On April 7, 2020, Geico sued “The Right Spinal Clinic, Inc” along with their medical director, LMT employees, and four other clinics that shared the same medical director.
The main allegations were that:
(1) the medical director was not performing the duties required under Florida Statute 400.9935; because if he had been performing those duties then he would not have allowed:
(2) LMTs to perform and bill physical therapy; and
(3) the clinic to bill 99204 for examinations that did not meet the requirements of a level 4 examination;
(4) the clinic to provide every patient with an “emergency medical condition” regardless of pain reported, injuries sustained, and extremely low property damage;
(5) treatments were unnecessary because Right Spinal’s patients “received a substantially similar physical therapy treatment plan.”
On July 6, 2022, the Middle District Court issued an Order ruling in favor of Geico stating:
Does the No-Fault Law prohibit reimbursement for physical therapy services that LMTs perform? If it does, Geico was not required to pay $690,251.44 because it is undisputed that LMTs provided all of Right Spinals physical therapy services. . . .The statute prohibits billing for an LMT’s services, thus Geico is entitled to summary judgment on the unjust enrichment claim as it relates to physical therapy services.
In other words, the statute “excludes massage from the types of health care services that are eligible for PIP reimbursement” and it “prohibits massage therapists from receiving PIP reimbursement.” Geico Gen. Ins. Co. v. Beacon Healthcare Ctr, Inc..
The latter exclusion is determinative. It is undisputed that LMTs performed all the physical therapy services that Right Spinal billed to Geico. The No-Fault Law “flatly precludes reimbursement from LMTs providing advanced physical therapy services. See State Farm Mut. Auto. Ins. Co. v. Muse. And so, Right Spinal’s services are not reimbursable. See S. Owners Ins. Co. v Hendrickson (concluding that the statute “explicitly prohibits” an LMT “from being reimbursed for medical benefits”).
Defendants doubt that Florida law would completely exclude LMTs from the PIP regime. But it does. And it does so “explicitly” and by its “plain text.”
A doctor’s supervision is not an exception to the rule prohibiting LMT reimbursement.
Florida law limits a doctor’s ability to delegate duties. For example, doctors may delegate some tasks to a registered nurse, a licensed physician’s assistant, or a medical assistant. See FS 458.303(2); FS 458.347(4)(d), (h); and FS 458.3485. . . . Defendants cite no case, statute, or regulation suggesting that a doctor could legally delegate physical therapy services to LMTs.
Basically, the Court’s ruling held that if an LMT touches a patient then the bills are not reimbursable. The Court also stated that “a doctor’s supervision is not an exception to the rule prohibiting LMT reimbursement.” Right Spinal lost the case on that issue and was ordered to pay $690,251.44 to Geico for the PT codes that were billed. The other issues on the case like upcoding exam codes, providing all patients with EMC opinion, and pre-determined treatment protocol were set to go to trial before a jury. Right Spinal decided to appeal the Order to the 11th Circuit Court of Appeals.
On October 24, 2024, the 11th Circuit Court of Appeals issued their Order. It agreed 100% with the Middle District Court’s ruling. The Court made things clearer by stating:
. . . massage therapists cannot be reimbursed under Florida’s PIP law for the services they provide, regardless of whether they are supervised.
So, what are medical providers billing therapy to PIP going to do?
Before jumping to conclusions, remember “high emotions = low intelligence”. Let’s take a practical approach and look to the laws to come up with a sound plan. I am laying it out here so all the chiropractors/medical providers in Florida billing PIP can utilize the information for free.
The simple answer to this question, is hire licensed Certified Chiropractic Physician Assistants (CCPA) and/or get your current staff to get the license. There is currently only one provider for this course that I am aware of. See link.
I’m providing citations to the materials I used so your lawyer can fact check the information.
1.If you have an LMT working for you then you need to have them put their license “inactive” in the immediate future. I wouldn’t fire them. They have worked for you and are hopefully a good employee. If they are not an active LMT you should be fine.
2.I’ve heard many chiropractors say, “I’m going to hire someone off the streets with no prior experience and train them to treat my patients.” Let’s discuss this statement from a legal perspective.
First, FS 627.736(5)(d) states that medical providers must comply with (1) the CMS 1500 instructions on the backside of the form; (2) the AMA CPT Editorial Panel and HCPCS; (3) the CPT codebook; and (4) the statement of medical services may not include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services.
So, let’s see what the CPT Codebook says about having a person off the streets with no prior experience treat your patients. Under the Physical Medicine and Rehabilitation there are two categories. One does not require direct one-on-one patient contact (i.e. your unlicensed person under your supervision should be able to provide the services under your direct supervision). The other category of codes requires one-on-one patient contact by a qualified healthcare professional.
