23 Fla. L. Weekly Supp. 121a

Online Reference: FLWSUPP 2203STATInsurance — Personal injury protection — Coverage — Medical expenses — Notice of claim — Claim form — CPT Code — Video fluoroscopy — No-Fault Law requires that provider comply with AMA CPT coding in submission of bills for payment of insureds’ PIP benefits — Insurer is not required to pay claim or charges with respect to bill that does not meet requirements of statute — Court must turn to AMA CPT coding requirements and statutorily-referenced AMA promulgated guides when interpreting appropriate CPT code — Since 2003, proper CPT code to be used when billing for video fluoroscopic procedures is 76120 — AMA has specifically referenced that video fluoroscopic procedures performed under trade name Digital Motion X-Ray or by the procedural technology being described or utilized in the performance of a digital motion x-ray should be billed under 76120 — By failing to use appropriate AMA CPT Code, provider failed to place insurer on notice of a covered loss — Judgment granted in favor of insurer on its declaratory requests — Provider’s counterclaim seeking declaration that insurer acted improperly in its reimbursement determinations is denied — Under policies at issue, insurer elected to reimburse 80% of reasonable expenses and provided that insurer could consider various federal and state medical fee schedules in determining reimbursement amount — Evidence established that insurer was not limiting its reimbursement to an amount set by fee schedule, but rather considered fee schedule in determining reasonableness — Provider failed to prove by greater and more persuasive standard that its $900 charge was reasonable — Court declines to declare that insurer engaged in practice of downcoding provider’s bills, and provider failed to prove by greater and more persuasive standard any bad faith on part of insurer — Provider’s counterclaim for declaration that insurer was required to contact provider prior to correcting what it believed to be a misrepresentative CPT code each time a bill was submitted by provider for Digital Motion X-ray, beginning in October 2003, is denied

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, vs. NU-BEST WHIPLASH INJURY CENTER, INC., Defendant. NU-BEST WHIPLASH INJURY CENTER, INC., Counter-Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Counter-Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 09-19125-CI-20. December 2, 2014. Honorable Bruce Boyer, Judge.

ORDER GRANTING STATE FARM MUTUALAUTOMOBILE INSURANCE COMPANY’SDECLARATORY ACTION AND DENYINGNU-BEST WHIPLASH INJURY CENTER, INC.’SDECLARATORY ACTION

THIS CASE having come before this Honorable Court by way of a bench trial held between September 15, 2014 and September 24, 2014, and the Court having had the opportunity to hear and read argument of counsel, considered the evidence submitted by both parties, and being otherwise fully advised in the premises, hereby states as follows:

PROCEDURAL HISTORY

1. Plaintiff/Counter-Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), has filed this action for declaratory judgment pursuant to Fla. Stat. § 86.011, in the Circuit Court of the 6th Judicial Circuit of the State of Florida in and for Pinellas County seeking the Court to enter the following Declarations:

i. That CPT Code 76120 is the proper American Medical Association CPT Code used to describe video fluoroscopy (referred to by Nu-Best as “Digital Motion X-Ray” or “DMX”); and

ii. That under Florida Statute Section 627.736 (2003 to 2007) and (2008), State Farm was not on notice of a covered loss when Defendant/Counter-Plaintiff, Nu-Best Whiplash Injury Center, Inc. (“Nu-Best”), utilized a CPT Code in violation of the American Medical Association’s Current Procedural Terminology coding/billing guidelines.

2. Nu-Best has filed a counter declaratory action seeking the following Declarations:COUNT I

i. Section 627.736(1)(a) mandates that “every insurance policy. . .shall provide” for payment of “80% of all reasonable expenses for medically necessary” services;

ii. State Farm’s PIP policy expressly states that State Farm will pay 80% of all reasonable expenses incurred for medically necessary services;

iii. Section 627.736(5)(a) 2.f. provides a permissive fee limitation that authorizes an insurer to opt out of 1(a) and provide in its PIP policy that it will limit reimbursement to 80% of 200% of the allowable amount under the Medicare Part B Fee Schedule or 80% of the maximum reimbursable allowance under Worker’s Compensation;

iv. Section 627.736(5)(a) 2.f. does not mandate an insurer to remit reimbursement of the insured’s reasonable treatment expenses to 80% of 200% of the allowable amount under the Medicare Part B Fee Schedule, or 80% of the maximum reimbursable allowance under Worker’s Compensation;

