23 Fla. L. Weekly Supp. 98a
Online Reference: FLWSUPP 2302MARQInsurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Unbundling — Affidavit of insurer’s expert regarding unbundling defense did not create genuine issue of material fact precluding summary judgment where affidavit merely offered different legal conclusion as to unbundling defense based on undisputed facts — Medical provider inappropriately unbundled and billed separately for x-ray readings that were performed as part of comprehensive evaluation component of evaluation and management CPT code that was billed for same day of service
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. R.J. TRAPANA, M.D., P.A., (A/A/O NOEMI MARQUEZ), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE12-026306 (AP). L.T. Case No. COCE08-001057. May 14, 2015. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Martin R. Dishowitz, Judge. Counsel: Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman, & Gregoire, PLLC, Fort Lauderdale, for Appellant. Russel M. Lazega, and Yasmin Gilinsky, Florida Advocates, Dania Beach, for Appellee.
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of R.J. Trapana, M.D., P.A. (“Trapana”). On appeal, State Farm argues that the county court erred in its ruling on the summary judgment motions as to the improper billing and coding defense. For the reasons explained below, this Court concludes that the county court erred in failing to grant State Farm’s motion for final summary judgment as to the improper billing and coding defense and reverses the final judgment.
Background
The underlying matter arose out of an automobile insurance policy, under which State Farm agreed to provide personal injury protection (“PIP”) and medical payments (“Med Pay”) benefits to Noemi Marquez (the “Insured”). After being involved in a car accident in November 2005, Insured received medical services from Daniel Abeckjerr, D.C. (“Abeckjerr”), a chiropractor, who obtained x-rays of Insured’s cervical, thoracic and lumbar spine (the “X-rays”). Abeckjerr eventually referred Insured to Trapana, an orthopedic specialist. In January 2006, Trapana examined Insured, who assigned her PIP and Med Pay benefits to Trapana. Trapana also reviewed the X-rays, prepared an evaluation/management report, which included Trapana’s opinion on the X-rays, sent the report to Abeckjerr, and referred Insured back to Abeckjerr. Afterward, Trapana submitted the related claim to State Farm. To identify the charges in the Centers for Medicare and Medicaid Services (CMS) 1500 claim form, Trapana used Current Procedural Terminology (“CPT”) Codes as published in the American Medical Association’s CPT Manual. Trapana charged $500 under CPT code 99204, for the office visit for evaluation and management of Insured, and charged three separate entries of CPT code 76140, for the consultation on the X-rays, at $60 each (a total of $180). State Farm paid the $500 under CPT code 99204. But, State Farm did not pay any of the $180 for the three charges under CPT code 76140.
In February 2006, Trapana sued State Farm to recover the $180 allegedly due for the three charges under CPT code 76140. In its answer, State Farm denied Trapana’s entitlement to payment. State Farm also affirmatively alleged that CPT code 99204 encompasses the review of the X-rays, and such review should not have been billed separately under CPT code 76140. As such, Trapana’s billing constituted unbundling and did not comply with Florida law so State Farm properly denied payment of the three charges under CPT code 76140. The county court denied State Farm’s motion for final summary judgment and granted Trapana’s motion for partial summary judgment as to the improper billing and coding defense. Later, the county court granted Trapana’s motion for partial summary judgment as to the reasonableness, relatedness and necessity of the charges (“RRN”). Based upon the county court’s rulings on the various motions for summary judgment, the county court entered a final judgment in favor of Trapana, which this Court reviewed de novo. See Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 So. 3d 365, 367 (Fla. 4th DCA 2014) [38 Fla. L. Weekly D1774a] (quoting Major League Baseball v. Morsani, 730 So. 2d 1071, 1074 (Fla.2001)) (“ ‘The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.’ ”) ; LaFrance v. U.S. Bank Nat’l Ass’n, 141 So. 3d 754, 755 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1419a] (citing Fla. R. Civ. P. 1.510(c)) (“Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”).
Analysis
This Court finds that the affidavit of State Farm’s coding expert did not create a genuine issue of material fact. The affidavits of both coding experts were based on undisputed facts and their respective experience and familiarity with the CPT Manual and the CPT Assistant. Both coding experts merely opined about their interpretation of the relevant portions of the CPT Manual and CPT Assistant as applied to the undisputed facts. Trapana’s expert opined that the billing was proper, while State Farm’s expert opined that it was not. In fact, because the affidavits of both coding experts addressed the ultimate question of law involved in the summary judgment motions as to the improper billing and unbundling defense, the affidavits should have been disregarded. See Devin v. City of Hollywood, 351 So. 2d 1022, 1026 (Fla. 4th DCA 1976) (a trial judge may not rely on expert testimony “to determine the meaning of terms which were questions of law to be decided by the trial court.”). Thus, the Record does not reveal a conflict in the facts, but a conflict in the ultimate legal conclusions reached by the experts. See Briggs v. Jupiter Hills Lighthouse Marina, 9 So. 3d 29, 32 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D496a].
