16 Fla. L. Weekly Supp. 315a

Online Reference: FLWSUPP 164CHIRO

Insurance — Personal injury protection — Declaratory judgment — Where medical provider has no treatment records for procedures billed to insurer, court concludes that provider did not perform procedures and improperly billed insurer in false and misleading manner — Where provider has no record of performing or interpreting x-rays on date reflected in bill, court concludes that provider did not perform x-rays for which it billed insurer — Where provider’s records do not establish that myofascial release billed under one CPT code was performed to separate region of insured’s body than chiropractic manipulation billed for same date of service under different CPT code, provider improperly billed for myofascial release and used modifier indicating that procedures were performed to different regions of body in false and misleading manner — Because bills were not properly completed, insurer is deemed not to have received notice of bills and does not owe benefits for bills

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and STATE FARM FIRE AND CASUALTY COMPANY, Plaintiffs, v. CHIROPRACTIC ONE, INC., Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 05-CA-5847, Division 37. February 10, 2009. Maura T. Smith, Judge. Counsel: Kenneth P. Hazouri, deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando. Sylvia A. Grunor, Weiss, Grunor, Weiss, Maitland.

FINAL SUMMARY JUDGMENT at 18 Fla. L. Weekly Supp. 868a.]

ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

THIS MATTER came before the Court on May 30, 2008, September 16, 2008, and January 7, 2009, on the Motion for Partial Summary Judgment (Certificate of Service Date February 18, 2008) (the “Motion”) of Plaintiffs, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and STATE FARM FIRE AND CASUALTY COMPANY (collectively “State Farm”), and the Court having reviewed the Motion and the evidence submitted both in favor and in opposition to it, having heard the oral argument of counsel, and being otherwise fully advised in the premises, hereby makes the following findings and conclusions of law:

Factual and Procedural Background

State Farm filed this action against Defendant, CHIROPRACTIC ONE, INC. (“Chiro One”), to obtain a declaration as to whether or not State Farm owes unpaid personal injury protection (“PIP”) benefits and, in some cases, medical payments coverage (“MPC”) to Chiro One for its alleged treatment of certain of State Farm’s insureds following automobile accidents. State Farm’s Motion addresses certain chiropractic treatment provided by Chiro One to four patients/insureds: Gerard Malone, Carmen Baez, Holly Minge, and Irma Howell (sometimes collectively referred to as the “Insureds”). State Farm requests a partial summary judgment ruling that certain bills issued by Chiro One to State Farm for treatment of the Insureds, and the charges set forth therein, are not compensable under section 627.736, Florida Statutes (“§ 627.736”), which governs PIP or “No-Fault” insurance in Florida.

This Court has reviewed deposition transcripts of Dr. Bocco, (2/20/06, 8/3/06, 4/11/06, 12/21/06 and 3/27/07); Dr. Kosinsky (7/8/08 and 12/9/08); Irma Howell (EUO 5/11/05) and has deposition transcripts of Mr. Talley.

1. Chiro One’s billing director, Irma Howell, was a State Farm Insured who treated with Chiro One following an October 17, 2004, auto accident. Chiro One issued bills to State Farm for the treatment allegedly provided to Ms. Howell following this accident, and certain of these bills are encompassed within State Farm’s Motion. Chiro One billed State Farm for Chiropractic Manipulation (98941), hot/cold packs (97010), and electrical muscle stimulation (97014) allegedly performed on Ms. Howell on October 25, 2004, even though her treatment records do not document these procedures being performed on her. In her examination under oath (“EUO”), which is in evidence, Irma Howell admitted that this was a “problem” with Chiro One’s billing, for which she had no explanation.

Chiro One also billed State Farm for Myofascial Release (97140) allegedly performed on Irma Howell on at least 11 different dates of service even though Chiro One’s treatment records contain no documentation of this procedure being performed on her. Each time Irma Howell was asked about these charges in her EUO, she admitted they were a “problem,” for which she had no explanation. Ms. Howell expressly admitted in her EUO that the repeated irregularities in Chiro One’s billing of State Farm for treatment allegedly provided to her were a “big problem.”