v. To opt out of Section 627.736(1)(a) and employee’s Section 627.736(5)(a) 2.f., the insurer’s PIP policy must provide that it will limit reimbursement to 80% of 200% of the allowable amount under the Medicare Part B Fee Schedule, or 80% of the of the maximum reimbursable allowance under Worker’s Compensation;

vi. State Farm must pay 80% of all reasonable medically necessary expenses as expressly provided in its policy;

vii. Nu-Best’s usual and customary fee of $900 billed to State Farm for each diagnostic fluoroscopic procedure was reasonable; and

viii. Since January 1, 2008, State Farm has systematically down coded Nu-Best bills from CPT 76396 to CPT 76120, with the intent to deny reimbursement due, constituting material representation of its policy duties under sections 627.736(5)(g) of the PIP Statute and 626.954(1)(a)(I) of the Florida Unfair Insurance Trade Practices Act.

COUNT II

i. None of Nu-Best’s claims listed in Exhibit “1” attached to its Counterclaim were upcoded when billed under CPT 76496, or prior, under CPT 76499;

ii. For each claim in Exhibit “1” which State Farm decided was “upcoded,” sec. 627.736(5)(b)1.e. required State Farm, before recoding Nu-Best’s service and paying reduced benefits under the changed code, to contact Nu-Best and discuss the reasons for State Farm’s change and Nu-Best’s reason for the coding, or make a reasonable good faith effort to do so;

iii. As to each claim in Exhibit “1” which State Farm recoded and paid reduced benefits based on the changed code, State Farm failed to first contact Nu-Best and discuss the reasons for State Farm’s change and Nu-Best’s reason for the coding, or make a reasonable good faith effort to do so;

iv. As to each claim in Exhibit “1” which State Farm recoded and paid reduced benefits based on the changed code, without first contacting Nu-Best and discussing its reasons for the code and State Farm’s reason for the change, State Farm was not authorized under sec. 627.736(5)(b)1.e to recode Nu-Best’s procedure and pay reduced benefits based on the changed code; and

v. For each claim in Exhibit “1” which State Farm recoded and paid reduced benefits based on the changed code, without first contacting Nu-Best and discussing its reasons for the code and State Farm’s reason for the change, State Farm must allow Nu-Best’s billed fee if reasonable in amount and Nu-Best’s services were reasonable, related to the motor vehicle collision, and medically necessary.

3. Nu-Best has filed 83 separate counter-claims seeking damages on Personal Injury Protection (“PIP”) claims, all of which were abated by Judge Jirotka’s Order dated June 17, 2011.

4. As such, the issues for this Court to decide are State Farm’s and Nu-Best’s Declaratory requests.

STATE FARM’S DECLARATORY ACTIONFINDINGS OF FACT

1. It is undisputed that State Farm is an insurance company authorized to issue automobile insurance policies within the State of Florida.

2. It is undisputed that Nu-Best is a diagnostic chiropractic clinic located in Palm Harbor, Florida which performs video fluoroscopic procedures, that are recorded digitally and used for diagnostic purposes, under the trade name Digital Motion X-Ray or “DMX,” and bills patients’ PIP benefits provided through their automobile insurance policy, including policies issued by State Farm.

3. State Farm, has filed this action for Declaratory Judgment pursuant to Fla. Stat § 86.011, arising out of the facts surrounding claims submitted by Nu-Best to State Farm for these fluoroscopic procedures, referred to as a Digital Motion X-Ray or “DMX,” performed on State Farm insureds.

4. Nu-Best has submitted bills to State Farm for reimbursement under Florida Statute §627.736 pursuant to State Farm’s insureds’ PIP benefits.

5. For all dates of service at issue in this action, Florida Statute §627.736(5)(d) mandated that to seek reimbursement under an insured’s PIP benefits, charges must be submitted on a Healthcare Finance Administration form (a “HCFA 1500 form”) or on forms promulgated by the Center for Medicare and Medicaid Services (a “CMS 1500 form”).

6. When filling out a HCFA 1500 form or a CMS 1500 form for reimbursement, pursuant to Florida Statute §627.736, the provider must enter a corresponding AMA CPT code for the procedure being billed. AMA CPT codes are five digit codes utilized to describe procedures and services performed by healthcare providers. The CPT Code Set is maintained and disseminated by the AMA and is promulgated by the AMA CPT Editorial Panel.