To determine whether Trapana inappropriately billed and unbundled the review of the X-rays, this Court examined the PIP Statute, the CPT Manual and the CPT Assistant. Section 627.736(5)(d), Florida Statutes, provides that (1) all bills should be submitted to the insurer on a Centers for Medicare and Medicaid Services (CMS) 1500 form, and (2) billings for services must, to the extent applicable, follow the Physician’s Current Procedural Terminology (CPT) and comply with American Medical Association Current Terminology Editorial Panel. See § 627.736(5)(d), Fla. Stat. (2005). Section 627.736(5)(d), Florida Statutes, also provides for the use of the CPT manual in determining compliance with applicable CPT coding; therefore, the CPT Manual is incorporated by reference into the statute. See Id. The CPT Assistant publication is incorporated by reference into the CPT Manual, and so, while it is not binding, it can be used as a guide and to clarify information found in the CPT Manual. See Madock v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 408b (Fla. 13th Cir. Ct. Mar. 3, 2004). Section 627.736(5)(b)1.e., Florida Statutes, permits an insurer to deny payment for any treatment or service that is upcoded, or that is unbundled, when such treatment or services should be bundled. See § 627.736(5)(b)1.e., Fla. Stat. (2005).
The CPT Manual defines both CPT codes involved here and the CPT Assistant clarifies the information found in the CPT Manual. CPT Code 99204, which is used to report evaluation and management services provided to a new patient in a physician’s office, is defined as follows:
99204 Office or other outpatient visit for evaluation and management of a new patient, which requires these three components:
· a comprehensive history;
· a comprehensive examination;
· medical decision making of moderate complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs.
Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face to face with the patient and/or family.
CPT Code 76140 is defined as “[c]onsultation on x-ray examination made elsewhere, written report.” The CPT Assistant provides the following clarification for CPT Code 76140:
CPT Code 76140 Consultation on x-ray examination made elsewhere, written report is intended to be used when, for example, Doctor “A” from Sunnydale Hospital sends a radiograph taken at Sunnydale Hospital to Doctor “B” at Goodhope Hospital. Doctor “A” asks Doctor “B” to offer his opinion on the radiograph. Doctor “B” writes a formal report on his interpretation of the radiograph and sends a copy of this report to Doctor “K.”
This Code is not intended to be used by physicians within the same institution to reread radiographs taken at that institution. Levels of Service (limited, intermediate, extended, comprehensive) include the “evaluation of appropriate diagnostic tests” which may necessitate the attending physician to personally review the radiographs taken on his patient.
Based on the definitions and clarification above, this Court finds that CPT code 99204 encompasses all that Abeckjerr asked Trapana to do and all that Dr. Trapana did in fact do. Abeckjerr wanted Trapana to perform an evaluation, which was to include a review of the X-rays, and to provide Abeckjerr with his opinion. Trapana’s report to Abeckjerr constituted “counseling and/or coordination of care with other providers,” which is also included in CPT Code 99204. Specifically, based on the clarification of CPT Code 76140, Trapana’s evaluation and management of the Insured necessitated that Trapana personally review the X-rays, and so, the review of the X-rays was subsumed under CPT Code 99204. CPT Code 76140 would have been appropriate if Abeckjerr (1) only sent the X-rays to Trapana (without sending the Insured for an orthopedic evaluation), (2) asked Trapana to offer his opinion on the X-rays, and (3) Trapana wrote a report solely about his interpretation of the X-rays and sent such report to Abeckjerr. This is not what occurred here, as Abeckjerr sent Insured for an orthopedic evaluation, which necessitated the review of the X-rays as part of Trapana’s comprehensive evaluation of Insured. Thus, Trapana’s billing does not comply with the CPT Manual or CPT Assistant.
The county court erred in failing to grant State Farm’s motion for final summary judgment on the improper billing and unbundling defense. Given the findings discussed above, this Court need not reach State Farm’s arguments related to the summary judgment on RRN. Accordingly, it is
ORDERED AND ADJUDGED that the final judgment is hereby REVERSED, and this cause is REMANDED for entry of judgment for State Farm. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED contingent upon a finding that the proposal for settlement was made in good faith. Trapana’s Motion for Appellate Attorney’s Fees is hereby DENIED. (GARCIA-WOOD, RODRIGUEZ and PERLMAN, JJ. concur.)
