15 Fla. L. Weekly Supp. 726a

Insurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Authoritative treatises designated by administrative rule prohibit billing range of motion and muscle tests separately from chiropractic manipulation treatment where no coding modifiers are used — No merit to argument that PIP statute allows trial court to consider authoritative treatises designated by rule only if CPT book and items it references are ambiguous — Insurer is not required to pay unbundled charges

Affirmed at 16 Fla. L. Weekly Supp. 396a (Tran Chiropractic & Wellness Center, Inc. v. State Farm Mut. Auto. Ins. Co.).

TRAN CHIROPRACTIC & WELLNESS CENTER, INC., as assignee of David Leadbetter, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 06-33537, Division M. March 19, 2008. Paul L. Huey, Judge. Counsel: Philip A. Friedman, Bonifield, Friedman & Leifer, P.A., Tampa. Robert Oxendine, Oxendine & Oxendine, P.A., Tampa.

FINAL JUDGMENT

This action came before the Court on bench trial during the week of January 14, 2008. After observing the testimony of the parties and witnesses, reviewing the exhibits, listening to argument of counsel and reviewing applicable law, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. That Plaintiff, a medical provider, accepted an assignment of benefits from its patient, David Leadbetter, for its care and treatment of Mr. Leadbetter with regard to a March 11, 2006 motor vehicle accident. The assignment granted to Plaintiff the rights and benefits under Defendant’s policy of Personal Injury Protection (PIP) insurance, deemed to be compliant with Florida Statutes §627.730-627.7405.

2. That Plaintiff provided causally related, medically necessary and reasonable treatment to Mr. Leadbetter with regard to a March 11, 2006 motor vehicle accident.

3. That Plaintiff timely billed Defendant for said treatment on April 21, 2006.

4. That Defendant paid some of the charges but failed to pay for $385.00 of treatment, specifically identified as 7 CPT codes, three code 95851 (“range and motion”) and four code 95832 (“muscle tests”) on date of service April 12, 2006 (hereafter “Unpaid Charges”). Prior to trial, Plaintiff withdrew two of the CPT section 95832 treatments. Plaintiff alleges that it performed the “range and motion” and “muscle” tests as separate procedures and not as part of the pre-service work for CPT Code 98941, Chiropractic Manipulation Treatment, which was separately billed for and paid in full. That Plaintiff contends the services underlying the “Unpaid Charges” can be and were properly performed and billed separately. Defendant refutes that contention, alleging that the billing amounted to an unlawful “upcoding.” See §627.736(5)(b)(1)(e), FSA.

5. That because Defendant did not challenge that the services themselves were not medically necessary, causally related, and reasonably priced, it is for this Court to determine only if the services at issue in the Unpaid Charges can be billed and reimbursed separately from the other treatments/services also billed and performed that same day. In that regard, the Court’s analysis is controlled by Florida Statutes §627.736(5)(d) and §627.736(5)(b)(l)(e), which state, in relevant part:

All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 form, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. All billings for such services rendered by providers shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS), or ICD-9 in effect for the year in which services are rendered and comply with the Centers for Medicare and Medicaid Services (CMS) 1500 form instructions and the American Medical Association Current Procedural Terminology (CPT) Editorial Panel and Healthcare Correct Procedural Coding System (HCPCS). All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, including Degrees or Credentials.” In determining compliance with applicable CPT and HCPCS coding, guidance shall be provided by the Physicians’ Current Procedural Terminology (CPT) or the Healthcare Correct Procedural Coding System (HCPCS) in effect for the year in which services were rendered, the Office of the Inspector General (OIG), Physicians Compliance Guidelines, and other authoritative treatises designated by rule by the Agency for Health Care Administration. . . .For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.

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[A]n insurer. . .is not required to pay a claim or charges. . .[f]or any treatment or service that is upcoded, or that is unbundled when such treatment or services should be bundled. . . .[T]o facilitate prompt payment of lawful services, an insurer may change codes that it determines to have been improperly or incorrectly upcoded or unbundled, and may make payment based on the changed code, without affecting the right of the provider to dispute the change by the insurer, provided that before doing so, the insurer must contact the health care provider and discuss the reasons for the insurer’s change and the health care provider’s reason for the coding, or make a reasonable good faith effort to do so. . .(emphasis added).