7. A division within the AMA, the Department of CPT Education and Information (“Department of CPT Education”), formerly known as CPT Information Services, is tasked with interpreting, evaluating CPT coding and responding to any coding questions that a healthcare provider may have regarding which CPT code should be used when billing a particular procedure.

8. In addition to providing responses to specific questions submitted by healthcare providers, the AMA also publishes different coding resources, including the AMA’s CPT Assistant, the AMA’s Frequently Asked Questions about CPT Coding, the AMA Coding Consultations, and CPT Changes: An Insider’s View. In preparing these publications, the Department of CPT Education seeks input and guidance from medical specialty societies, such as the American College of Radiology.

9. The evidence presented establishes that since 2003, the AMA, through the Department of CPT Education, the CPT Editorial Panel, and the Executive Committee of the CPT Editorial Panel, has advised healthcare providers, including Nu-Best and John Postlethwaite, D.C., that the proper CPT code to be used when billing for a video fluoroscopic procedure is 76120. The AMA has specifically referenced that video fluoroscopic procedures performed under the trade name Digital Motion X-Ray or (“DMX”) or by the procedural technology being utilized by Nu-Best and/or Postlethwaite, DC in the performance of (digital motion x-rays) should be billed under CPT code 76120.

10. The evidence presented further establishes that since 2003, the AMA has specifically stated that CPT codes 76496 and 79499 should not be used to bill a video fluoroscopic procedure and/or the procedure performed under the trade name Digital Motion X-Ray or the procedural technology utilized in the performance of digital motion x-rays. The AMA has specifically stated that bills submitted for the procedures described herein, they should not be billed using CPT codes 76496 or 76499.

11. During trial, Nu-Best’s corporate representative, John Postlethwaite, DC, testified that there is no dispute that the AMA has taken the position that video fluoroscopic procedures, including those performed under the trade name Digital Motion X-Ray or “DMX,” should be billed under CPT code 76120 and not under CPT codes 76496 or 76499. Nu-Best failed to present any evidence to refute State Farm’s claim that the AMA, since 2003, and as early as 2000, has advised that the proper CPT code to use when billing a video fluoroscopic procedure, including those under the trade name Digital Motion X-ray or “DMX,” should be 76120. John Postlethwaite, DC, has also acknowledged that the CPT Editorial Panel, as well as the Executive Committee of the CPT Editorial Panel, have both rejected requests to add an additional code to represent Nu-Best’s Digital Motion X-ray service, indicating that 76120 is the code representing this service.

12. Nu-Best has argued that despite the AMA’s position on how video fluoroscopic procedures, including those under the trade name digital motion x-ray or “DMX,” should be billed, the AMA is incorrect in its analysis of the correct code descriptor. Accordingly, Nu-Best has decided to continue billing its procedure under CPT 76496 against the AMA’s guidance and in contravention of the No-Fault Statute’s requirements.

13. However, Nu-Best has not presented the Court with evidentiary support sponsored by the AMA, the AMA CPT Editorial Panel, the AMA CPT Editorial Panel’s Executive Committee, or any medical specialty society for its position that the proper CPT code for its procedure is 76499 or 76496. The Court recognizes that it was acknowledged by Nu-Best’s retained witness Michael Miscoe, that the AMA has maintained the position that 76120 is the correct code and 76496 and 79499 are the incorrect codes for Nu-Best’s procedure.

14. The parties do not dispute that in order to submit bills for payment under Florida Statute § 627.736, a healthcare provider must utilize the appropriate CPT code as promulgated by the AMA CPT Editorial Panel.

15. Nu-Best has taken the position that the AMA’s position in the CPT Assistant, various Coding Communications, CPT Changes: An Insider’s look, the position of the specialty societies and dozens of letters from the AMA pertaining to Nu-Best’s Digital Motion X-ray service should be disregarded by the Court, as it is the CPT Editorial Panel who determines proper CPT code usage. However, the evidence presented supports that the AMA CPT Editorial Panel is a division of the AMA. Additionally, the AMA CPT Editorial Panel has indicated that it has determined that CPT Code 76120 is the appropriate code to represent Nu-Best’s Digital Motion X-ray service.

