17 Fla. L. Weekly Supp. 383b
Online Reference: FLWSUPP 1705TORRInsurance — Personal injury protection — Coverage — Medical expenses — CPT codes — Myofacial release — Massage therapy — Unbundling — Insurer cannot deny payment for CPT codes for myofacial release and massage therapy recognizable under Medicare Part B fee schedule on grounds that Medicare’s National Correct Coding Initiative provides that myofacial release and massage therapy codes cannot be billed on same day as each other and myofacial release code cannot be billed on same day as another code billed by medical provider where insurer did not assert affirmative defense of unbundling, and PIP statute forbids insurer from applying utilization limits — No merit to argument that NCCI is payment limitation rather than utilization limitation
ISOT MEDICAL CENTER, CORPORATION, (a/a/o Lenia Torres), Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-01340 SP 26 (03). January 18, 2010. Patricia Marino-Pedraza, Judge. Counsel: Zachary A. Hicks, Samole, Berger & Hicks, P.A, Miami, for Plaintiff. Michael Rosenberg, Roig, Tutan, Rosenberg & Zlotnick, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before this Court upon Plaintiff’s Motion for Final Summary Judgment regarding the Defendant’s first and only affirmative defense that Defendant paid the appropriate and allowable amount in full and final satisfaction of Plaintiff’s claim, it is hereby:
ORDERED and ADJUDGED as follows:
1. Plaintiff’s treated Lenia Torres for her personal injuries which she sustained in an automobile collision which occurred on May 14, 2008. Torres was insured by State Farm Insurance Company under policy number 657031559. Torres assigned her insurance benefits to the Plaintiff who provided numerous medical service from May 16, 2008 through September 4, 2008. The Defendant failed to pay for CPT Codes 97124 and 97140 which is subject of this litigation.
2. In support of Plaintiff’s Motion for Final Summary Judgment, Plaintiff has filed the affidavit of Dr. Guido Perez, M.D. In his affidavit, Dr. Perez details his initial contact, examination, diagnosis and treatment protocol of Lenia Torres. He further asserts in this affidavit that in his opinion with a reasonable degree of medical certainty, that all “aforementioned medical, diagnostic and therapeutic care and treatment received by Lenia Torres from (his) office beginning from May 16, 2008 through September 4, 2008 was medically reasonable, necessary and related to the injuries that she sustained in her May 14, 2008 collision.” Additionally, he specifically opines as to the RRN of massage therapy (CPT code 97124) and myofacial release(CPT code 97140). Dr. Perez attached all medical records and asserted personal knowledge of all facts alleged.
3. The Court finds that the Plaintiff has satisfied their burden as to the issues of reasonableness, relation and necessity.
4. The Court now addresses the affidavit filed in opposition by the Defendant. The Defendant submitted the affidavit of Denisha M. Torres-Lich, a Registered Health Information Administrator who possess a specialized knowledge of coding pursuant to AMA guidelines. Ms. Torres-Lich opined Dr. Perez improperly unbundled of CPT Code 97124 separately from CPT Code 97140 and cannot be billed on the same day, based upon Medicare’s National Correct Coding Initiative. Additionally, Ms. Torres-Lich opined Dr. Perez improperly unbundled CPT Code 97140 separately from 97012 and cannot be billed on the same day, again basing her opinion on NCCI.
5. However, State Farm failed to allege unbundling as an affirmative defense.
6. Florida Statute 627.736 (5)(A)(2)(f) provides a permissive reimbursement scheme, under which an insurer may limit reimbursement to “80 percent of 200 percent of the allowable amount under the participating physician schedule of Medicare Part B or, “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.”
7. The CPT codes at issue in this care, 97124 and 97140, are both reimbursable under the applicable Medicare Part B fee schedule.
8. The Court must now address whether is was permissible for State Farm to deny payment on recognizable CPT codes under the Medicare Part B fee schedule. State Farm argues that such limitation are permissible pursuant to the NCCI edits and such limitation are payment limitation. This court disagrees. This Court determines that NCCI limitation which prohibit physicians from administering certain services to a patient on the same day are clearly utilization limitations.
9. The current PIP Statute clearly prohibits insurers from applying “any limitation on the number of treatments or other utilization limits that apply under Medicare of worker’s compensation .” Legislative intent is the polestar by which a court must be guided in interpreting the provisions of the law. In ascertaining the legislative intent, a court must consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another. Florida Department of Revenue v. New Sea Escape Cruise LTD, 894 So.2d 954 (Fla. 2005) citing Hectman v. Nations Title Ins. of New York, 894 So.2d 628 (Fla. 2008); see also Arnold, Matheny and Eagan, P.A. v. First American Holdings, Inc., 982 So.2d 628, 633 (Fla. 2008) If the Court was to accept the Defendant’s argument that utilization limits are solely limits on how many times a service can be provided, then the Statute would be come redundant. The Court believes this would not be the logical intent of the Legislature.
10. Therefore, based upon the aforementioned findings and upon Defendant’s failure to assert the affirmative defense of unbundling, Plaintiff’s Motion for Final Summary Judgment is hereby granted.