6. That this Court has reviewed the American Medical Association (AMA) Current Procedural Terminology (CPT) for the year 2006, the year in which services were rendered. It has also reviewed numerous CPT Assistant articles, American Medical Association opinion letters (Defendants’ Exhibits 1 and 2), Office of Inspector General (OIG) publications, and National Correct Coding Initiative (NCCI) edits, as well as observed testimony from both parties’ experts in the area of coding, to assist it in making the legal conclusions set forth below.

CONCLUSIONS OF LAW

This Court has authority to make determinations regarding the legal propriety of the “coding” of PIP billing, as such determinations are one of statutory construction to be decided as a matter of law. That by its order dated January 7, 2008, the Court determined, over the objections of Defendant, that the only issues remaining in this case were questions of law to be determined by the Court, not a jury. See, DiBlasio, M.D., P.A. v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 1027a (15th Cir. Ct. App. 2007). After taking testimony and hearing argument for three days, the Court makes the following legal conclusions:

1. That Defendant properly preserved and pled its defenses. See, Progressive Consumers Insurance Company v. Newman, D.C., Case No. 05-3335, Div. “X” (13th Judicial Circuit, July 2007) [15 Fla. L. Weekly Supp. 129a].

2. That it is undisputed that Plaintiff performed the services at issue, and that such services were reasonable, necessary and related as required by Florida’s PIP statutes.

3. That Florida Statutes §627.736(5)(d) is unambiguous. It requires compliance with the Office of Inspector General Physician Compliance Guidelines and other authoritative treatises designated by rule by the Agency for Health Care Administration. Those authoritative, controlling documents include the Compliance Program Guidance for Individual and Small Group Physician Practices developed by the Office of the Inspector General, located at Vol. 65, No. 194 Federal Register, pp. 59434-59452 (October 5, 2000). Page 59439 includes a section entitled “Coding and Billing.” It references “Failure to Use Coding Modifiers,” the CPT Manual and the NCCI. The explicit, unambiguous provisions of the NCCI prohibit Plaintiff from billing the Unpaid Charges separately from Chiropractic Manipulative Treatment under the circumstances at issue here.¹

4. That Defendant essentially raised two defenses: (1) “Upcoding” or “Unbundling” and (2) failure to satisfy certain statutory requirements regarding content of the physicians’ records. Based primarily upon applicable Florida Statutes, the extremely convincing testimony of Danisha Torres-Lich, Defendant’s expert, and the unambiguous provisions of §627.736(5)(d), range of motion (CPT 95051) and muscle testing (CPT 95832) codes may not be billed separately, i.e., as separate procedures on the same date as other codes, from Chiropractic Manipulative Treatment (CPT 98941). Plaintiff’s argument that §627.736(5)(d) allows a judge to consider the Healthcare Correct Procedural Coding System in effect for the year in which services were rendered, the Office of the Inspector General, Physicians Compliance Guidelines, and other authoritative treatises designated by rule by the Agency for Health Care Administration only if the CPT book and items it references are ambiguous is not convincing and ignores tenets of statutory construction.

5. That with regard to the second defense, the Court finds that the Plaintiff satisfied the §627.736, FSA, requirements regarding documenting its billing.

6. Therefore, Defendant was not and is not required to pay the Unpaid Charges.

It is hereby ORDERED AND ADJUDGED:

That Plaintiff TRAN CHIROPRACTIC & WELLNESS CENTER, INC. a/a/o DAVID LEADBETTER, shall recover nothing from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY shall go hence without day.

The Plaintiff shall not recover, as were withdrawn, two additional units of 95832, also billed on April 12, 2006.

The Court reserves jurisdiction to consider claims for reasonable attorney’s fees and costs.

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¹It is expressly noted that Plaintiff did not use any “coding modifiers.” Doing so may or may not have made a difference.