CONCLUSIONS OF LAW

State Farm has demonstrated to this Court that (1) a good-faith dispute exists between the parties; (2) it presently has a justiciable question concerning the existence or non-existence of a right or status, or some fact on which such right or status may depend; (3) it is in doubt regarding its right or status under the Florida Statute 627.736; and (4) a bona-fide, actual, present, and practical need for the declaration exists. Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851, 859 (Fla. Dist. Ct. App. 2013) [37 Fla. L. Weekly D1722a].

Florida’s No-Fault Statute requires that provider comply with AMA CPT coding in the submission of bills for payment of insureds’ PIP benefits. Further, guidance is to be provided by the Physicians’ Current procedural Terminology (CPT). Florida Statute § 627.736(5)(d). The Statute goes on to provide that an insurer is not required to pay a claim or charges with respect to a bill that does not meet the requirements of section (5)(d). Florida Statute § 6270736(5)(b)1.d. (2001-2012).

When interpreting the appropriate CPT code when a bill has been submitted for payment pursuant to an insured’s PIP benefits, the Court must turn to the AMA CPT coding requirements and statutorily-referenced AMA promulgated guides. An authoritative reference tool when determining the appropriate CPT code for a procedure are those referenced in the CPT code book, including the AMA’s CPT Assistant, the AMA’s Frequently Asked Questions about CPT Coding, the AMA Coding Consultations, and CPT Changes: An Insider’s View. See Hallandale Beach Orthopedics, Inc. (a/a/o Monette Bonhomme) v. State Farm Mutual Automobile Insurance Company, 18 Fla. L. Weekly Supp. 1050a (Fla. Broward County Ct., August 4, 2011) (court judicially noticed CPT code book, which is specifically referenced in 627.736(5), and CPT Assistant holding that “[since the [CPT] code book directs the use of CPT Assistant to discern its intent, . . . reference to CPT Assistant is appropriate when interpreting the CPT code book.”); Lorraine Gordon v. Allstate Indemnity Company, 17 Fla. L. Weekly Supp. 379(a), (Fla. Orange County Ct., December 17, 2009) (“[B]ecause the CPT Manual is incorporated by reference into § 627.735(5)(d) . . . both the CPT Manual and the CPT Assistant publication are admissible through judicial notice and are admissible for the purposes of summary judgment and trial”, and the CPT Assistant should be used as a guide in determining the appropriateness of a given CPT code.); and Care Plus Injury Rehabilitation Center, Inc. (a/a/o Yesenia Rivera) v. Progressive American Insurance Company, 15 Fla. L. Weekly Supp. 1114(a) (Fla. Miami-Dade County Ct., September 12, 2008) (Court held that medical providers may utilize only the AMA-promulgated CPT coding system or the Healthcare Correct Procedural Coding system to bill an insurer; the Court relied on undisputed record evidence of the AMA;s definitions of the subject CPT code in granting summary judgment in insurer’s favor); Nu-Best Whiplash Inj. Ctr. a/a/o Lemieux v State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 1092a, (Fla. Pinellas County Ct., May 29, 2012)(Belief that Nu-Best had used AMA CPT coding in contravention of the AMA based upon AMA correspondence and other related materials was a sufficient basis upon which to create an issue of fact that State Farm had a reasonable belief that the bills were not overdue.).

Since 2003, (and as early as 2000) the AMA, through the Department of CPT Education, the CPT Editorial Panel, and the Executive Committee of the CPT Editorial Panel, has advised that the proper CPT code to be used when billing for a video fluoroscopic procedure is 76120. The AMA has specifically referenced that video fluoroscopic procedures performed under the trade name Digital Motion X-Ray or by the procedural technology being described or utilized in the performance of a digital motion x-ray should be billed under CPT code 76120.

The Court finds that any distinction urged by Nu-Best does not exist and that the CPT Editorial Panel, through the AMA, has advised that the proper CPT Code used to describe video fluoroscopy (referred to by Nu-Best as “Digital Motion X-Ray” or “DMX”) is CPT Code 76120.

As such, in response to State Farm’s First Declaratory Request, it is hereby ORDERED AND ADJUDGED that CPT Code 76120 is the proper American Medical Association CPT Code used to describe video fluoroscopy (referred to by Nu-Best as “Digital Motion X-Ray” or “DMX”).