Codes that do not require direct one-on-one patient contact:
97010 hot or cold packs; 97012 traction mechanical; 97014/G0283 electrical stimulation unattended; 97016 vasopneumatic devices; 97018 paraffin bath; 97022 whirlpool.
For these codes an unskilled person off the streets can absolutely perform them according to the CPT Codebook definition of those codes.
Codes that do require direct one-on-one patient contact:
97032 unattended electrical stimulation, 97033 iontophoresis, 97034 contrast bath, 97035 ultrasound, 97036 hubbard tank, 97039 unlisted modality (specify type and time if constant attendance)
For these codes, the CPT Codebook states “require direct one-on-one patient contact” but it DOES NOT STATE one-on-one with “who”- i.e. unlicensed vs licensed person. You can see the next section starting with 97110 states very clearly “by a qualified healthcare professional”…this is very interesting. Words matter! However, to play it safe, I would suggest having a person with a license perform this work.
Codes that do require direct one-on-one patient contact by a qualified healthcare professional:
97110 therapeutic exercises to develop strength and endurance, range of motion and flexibility; 97112 neuromuscular reeducation of movement, balance, coordination, kinesthetic sense, posture, and or proprioception for sitting and or standing activities; 97113 aquatic therapy with therapeutic exercises; 97116 gait training includes stair climbing; 97139 unlisted therapeutic procedure (specify); 97140 manual therapy techniques; 97530 therapeutic activities direct one-on-one patient contact (use of dynamic activities to improve functional performance); 97535 self-care/home management training (i.e. activities of daily living and compensatory training, meal preparation, safety procedures, and instructions in the use of assistive technology devices slash adaptive equipment) direct one-on-one contact
For these codes, when billing PIP, a qualified (i.e. licensed) healthcare professional must perform these services. This would include a chiropractor or a CCPA. The Florida PIP statute very clearly adopts the rules from the CPT Codebook so only a licensed healthcare professional can perform these services. When billing health insurance the CPT Codebook would allow you to use an LMT, however, the PIP statute does not.
Just to be clear, an LMT cannot perform any of these services if PIP is involved based on the Court’s ruling in the Right Spinal case.
Also, the CPT Codebook defines “qualified healthcare provider” as a person with a license; anyone else involved in patient care would be considered “clinical staff” (i.e. a person without a license but who is operating under the direct supervision of a qualified healthcare provider).
Clinical staff can perform services, even without a license as long as the supervising provider feels he/she is able to perform the service. See link. See link. Clinical staff are employees (leased or contracted) who do not individually report their service. Clinical staff includes medical assistants, licensed practical nurses, registered nurses, and others. See link. However, if your state requires these certain services to be performed by a licensed individual, then he/she must be licensed. In this scenario where the individual is not licensed, the service would be provided incident-to. Just an FYI, the definition of “clinical staff” is very vague. Either way, an LMT cannot touch a PIP patient based on the Court’s interpretation of the PIP statute in the Right Spinal case.
3.Interesting plot twist: Florida Board of Chiropractic
Presumably, based on this “clinical staff” rule, the Florida Board of Chiropractic issued an Order (link) stating that a person who is not licensed, whom the chiropractor knows to be trained and competent, perform under myofascial release either mechanically or manually. This doesn’t mean that a person with an LMT license can perform these services. This would only apply to a person with no LMT license “off the streets.” It only apply to myofascial release. None of the other codes.
The Florida Board of Chiropractic also issued an Order (link) stating that a chiropractor may lawfully delegate the performance of PT modalities to unlicensed assistants, whom the chiropractor knows to be trained and competent.
Where there a rule or law is vague the Florida Board of Chiropractic can provide clarity. However, the Board does not override the PIP statute where it says that the CPT codebook is controlling which states that manual therapy must be performed by a qualified healthcare professional (i.e. licensed) direct one-on-one. Also, when a trillion dollar insurance company wants to sue a doctor who doesn’t have $1,000,000 to spend in legal fees who is going to care what the Board’s Order says? I would always recommend acting like your family’s livelihood depends on it and play it safe- start the process of getting your staff registered for the CCPA course. Better to be one step ahead of the insurance company.
4.What the Hell Am I Supposed To Do?
1.Have all your LMTs give up their license and/or inactivate their license
2.Get your former LMTs to immediately register for a CCPA license. See link.
3.Remove the LMT licenses off the walls in your lobby since they are inactive
4.Stop listing staff names in your notes “therapy provided by Katie”
5.Only have the supervising doctor or CCPA sign the notes and bills;
6.Hire unlicensed people “off the street” to perform 97010, 97012, 97014/G0283, 97016, 97018, and 97022 under your supervision.
7.Perform the higher paying CPT codes by a qualified healthcare professional (i.e. licensed) which will usually be the chiropractor.
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