17 Fla. L. Weekly Supp. 383a
Online Reference: FLWSUPP 1705CRUMInsurance — Personal injury protection — Coverage — Medical expenses — CPT codes — Neuromuscular reeducation — Massage therapy — Unbundling — Insurer cannot deny payment for CPT codes for neuromuscular reeducation and massage therapy recognizable under Medicare Part B fee schedule on grounds that Medicare’s National Correct Coding Initiative provides that neuromuscular reeducation and massage therapy codes 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
JOHN S. VIRGA, D.C., PA., a/a/o Jennifer Crumpler, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-02395 SP 26. December 13, 2009. Patricia Marino-Pedraza, Judge. Counsel: Martin Berger, Samole, Berger & Hicks, P.A., Miami, for Plaintiff. Fernando Roig, Roig, Tutan, Rosenberg & Zlotnick, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on the 19th day of October, 2009 on Plaintiff’s Motion for 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
ORDERED AND ADJUDGED as follows:
1. Plaintiff treated Jennifer Crumpler for her personal injuries which she sustained in a head on collision which occurred on August 31, 2008. Crumpler was insured by State Farm Insurance Company under policy number 119634359. Crumpler assigned her insurance benefits to the Plaintiff who provided numerous chiropractic services from September 10, 2008 through October 8, 2008. The Defendant failed to pay for CPT Codes 97112 and 97124 which is the subject of this litigation.
2. In support of Plaintiff’s Motion for Summary Judgment, Plaintiff has filed the affidavit of Dr. John S. Virga, D.C. In his affidavit, Dr. Virga details his initial contact, examination, diagnosis, and treatment protocol of Judith Crumpler. He further asserts in his affidavit that in his opinion with a reasonable degree of chiropractic medical certainty, that all “aforementioned medical, diagnostic and therapeutic care and treatment received by Jennifer Crumpler from (his) office beginning on September 10, 2008 and continuing through October 8, 2008 was medically reasonable, necessary, and related to the injuries that she sustained in her August 31, 2008 collision.” Additionally, he specifically opines as to the RRN of neuromuscular reeducation (CPT code 97112) and massage therapy (CPT code 97124). Dr. Virga 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 posses a specialized knowledge of coding pursuant to AMA guidelines. Ms. Torres-Lich opined Dr. Virga improperly unbundled CPT Code 97124 separately from CPT Code 98941 and cannot be billed on the same day, based upon Medicare’s National Correct Coding Initiative. Additionally, Ms. Torres-Lich opined Dr. Virga improperly unbundled CPT Code 97112 separately from 98941 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 workers’ compensation.”
7. The CPT codes at issue in this case, 97124 and 97140, are both reimbursable under the applicable Medicare Part B fee schedule.
8. The Court must now address whether it was permissible for State Farm to deny payment on recognizable CPT codes under the Medicare part B fee schedule. State Farm argues that such limitations are permissible pursuant to the NCCI edits and such limitations are payment limitations. This Court disagrees. This Court determines that NCCI limitations 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 or 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 Hechtman v. Nations Title Ins. of New York, 894 So.2d 628, 633 (Fla. 2008); see also Arnold, Matheny, & 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 become 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 Summary Judgment is hereby granted.