Next, the Court finds that State Farm was not considered to have been furnished with notice of the amount of the covered loss or medical bills due as the bills did not comply with § (5)(d) of the No-Fault Statute (2003 to 2007) and (2008-2012). By failing to utilize the appropriate AMA CPT Code as required, Nu-Best failed to meet the requirements of §(5)(d).

This Court recognizes that by failing to meet the requirements of (5)(d), Nu-Best failed to place State Farm on “notice of a covered loss”. USAA Cas. Ins. Co. v Pembroke Pines MRI, Inc., 31 So.3d 234, 237 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b] (by failing to properly complete the CMS 1500 form as required by § 627.736(5)(d), the insurer may avoid recovery by asserting the failure to receive notice of a covered loss.); Ortega v United Auto. Ins. Co., 847 So.2d 994, 996 (Fla. 3rd DCA 2003) [28 Fla. L. Weekly D796a] (Two affirmative requirements under the PIP Statute, in order for insurer to be placed on notice of a covered loss, are that the bills be submitted on a Health Care Finance Administration 1500 Form and that the bills follow the Physician’s Current Procedural Terminology ((CPT)) in the year in which the services are rendered).

As such, in response to State Farm’s Second Declaratory Request, it is hereby ORDERED and ADJUDGED that State Farm was not on notice of a “covered loss” under Florida Statute § 627.736 (2003 to 2007) and (2008), when Nu-Best utilized a CPT Code in violation of the American Medical Association’s Current Procedural Terminology Coding.NU-BEST’S COUNTERCLAIMSCOUNT I

As it relates to Nu-Best’s Counterclaims, The Court finds in response to its First Declaratory Request which pertains only to claims on and after January 1, 2008:

FINDINGS OF FACT

1. Prior to January 1, 2008 (beginning in October 2001), there existed a mandatory fee schedule for Nu-Best’s videofluoroscopy service that provided a reimbursement under the No-Fault Statute of approximately $147.00. Florida Statute § 627.736(5)(b)2. (2001-2007).

2. Beginning in January 1, 2008, the Statute was amended to include Nu-Best’s service within the payment methodologies in place for all services billed under PIP in Florida.

3. Florida Statute § 627.736(5)(a)(1)(2008-2012) provides various factors that may be considered in making determinations of reasonableness. Those include evidence of usual customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community, various federal and state medical fee schedules applicable to automobile and other insurance cover ages and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

4. State Farm’s policy of insurance provides that in determining whether a charge is reasonable, it may consider usual and customary charges, payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance cover ages and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

5. In making reimbursement determinations, State Farm considered each Nu-Best claim on an individual claim-by-claim basis.

6. In making determinations as to the amounts of reimbursement to Nu-Best on and after January 1, 2008, State Farm indicated it considered factors such as: the amount the legislature had previously determined to be reasonable as a matter of law, state and federal fee schedules such as Worker’s Compensation and Medicare Part B fee schedule, the fact that the service was comparable to an X-ray, as well as the Relative Value Unit (RVU) of the service.

7. In this case, State Farm does not agree that Nu-Best is using the correct CPT code in identifying its service, nor does State Farm agree that the $900.00 charged by Nu-Best is a reasonable charge.

8. Nu-Best and its customers routinely bill $900.00 for the Digital Motion X-ray service.

9. Nu-Best has provided billing materials to its customers identifying $900.00 as the amount to charge for the Digital Motion X-ray service.

10. State Farm has not paid Nu-Best $900.00 since 2007, prior to the timeframe in this declaration.

11. Nu-Best has been met with resistance from other insurance companies and payor sources regarding the $900.00 charged by Nu-Best.

CONCLUSIONS OF LAW

Nu-Best’s seeks declarations in its first declaratory count pertaining to the requirements of the No-Fault Statute and State Farm’s policy of insurance. As an initial matter, this Court recognizes that Florida Statute § 627.736(5)(a) and State Farm’s policy of insurance identify a number of factors that may be considered in determining a reasonable reimbursement which include state and federal fee schedules. This Court recognizes that both workers compensation and Medicare Part B Fee schedules, which were considered by State Farm in reimbursement calculations, are state and federal fee schedules that are applicable to automobile and other insurance coverages. Therefore, this Court agrees with the analysis in All Family Clinic of Daytona Beach, Inc. v State Farm Mutual Auto. Ins. Co., 280 F.R.D. 688 (S.D. 2012) in its holding that State Farm has elected in its contract of insurance to reimburse at “80% of reasonable expenses” and that “State Farm may consider various federal and state medical fee schedules applicable to automobile and other insurance coverages” in determining reimbursement amount. Id. at 693. The evidence has shown that State Farm is not merely limiting its reimbursement to an amount set by the fee schedule, but rather considers the fee schedule in determining reasonableness as provided in § 627.736 (5)(a)(1) (2008-2012) and in its policy of insurance.

