As of January 1, 2010, The Centers for Medicare and Medicaid Services (CMS) no longer recognized consultation codes 99241-99245.
What are consultations?
Consultation codes are used to bill for medical office consultations with new or established patients. These codes are also used to bill for consults performed on patients in the ER or admitted under “observation status.” Consultations are permitted to be requested by physicians, physicians’ assistants, or nurse practitioners. In 2010, CMS decided to cease payments for both inpatient and outpatient consultations.
Consultations were historically reimbursable under Medicare. There are different tiers and requirements for each individual code. For purposes of Personal Injury Protection (PIP) Insurance, the question lies in what the insurer can reimburse for these codes: Must the insurer pay pursuant to the workers’ compensation fee schedule or must they pay via the Medicare fee schedule?
Application of consultation codes to PIP insurance
As a matter of course, multiple PIP insurers took heed to CMS’s decision and began paying codes 99241-99245 pursuant to the worker’s compensation fee schedule, rather than the Medicare fee schedule. Most PIP insurance carriers are currently relying on Florida Statutes §627.736(5)(a)(2)(f), in arguing that because the consultation codes are no longer payable under medicare, the insurer may limit reimbursement to 80 percent of the maximum amount under Section 440.13 (workers’ compensation fee schedule). This Florida law states:
For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians’ schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under worker’s compensation, as determined under s. 440.13.
The plaintiff’s bar disagreed with the insurance carriers’ position, and they argued that although Medicare no longer pays the specific consultation codes, the service “consultation” is still reimbursable under Medicare, albeit not under CPT codes 99241-99245. Thus, the District Court of Appeals was left with the option of deciding this narrow issue.
The plaintiff’s bar won round 1 in the case of Allstate Fire & Casualty Insurance Company v. Perez ex. rel. Jeffrey Tedder, M.D., P.A.
In Allstate, Dr. Jeffrey Tedder billed for initial consultation services pursuant to CPT Code 99245. Allstate reimbursed Dr. Tedder pursuant to Section 440.13, workers’ compensation fee schedule, arguing that consultation code 99245 was no longer recognized by Medicare Part B Fee schedule. Dr. Tedder argued that Allstate improperly reimbursed him for CPT code 99245, as the services remained reimbursable under Medicare Part B, despite the CPT code not being recognized by Medicare Part B. Dr. Tedder further alleged that Allstate breached their contract by not paying the minimum required by the PIP statute, as mandated within their policy.
It is important to note thatCMS indicated that the services represented in the consultation codes are still covered codes so long as the services are medically reasonable and necessary. So long as the medical provider is treating the patient for medically necessary reasons and so long as the services/treatment is reasonable/necessary, it follows that the PIP carrier should reimburse the provider under Medicare Part B, pursuant to the 2007 fee schedule. The second district court of appeals in Florida decided this case. The court in Allstate held that, “because the services are still covered by Medicare Part B if they are reasonable and necessary, the services are “reimbursable under Medicare Part B for purposes of Section 627.736(5)(a)(2)(f), which states that, “for all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physician’s schedule of Medicare Part B, for all .”
Ultimate Case Decision
The court in Allstate held that because the services provided by Dr. Tedder were reimbursable under Medicare part B, Allstate was not permitted to utilize the workers’ compensation fee schedule. The court further discussed the reimbursement amount owed to Dr. Tedder and stated that, “Allstate was required to reimburse Dr. Tedder under a Medicare Part B fee schedule because “the plain language of Section 627.736(5)(a)(2)(f) does not require a CPT code to be recognized by Medicare Part B if the services are otherwise covered and reimbursable under Medicare Part B.”
The Future of PIP Litigation
PIP insurers should reimburse medical providers via the Medicare Part B fee schedule for 2007.PIP insurers have misinterpreted CMS’s decision to stop payment for the actual consultation CPT Code. Moreover, despite Medicare’s decision to no longer pay the consultation codes, consulting services are still recognized and payable under Medicare. The court in Allstate explained that while CPT codes help to identify whether a service may be reimbursable under the PIP statute, CPT codes aren’t the lone indicator of whether a service is reimbursable under the statute; it is the nature of the type of service that is the controlling factor. The inherent nature of the consultation service remains reimbursable under the PIP statute, CPT codes aside. However, the fight goes on. This case may in fact be tried again, possibly in another district court of appeals altogether.
Insurers are late to react to changing laws. Some insurers will wait to see if defense counsel will appeal the district court’s decision. Thus, if a provider receives an explanation of benefits/review indicating that the insurer has paid pursuant to Section 440.13 of the worker’s compensation fee schedule, it is essential to contact an experienced PIP litigation attorney immediately to ensure this Allstate case remains the “law of the land.”
