STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. STAND UP MRI OF TALLAHASSEE, P.A. A/A/O SHERI ANDREWS, NEILL LOPEZ, MIRIAM ALBERONI-FARFAN & MARSHAY PENDER

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant,

v.

PAN AM DIAGNOSTIC SERVICES, INC. d/b/a WIDE OPEN MRI a/a/o
MARSHAY PENDER, STAND UP MRI OF TALLAHASSEE, P.A. a/a/o
SHERRI ANDREWS, PALMS MRI DIAGNOSTIC IMAGING CENTER
INC. a/a/o MIRIAM ALBERONI-FARFAN, and ACCU-MED
DIAGNOSTIC CENTERS, LLC a/a/o NEILL LOPEZ,
Appellees.

No. 4D21-487

[May 26, 2021]

Consolidated appeal from the County Court for the Seventeenth
Judicial Circuit, Broward County; Kathleen McCarthy and John D. Fry,
Judges; L.T. Case Nos. COCE16-11308, CACE19-9308, COSO14-4705,
CACE19-11397, CONO13-13847(70), CACE19-10122, COCE16-14754,
and CACE19-1752.

Tracy T. Segal of Akerman LLP, West Palm Beach, and Nancy A.
Copperthwaite and Marcy Levine Aldrich of Akerman LLP, Miami, for
appellant.

Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, and Howard
W. Myones of Myones Legal, PLLC, Fort Lauderdale, for appellee Stand-Up
MRI of Tallahassee, P.A.

Chad A. Barr of Chad Barr Law, Altamonte Springs, for appellee Palms
MRI Diagnostic Imaging Center, Inc.

Mac S. Phillips of Phillips Tadros, P.A., Fort Lauderdale, for appellee
Accu-Med Diagnostic Centers, LLC.

Virginia M. Best and Johanna M. Menendez of Best & Menendez, P.A.,
Miami, and Yigal D. Kahana of Kahana Law, P.A., North Miami, for appellee
Pan Am Diagnostic Services Inc. d/b/a Wide Open MRI.

PER CURIAM.
 This consolidated appeal arises from four personal injury protection
(“PIP”) cases that were decided on cross-motions for summary judgment
in the county court.

All cases involved MRI providers who rendered services to State Farm’s
insureds following automobile accidents. In 2013, State Farm reimbursed
the providers for MRIs performed on State Farm insureds. In calculating
the reimbursement amounts, State Farm applied Medicare’s Multiple
Procedure Payment Reduction (“MPPR”) to reduce the payments. The
providers later filed suit, claiming the reimbursement was insufficient. On
competing motions for summary judgment, the county court entered final
judgments in favor of the providers, finding that State Farm breached its
contractual obligations under the policy by paying less than the statutory
floor for reimbursing benefits under a PIP claim.

For the reasons stated in State Farm v. Stand-Up MRI of Boca Raton,
P.A., No. 4D21-310 (Fla. 4th DCA May 26, 2021), we agree with State
Farm’s contention that the trial courts misinterpreted the PIP statute and
the insurance policy by finding that section 627.736(5)(a)2. sets an
absolute floor for PIP reimbursements that cannot be modified by
authorized Medicare payment methodologies, such as the MPPR rule. We
also conclude, as we did in Stand-Up MRI, that State Farm’s policy
provided adequate notice of its intent to apply the MPPR rule.

We write to address an additional issue not covered in Stand-Up MRI—
whether the application of the MPPR to these PIP claims constituted an
improper utilization limit under the PIP statute.

The MPPR is Not an Improper Utilization Limit

Following the 2012 amendments to the PIP statute, section
627.736(5)(a)3., Florida Statutes (2013), specifically provides that insurers
can apply payment methodologies under Medicare Part B when issuing
reimbursements to providers under PIP, so long as the payment
methodology is not a utilization limit:

[S]ubparagraph 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.

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(emphasis added).

The plaintiff providers argued below that State Farm should not be
permitted to apply the MPPR because it is an improper utilization limit.
We agree with those Florida circuit courts, sitting in their appellate
capacity, which have ruled that the MPPR is an authorized payment
methodology, not an improper utilization limit. See, e.g., State Farm Mut.
Auto. Ins. Co. v. Millennium Radiology, LLC, 27 Fla. L. Weekly Supp. 998a,
2019 WL 8301181, at *3 (Fla. 11th Cir. Ct. Feb. 8, 2019); AFO Imaging,
Inc. v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 165b (Fla.
13th Cir. Ct. Mar. 15, 2016); Multicare Rehab., LLC v. Progressive Select
Ins. Co., 24 Fla. L. Weekly Supp. 171a (Fla. 17th Cir. Ct. Jan. 14, 2016).