The only evidence provided by Nu-Best pertaining to its position that State Farm acted improperly in its reimbursement determinations were based upon Geico General Ins. Co. v Virtual Imaging Servs., Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. While this case dealt with Geico’s ability to utilize a ceiling of reimbursement based only upon Medicare Part B Fee Schedule identified in Florida Statute § 627.736(5)(a)(2)(f) (2008-2012), the Court finds that the analysis in Virtual was based upon an agreement between the parties that the amount being charged by the provider was reasonable, which is disputed in this case. Further, there is no dispute in Virtual, as here, that the code utilized by the provider is an accurate one per § 627.736(5)(d). Importantly, this case analyzes a Geico policy and circumstance in which Geico is not relying on the factors identified by State Farm found in § 627.736(5)(a)(1). Further, this Court agrees with the holding in Virtual that the determination of reasonableness under the PIP Statute is a fact-dependent inquiry determined by the consideration of various factors. Id. at 155-156.

Further, consistent with its finding above that State Farm was not placed on notice of a covered loss due to Nu-Best’s non-compliance with the requirements of the No-Fault Statute to utilize AMA CPT coding, the declarations sought in this Count are rendered moot.

Additionally, with respect to the declaration sought by Nu-Best regarding the reasonableness of Nu-Best’s charges, this Court recognizes that reasonableness determinations are to be made on a case specific basis, State Farm Mutual Auto. Ins. Co. v Sestile, 821 So.2d 1244,1246 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1757a] (citing Auto Owners Inc. Co. v Marzulli, 788 So.2d 1031,1034 (Fla. 2d DCA 2002) [25 Fla. L. Weekly D2812b]. Additionally, Nu-Best has failed to prove by a greater and more persuasive standard that $900.00 is a reasonable charge. This Court recognizes that for seven years prior to the timeframe sought in the declaration, the Florida legislature had enacted a mandatory cap on the reimbursement for this service of approximately $147.00. This Court also acknowledges that based upon consideration of state and federal fee schedules as well as the nature of the service and the “relative value” of the service, Nu-Best has failed to meet its evidentiary burden to support a declaration that $900.00 is a reasonable charge for the Digital Motion X-ray service.

Finally, this Court declines to declare that State Farm has engaged in a practice of “downcoding” Nu-Best’s bills and, further, declines, to find that Nu-Best has proven by a greater and more persuasive standard any bad faith on the part of State Farm.

As such, in response to Nu-Best’s First Declaratory Request, it is hereby ORDERED and ADJUDGED that this Court denies Nu-Best’s request to provide the declaration sought in Count I, i.-viii. of Nu-Best’s Counterclaim.

COUNT IIFINDINGS OF FACT

1. Florida’s No-Fault Statute was amended in October 2003 to include a provision whereby insurers were not required to pay a claim or charges for any treatment or service that is upcoded, or that is unbundled when such treatment or services should be bundled, in accordance with paragraph (d). Florida Statute § 627.736(5)(b)1.e. (2003-2012)

2. This provision states that “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 codes, 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 reason for the coding, or make a reasonable good faith effort to do so, as documented in the insurer’s file.

3. “Upcoding” is defined as “an action that submits a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed”. Florida Statute § 627.732 (14)

4. Beginning in late 2001, State Farm and John Postlethwaite DC’s Nu-Best entity were engaged in litigation pertaining to the issue of the correct AMA CPT Code to be utilized to represent its service.

5. By June 2003, John Postlethwaite DC’s Nu-Best entity had dismissed dozens of lawsuits between the parties pertaining to the use of appropriate AMA CPT coding, ultimately entering into a settlement agreement on behalf of his Nu-Best Diagnostic Labs, Inc. entity.

6. During the time the parties were in litigation, employees of Nu-Best would refuse to speak with employees of State Farm, referring them to legal counsel for Nu-Best.

