Personal Injury Protection (PIP) insurers are constantly attempting to cut costs and maximize profits. Medicare coding and payment methodologies allow for reduced reimbursements for necessary medical treatment. National Correct Coding Initiative (herein referred to as “NCCI”) edits and Outpatient Prospective Payment System (herein referred to as “OPPS”) reimbursements are Medicare payment methodologies/coding that is very common in the world of PIP.
OPPS and NCCI edits are generally used by insurers to reimburse medical providers for necessary MRI and medical treatment/care despite no inherent power to utilize these mechanisms pursuant to the PIP statute. The PIP law is unclear when it comes to NCCI edits and OPPS. On one hand, Section 627.736(5)(a)(4) prevents insurers from limiting the number of treatments the provider can render under Medicare or workers’ compensation. Utilization limitations are completely barred by the PIP statute and remain despite the 2012 amendments to the law.
Medical Providers argue that the 2008 PIP law specifically limits Medicare coding/payment policies/methodologies to that of the Medicare Part B participating physician’s fee schedule. Insurers argue that OPPS and NCCI are simply payment methodologies that code treatment to a specified reimbursement amount.
The litigation regarding NCCI and OPPS is discussed below.
Prior to the law amendments of 2012:
NCCI: Medicare implemented NCCI coding to reduce Medicare costs. Specifically, NCCI edits combine two codes into a single code when billed together. For example, chiropractors would bill CPT codes 97140(manual therapy) and 97124 (massage therapy) on the same visit. Thus, by refusing payment for the massage therapy code, the PIP insurer reduces costs, as massage therapy is thought of as part of manual therapy. Insurers took the position that NCCI edits are incorporated into the PIP law because Medicare is incorporated in the PIP Statutes.
The proper analysis requires one to look at the Legislative intent. It is clear that the Legislature solely included the participating physicians’ schedule of Medicare Part B into the PIP law. Had the Legislature intended to include NCCI edits and other such Medicare payment/utilization methodologies it had the opportunity to do so. Insurers’ utilization of the NCCI edits was the subject of an important decision reached by the Fifth District Court of Appeals in 2012.
In SOCC, PL. v. State Farm Mut. Auto. Ins. Co., 95 So. 3d 903 (Fla. 5th DCA 2012), the Fifth District Court of Appeals (DCA) ruled in favor of the medical providers. Specifically, the 5th DCA held that “Florida Statutes Section 627.736(5)(a)(4) supports a finding that the Legislature did not intend for the NCCI edits or other limitations imposed in Medicare cases to be imposed under PIP.” The Court continued, “This language clearly prohibits an insurance company from treating PIP claims as if they were Medicare claims.” The 5th DCA likewise held that NCCI edits were impermissible utilization limits. Id. Thus, prior to 2012, the PIP law barred the insurer from applying any NCCI edits limiting treatment/services.
In light of the SOCC, PL. v. State Farm case, the insurers lobbied the Legislature to include all aspects of Medicare into the Florida PIP law. The lobbying was successful in that the 2012 PIP law allows insurers to apply Medicare payment methodologies and coding policies when reimbursing a provider. It is important to note that utilization limits continue to be prohibited despite the language of the 2012 PIP law. We are currently litigating NCCI cases post 2012. This author is not aware of any county court or district court decisions ruling on whether NCCI edits are impermissible utilization limits. Our tip is to continue sending demand letters for the difference between the proper Medicare fee schedule reimbursement and what was paid via the NCCI edits reduction.
OPPS: The PIP law was revised in 2008 to include very specific language concerning reimbursement for Medicare services/care. Specifically, the “floor” or lowest amount payable for Medicare-based services including MRIs was and continues to be the “allowable amount under the participating physicians’ schedule of Medicare Part B” provision.” AFO Imaging, Inc. v. Peak Property and Casualty Ins. Corp., 17 Fla. L. Weekly Supp. 368a (2010) . The legislative analysis associated with the 2008 legislation states, “under current law, insurers are allowed to limit reimbursement for PIP benefits to 80% of 200% of the Medicare Part B fee schedule for specified medical services. The amendment clarifies that PIP reimbursement for medical services would be based on 200% of the allowable amount under the participating physician’s schedule of Medicare Part B for 2007. Thus, it follows that insurers must reimburse medical providers no less than “the allowable amount under the participating physicians’ schedule of Medicare Part B for 2007.” AFO Imaging, Inc. v. Peak Property and Casualty Ins. Corp., 17 Fla. L. Weekly Supp. 368a (2010). The Second District Court of Appeals in Nationwide Mut. Fire Ins. Co. v. AFO imaging, Inc., 71 So. 3d 134 (Fla. 2d DCA 2011) held that Medicare Part B’s participating physicians schedule is the only aspect of Medicare referred to by the Florida PIP law. Furthermore, the Second DCA in Nationwide explained that the minimum payment due for an MRI, is in fact, the Medicare Part B participating physicians schedule; the insurer cannot unilaterally utilize OPPS as OPPS is not expressly described by Florida Statutes Section 627.736(5)(a)2.f, (a)(3) and (a)(4) when determining the amounts due for MRI services. Id.
The New PIP law does not specifically mention OPPS. The New PIP Law does allow the insurer to use the Medicare Coding policies and payment methodologies. The question becomes whether OPPS is strictly a Medicare payment methodology or whether it crosses the line into utilization limit territory.
We are currently litigating OPPS cases and hope to have an answer from our county court judges soon enough. It is important to allow an experienced PIP Litigation team to evaluate whether or not the insurer applied improper Medicare coding. It is time to stand up to the PIP carriers and litigate for what is rightfully yours!