Since Chiro One has no record of performing the above-described procedures on Irma Howell for the subject dates of service, the Court must conclude that Chiro One did not perform the procedures and improperly billed State Farm for them in a manner that is false and misleading.

2. On August 25, 2003, Chiro One issued a bill to State Farm for Chiro One’s initial examination of Holly Minge, which contains the following three charges totaling $425 for X-rays that were allegedly performed on Holly Minge and reviewed by Chiro One’s physician on August 21, 2003: i) 72050 (cervical X-rays, minimum of four views); ii) 72070 (thoracic X-rays, two views) and iii) 72100 (lumbosacral X-rays, two-three views).

Chiro One’s 8/25 Bill and X-ray report on Holly Minge represented to State Farm that Chiro One’s physician reviewed the X-rays and made specific findings regarding them on August 21, 2003. The depositions of Doctors Kosinsky and Bocco establish that Chiro One did not expose any of Ms. Minge’s X-ray films until September 2, 2003, at the earliest — 12 days after August 21, 2003. Accordingly, the evidence conclusively establishes that the representations contained in Chiro One’s 8/25 bill and X-ray report on Holly Minge are false and misleading. Indeed, Chiro One’s patient file on Holly Minge does not contain any record establishing or demonstrating that Chiro One ever performed thoracic X-rays on her. Since Chiro One has no record of performing or interpreting X-rays of Holly Minge’s thoracic spine on August 21, 2003, the Court concludes that Chiro One did not perform the thoracic X-rays for which it billed State Farm.

3. Chiro One billed State Farm under CPT Code 97112 performed on Carmen Baez on the following dates of service: 1/19, 1/21, 1/26, 1/29, 1/30, 2/4, 2/6, 2/11, 2/16, 2/18, 2/27, 4/21, 4/28, 5/5, 5/21, and 7/13/04. Chiro One’s records, however, contain no documentation of any service that could be properly billed under the 97112 code as being performed on Carmen Baez on these dates. Furthermore, Dr. Bocco testified he did not know what procedure Chiro One could have performed to justify billing State Farm for a 97112 procedure on these dates. Since Chiro One has no record of performing any procedure on Carmen Baez properly billed as 97112 for the subject dates of service, the Court must conclude that Chiro One did not perform any such procedures and improperly billed State Farm for them in a manner that is false and misleading. Defendant has offered no evidence to contradict this finding; even after twice deposing Dr. Kosinsky. Accordingly, the Court takes the testimony of Dr. Bocco as undisputed.

Chiro One issued bills to State Farm for treatment of the Insureds that contained charges for: a) chiropractic manipulative therapy reported as 98941 (“Chiropractic Manipulation”); and b) myofascial release reported as 97140 (“Myofascial Release”) performed on the same date even though the subject treatment records do not establish that these two procedures were performed to different regions on the Insured’s body. Each time Chiro One billed the 97140 procedure on the same date and bill as a 98941 procedure, Chiro One appended a “59” modifier to the 97140 (i.e., “97140-59”), which represented to State Farm that the Myofascial Release (97140) was performed to a different region of the body than the Chiropractic Manipulation (98941) and is, therefore, properly compensable. The March 1999 issue of the CPT Assistant issued by the AMA, which is in evidence, explains the circumstances under which chiropractors may properly report a charge for a 97140 procedure on the same bill, containing a charge for a 98941 procedure performed on the same date as follows:

Under certain circumstances, it may be appropriate to additionally report CMT/OMT codes in addition to code 97140. For example, a patient has severe injuries from an auto accident with a neck injury that contraindicates CMT (Chiropractic Manipulation Therapy) in the neck region. Therefore, the provider performs manual therapy techniques as described by code 97140 to the neck region and CMT to the lumbar region. As separate body regions are addressed, it would be appropriate in this instance to report both codes 97140 and 98940. In this example, the modifier -59 should be appended to indicate that a distinct procedural service was provided. However, if CMT and the services as described by 97140 were performed to the same region, then it would not be appropriate to separately report code 97140.