7. From late 2001 forward, there were multiple phone calls, Explanations of Reviews, items of correspondence, litigation matters and depositions between the parties pertaining to appropriateness of the CPT coding for Nu-Best’s service.

8. John Postlethwaite, DC had indicated to State Farm on multiple occasions, prior to October 2003, that he would not, under any circumstances, use CPT code 76120 to represent his Digital Motion X-ray service. John Postlethwaite, DC continues to maintain this position.

9. John Postlethwaite, DC, prior to October 2003, took legal action against State Farm for refusing to acknowledge his CPT Code choice and reimburse Nu-Best at the $900.00 charged. John Postlethwaite, DC continues to maintain litigation against State Farm regarding this issue.

10. State Farm has taken the position since late 2001 that John Postlethwaite, DC, through his Nu-Best entities, is in engaging in a practice of misrepresenting the service being performed by his Nu-Best entities. State Farm maintains that position today.

CONCLUSIONS OF LAW

Nu-Best asks this Court to declare that State Farm was required to first contact Nu-Best prior to correcting what it believed to be a misrepresentative code each and every time a bill was submitted by Nu-Best for Digital Motion X-ray, beginning in October 2003. This was some two years after the “dispute” had arisen between the parties as to the appropriate AMA CPT code to identify the service.

This Court rejects the contention that this statutory provision applies in the context suggested by Nu-Best. While this provision requires that services that are upcoded may be changed by the insurer if it contacts the health care provider and discuss the reasons for the insurer’s reason for the coding, or make a reasonable good faith effort to do so, it implies that there is a need to communicate the issue to the provider, which is not the case here. It is clear from the evidence that Nu-Best was clearly aware of State Farm’s issue with Nu-Best’s code choice. The evidence demonstrated a scenario in which a provider made a conscious, calculated and consistent decision to use a particular CPT Code for its own reasons. As such, the Court is not convinced any requirement to contact Nu-Best again and again would be triggered. Additionally, the record is replete with evidence of State Farm’s “efforts” to contact Nu-Best via phone calls, letter writing and face-to-face meetings over the years pertaining to this specific issue. Nu-Best has presented no evidence to suggest that it was at any point, since October of 2003, unaware of the reasoning behind State Farm’s claims handling practices with respect to Nu-Best’s Digital Motion X-ray service.

Additionally, this Court recognizes that State Farm has pled the affirmative defense of futility. State Farm argues and this Court recognizes that a party is not legally required to undertake an action that would be futile in nature. See, e.g., Waksman Enterprises, Inc. v. Oregon Properties, Inc., 862 So.2d 35, 43 (Fla. 2′ DCA 2003) [28 Fla. L. Weekly D2229d] (“The law does not require that a party to a contract take action that would clearly be futile.”); Alvarez v. Rendon, 953 So.2d 702, 708-709 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D902a] (“Under the doctrine of futility, a party may be excused from performing a condition precedent to enforcement of the contract, if performance of the condition would be futile.”); Artz ex rel. Artz v. City of Tampa, 102 So.3d 747, 751 (Fla. 2” DCA 2012) [38 Fla. L. Weekly D27a] (citing Waksman) (“The law requires no futile act in the context of the doctrine of exhaustion of administrative remedies.”); Webb v. Priest, 413 So.2d 43, 46 (Fla. 3d DCA 1982) (stating that where issue was raised both pretrial and in the early stage of trial, plaintiff was not required “to renew objection each time in what would have been an obviously futile gesture”); City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Assoc., 216 So.2d 509, 511 (“There is no requirement that a relator exhaust his administrative remedies prior to seeking the issuance of an alternative writ of mandamus, when it is apparent that either such a gesture would be a futile one. . .”); R.F. Cook v. J. DiDomenico, 135 So.2d 245, 246 (Fla. 2d DCA 1961) (Property owner was not required to seek a variance, where court acknowledged it would have been futile to apply for one from the county under circumstances present). John Postlethwaite, DC testified that there was nothing State Farm could say or do to persuade the CPT Code 76120. As such, any such contacts as contemplated by this statutory provision would have been completely and utterly futile.

As such, in response to Nu-Best’s Second Declaratory Request, it is hereby ORDERED and ADJUDGED that this Court denies Nu-Best’s request to provide the declaration sought in Count II, i.-v. of Nu-Best’s Second Counterclaim.