As Judge Blumstein explained in Millennium:

MPPR is basically a payment methodology used by the
Medicare program to reduce payment for medical services
when two or more services have been rendered on the same
day, to the same patient, by the same physician, in the same
session. Performing all services in one session reduces time,
labor, and general costs associated with performing multiple
procedures.

2019 WL 8301181, at *2. While the MPPR places limitations on the
amount of reimbursement available when more than one medical service,
such as an MRI, is provided to the same patient in the same session, “[i]t
is not a utili[z]ation limit simply because it limits reimbursements.” Id. at
*3 (quoting SOCC, P.L. v. Progressive Am. Ins. Co., 24 Fla. L. Weekly Supp.
163b (Hillsborough Cty. Ct. Apr. 18, 2016) (finding that “MPPR is not a per
se limitation on utilization”)).

“A limit on utilization means a limitation on the use or duration of a
particular service or item.” Id. (citing Interventional Spine Ctr., LLC, v.
Progressive Am. Ins. Co., 23 Fla. L. Weekly Supp. 610a (Miami-Dade Cty.
Ct. Oct. 7, 2015)). “MPPR in no way limits the uses, duration, or the
number of procedures, a provider may perform on a patient or that a
patient may access. MPPR is simply a payment reduction employed due
to the economic efficiencies achieved by performing multiple procedures in
the same day.” Id.; see also State Farm. Mut. Auto. Ins. Co. v. Millennium
Radiology, LLC, 26 Fla. L. Weekly Supp. 871a, 2019 WL 8375937, at *4
(Fla. 11th Cir. Ct. Jan. 9, 2019) (“We find that MPPR does not limit the
uses, duration, or the number of procedures a provider may perform on a
patient or that a patient may access.”); Total MD v. Progressive Am. Ins.

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Co., 2019 WL 3798446, *3 (Fla. 17th Cir. Ct. Apr. 9, 2019) (“MPPR does
not limit services and care in any way, but is intended to appropriately
value secondary services performed in the same office setting, to the same
patient, on the same day, and to account for cost efficiencies realized when
this occurs.”).

As Judge Berkowitz wrote in SOCC, a limitation on cost does not
necessarily mean a limitation on services:

By definition, any and every cost containment measure, when
applied to reimbursement for health care, results in a
reduction of remuneration for a provider’s time and services,
and as a result may have some influence on the manner and
method of treatment. A determination of a reasonable charge
for provider services, however, does not mean, a fortiori, that
such limitation on reimbursement deprives a patient of
necessary treatment or precludes a health care provider from
utilizing necessary and reasonable care. If that were the
Legislature’s purpose in its latest iteration of the PIP Statute,
then no coding policies or payment methodology would be
permissible. The Courts have clearly said that the use of such
methodologies are permissible.

24 Fla. L. Weekly Supp. 163b, ¶20. SOCC recognized that while the MPPR
“is a statutorily permitted means by which to determine the appropriate
amount of reimbursement for such defined treatments[,] [t]his does not
mean, however, that the impact of any such payment methodology must
go unchallenged if use of such methodology in fact results in a limitation
on the number of treatments or results in other utilization limits.” Id. at
¶ 17. Here, the plaintiff providers presented no evidence that application
of the MPPR in these cases resulted in any limitation of the services
provided to the insureds. 1

1 Palms MRI referenced the affidavit it submitted in support of its motion for
summary judgment, in which Jeff Howard, “an expert in evaluating, interpreting,
utilizing and calculating Medicare fee schedules, Medicare coding policies and
Medicare methodologies,” opined that the MPPR is a utilization limit. However,
his conclusion was based on observations about the MPPR in general and not the
MPPR as applied to the reimbursements in this case. Whether an item
constitutes a utilization limit depends on the facts of the case. See Virga v.
Progressive Am. Ins. Co., 215 F. Supp. 3d 1320, 1326 (S.D. Fla. 2016) (noting
that “[o]nly through discovery can the Court determine whether the manner in
which the Defendant applies the MPPR demonstrates its use as either a payment
methodology or a utilization limit”).

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 We conclude that the MPPR is not an improper utilization limit, and
therefore the PIP statute allows insurers to apply the MPPR in reimbursing
providers for services provided to the same patient during the same
session once the fee schedule is properly elected.

We reverse the summary final judgments entered below in favor of
appellees and remand to the county court to enter summary judgment in
favor of State Farm.

GROSS, GERBER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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