting Plaintiff's Motion for Final Summary Judgment and Denying Defendant's Amended Motion for Final Summary Judgment, rendered on February 11, 2016, is REVERSED and this matter is REMANDED to the trial court for further proceedings consistent with this opinion. 2. FEP's motion for appellate attorney's fees, filed on April 6, 2017, is DENIED. (UNDERWOOD and BLECHMAN, JJ., concur.) ‘This Court has jurisdiction under section 26.012(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320. 21n light of section 627.736(5)(a)5., Florida Statutes, Virtual Imaging stated that its holding applied “only to policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012 amendment, which was July I, 2012.” 141 So. 3d at 150. 3 Orthopedic Specialists additionally rejected arguments that the phrases “shall be subject to” and “all fee schedules” in the Allstate notice were ambiguous. /d. at 978-79. ee www. floridalawweekly.com/fwonline/?page=showfile&fromsearch=1 &file=, /supfiles/issues/vol25/774a.htm&query="25+Fla.+L.+Weekly+Supp.+774a"... 5/5 sinn019, CRESPO AND ASSOCIATES, PA., a/a/o Christina Dingus, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPA... 25 Fla, L: Weekly Supp. 828a Online Reference: FLWSUPP 2509DING Insurance ~ Personal injury protection ~ Coverage — Medical expenses — Nurse practitioner adjustment is Medicare payment methodology, not utilization limit prohibited by section 627.736(5)(a)3 ~ Where PIP policy clearly and unambiguously states that insurer may utilize Medicare coding policies and payment methodologies to determine appropriate amount of reimbursement, insurer properly applied nurse practitioner adjustment to reimburse for service that was provided by nurse practitioner rather than physician CRESPO AND ASSOCIATES, P.A., a/a/o Christina Dingus, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 14-CC-024155, Division H. July 11, 2016. On Motion for Teconsideration. and/or rehearing September 13, 2017. Daryl M. Manning, Judge. Counsel: Anthony Preito, Prieto, Preito & Goan, P.A., Tampa, for Plaintiff. Randall A. Wainoris, Dutton Law Group, Tampa, for Defendant. SUMMARY FINAL JUDGMENT FOR DEFENDANT THIS MATTER came before the Court on April 11, 2016, on rehearing of Defendant, Garrison Property and. Casualty Insurance Company's Motion for Summary Final Judgment Regarding Adjustment for a Nurse Practitioner's Service filed September 30, 2015. Having considered Defendant's Motion, the Plaintiff's response « in opposition, the summary judgment evidence, the argument presented, the applicable law, and being otherwise fully advised, the Court finds 1. This is a breach of contract action alleging failure of the Defendant to properly pay Personal Injury Protection (PIP) and/or Medical Payment benefits to the Plaintiff as assignee of Christina Dingus, Defendant's insured. More specifically, the Plaintiff contends that the adjustments made to the reimbursement amounts due to the services having. been rendered by a nurse practitioner are not proper. 2. The parties agree that the Defendant's policy elected to make payment pursuant to the permissive fee schedule: methodology provided in Florida Statutes section 627.736(5)(a)(1), which allows the insurer to limit reimbursement pursuant to'a schedule of maximum charges set forth in the statute. 3. The undisputed facts demonstrate that “instead of paying 80 percent of the allowed amount (which is 200: percent of the Medicare Physician Fee Schedule), [Defendant] paid 85 percent of the 80 percent (i.c., reimbursement was a 15% reduction)” for dates of service April 18, 2014, April 23, 2014, and June 4, 2014 because the services on those dates were provided by a nurse practitioner rather than a physician -- resulting in a $146.28 reimbursement for each date of service. 4. Defendant argues that it permissibly used the adjustment for nurse practitioner services, a Medicare payment methodology, which is allowed under Florida Statutes section 627.736(5)(a)(3), and provided for in Defendant's insurance policy. 5. Plaintiff argues that the Defendant's use of the nurse practitioner adjustment is not permitted under Florida Statutes section 627.736(5), and that even if permitted by statute, the Defendant has not properly elected to use the nurse practitioner adjustment. 6. The Court finds that the nurse practitioner adjustment is allowed under Florida Statutes section 627.736(5)(a) (3), which provides that “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.” The nurse -- paying at 85% of what a physician is paid -- is a Medicare payment methodology. EXHIB! www floridalawweekly.com/fiwonline/?7page=showfile&fromsearch= 1 &file=../supfiles/issues/vol25/828a. htm&query="25+F | 1 \ 1/3 INSURANCE COMPA... 5/30/2019, : CRESPO AND. ASSOCIATES, P.A., afalo Christina Dingus, Plaintiff, v. GARRISON PROPERTY AND CASUALTY 7, Further, the Court finds that use of the adjustment for a nurse practitioner's services is not a utilization limit in this case. The adjustments made in this matter are not based on limiting the number of treatments or limiting the ability to see a particular type of provider, but rather are making an adjustment from the physician fee schedule when the service is not being performed by a physician. 8. Subsection F of the Insuring Agreement provided in Part B-1 of Defendant's insurance policy? provides: “We may utilize 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.” The Court finds this to be sufficient notice that Defendant elects to use Medicare coding policies and payment methodologies, which includes the nurse practitioner adjustment, as allowed under section 627.736(5) (a)@). Based on