Pursuant to the AMA’s CPT Assistant, incorporated by provisions of § 627.736(5)(d), a chiropractic clinic cannot properly bill for a 97140 procedure when it has also billed for a 98941 procedure performed to the same region of the patient’s body on the same date.

Chiro One’s owner, Dr. Richard Bocco’s, deposition testimony confirmed that Chiro One could not be paid PIP or MPC benefits for both Chiropractic Manipulation (98941) and Myofascial Release (97140) when these services were performed to the same region of the patient’s body on the same date.

The OIG has issued a Report, which is in evidence, on healthcare providers’ abuse of the -59 multiplier that contains the following statement regarding the proper use of this modifier:

DOCUMENTATION REQUIREMENTS

Providers must maintain adequate documentation in the medical record to support the services billed. Section 1833(e) of the Social Security Act requires that providers furnish “such information as may be necessary in order to determine the amounts due” in order to receive Medicare payment. In addition, pursuant to the “Medicare Claims Processing Manual,” when modifier 59 is used, a provider’s documentation must demonstrate that the service was distinct from other services performed that day.

OIG, Use of the Modifier 59 to Bypass Medicare’s National Correct Coding Initiative Edits, Pg. 3 (November 2005) (emphasis supplied). Later, the OIG Report reiterates that a healthcare provider’s records must affirmatively demonstrate that the two procedures performed on the same date are genuinely distinct in order to bill for both of them, and that “without this documentation, these services cannot be considered distinct.” Id. at 9-10. See also ¶13 supra explaining the October 5, 2000, Notice issued by the OIG.

For the dates of service at issue in State Farm’s Motion, Chiro One’s treatment records do not establish or demonstrate that the Myofascial Release billed by Chiro One under the 97140 procedure code was performed to a separate region of the Insured’s body than the Chiropractic Manipulation billed under the 98941 procedure code. Pursuant to § 627.736(5)(d) and the above-described authorities from the AMA and OIG, therefore, the Court concludes that Chiro One improperly billed State Farm for the 97140 procedure and used the -59 modifier in a false and misleading manner in the bills for such dates of service.

Based on the foregoing findings and conclusions of law, it is hereby ORDERED and ADJUDGED:

1. State Farm’s Motion for Partial Summary Judgment is GRANTED.

2. Pursuant to § 627.736(5)(d), Chiro One’s August 25, 2003, bill for treatment of Holly Minge is not “properly completed,” and, therefore, State Farm is deemed not to have received notice of this bill or the charges set forth in it. Accordingly, State Farm does not owe Chiro One any PIP or MPC benefits for this bill.

3. Pursuant to § 627.736(5)(d), the bills listed in Exhibits “L,” regarding Mr. Malone, Ms. Minge and Ms. Baez, “P,” regarding Ms. Baez, and “Q,” regarding Ms. Howell, to State Farm’s Motion are not “properly completed,” and, therefore, State Farm is deemed not to have received notice of such bills or any of the charges set forth in them. Accordingly, State Farm does not owe Chiro One any PIP or MPC benefits for the bills listed in Exhibits “L,” “P,” or “Q” to State Farm’s Motion.¹

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¹Paragraph 62 of State Farm’s Motion states that a schedule of Chiro One’s bills containing improper charges for procedures not performed on Irma Howell is attached to it as Exhibit “Q.” The last document attached to State Farm’s Motion is entitled “Schedule of Chiro One’s Bills Containing Improper Charges for Procedures Never Performed on Irma Howell.” Although not designated as such due to a scrivener’s error, the Court understands that this document was intended to be “Exhibit Q” to State Farm’s Motion, and this is the document to which the Court is referring with its use of “Exhibit Q” in this paragraph.