25 Fla. L. Weekly Supp. 549a
Online Reference: FLWSUPP 2506SANCInsurance — Personal injury protection — Coverage — Medical benefits — Massage therapy — Treatment provided by licensed massage therapist and billed under CPT code 97124 is not compensable under statutory changes that came into effect in 2013 — Neither demand letter nor bill contained false and misleading statements by provider, as provider sought payment for specific codes that were rendered and that provider believed to be payable
SUNSHINE REHAB & MEDICAL INC. a/a/o Rafael Sanchez, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-003785-CC-05 (04). July 10, 2017. Lourdes Simon, Judge. County: Karen Mooneeram and Thomas Singer, Gladys A. Cardenas, P.A., Miami, for Plaintiff. Anthony George Lewin, Beighley, Myrick, Udell & Lynne, Miami, for Defendant.
ORDER GRANTING IN PART DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before this Court on June 7, 2017 on Defendant’s Motion for Final Summary Judgment, and the Court after reviewing the record, all memoranda, and submitted case law, and having analyzed the arguments of counsel, and weighed the evidence, it is hereby
ORDERED AND ADJUDGED as follows:
UNDISPUTED FACTS
1. This is a Personal Injury Protection (“PIP”) case arising out of an accident that purportedly occurred on April 10, 2014.
2. As a result of the purported accident, Rafael Sanchez (“insured”) received treatment from Plaintiff, Sunshine Rehab & Medical, Inc. (“Sunshine Rehab”).
3. Sunshine Rehab filed suit against Progressive for PIP benefits for treatment provided to the insured.
4. All treatment rendered to the Insured, with the exception of CPT codes 99203, 99213, and 99214 were performed by a licensed massage therapist.
5. On six separate occasions Plaintiff billed for CPT code 97124, “massage therapy”.
ANALYSIS
The Florida legislature changed the PIP statute significantly in 2012, which took effect in 2013. Amongst those changes, section 627.736(1)(a)(5) set forth limitations on the reimbursements of personal injury protection medical benefits.
(5) Medical benefits do not include massage as defined in s. 480.033 or acupuncture as defined in s. 457.102, regardless of the person, entity, or licensee providing massage or acupuncture, and a licensed massage therapist or licensed acupuncturist may not be reimbursed for medical benefits under this section.
Under the Florida Statutes, massage is defined as follows:
The manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation.
§ 480.033(3), Fla. Stat. (2013). Furthermore, the Massage Practice Act, Chapter 480 of the Florida Statutes, governs the practice of massage in the State of Florida and defines a “massage therapist” as “a person licensed as required by this act, who administers massage for compensation.” § 480.033(4), Fla. Slat. (2013). Courts look to legislative intent when construing a statutory provision through a statutory Construction analysis. See Knowles v. Beverley Enters.-Fla., Inc., 898 So. 2d 1, 5 (Fla. 2004) [29 Fla. L. Weekly S788a]. In doing so, courts must look first to the statute’s plain meaning.” Id. (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996) [21 Fla. L. Weekly S41b]). Additionally, “ ‘when the language of the statute is dear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” ‘ Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (Fla. 1931)).
In the instant case, Plaintiff billed CPT code 97124. CPT code 97124 is defined as “Therapeutic procedure, 1 or more areas, each 15 minutes; massage, including effleurage, petrissage and/or tapotement (stroking, compression, percussion).”1 In addition, Plaintiff’s own therapy notes defines CPT code 97214 as “massage therapy.”
The Court finds that there is no question that CPT code 97124 is a massage code and that under the statutory changes that came into effect in 2013, massage is not compensable. The fact that the service was provided by a licensed facility does not make it compensable.2
The next issue before the Court is whether a licensed clinic may be reimbursed for services provided by a licensed massage therapist. Plaintiff’s position is that a clinic may be reimbursed for services provided by a licensed massage therapist because the clinic is being compensated, rather than the licensed massage therapist. This Court is not persuaded.
The Florida legislature specifically and purposely carved out an exception to massage therapy under the PIP statute. Florida law clearly and unambiguously defines “massage” and “massage therapist,” and section 627.736(1)(a)(5) expressly excludes “massage” and “massage therapists” from reimbursement for medical benefits. See § 480.033(3)-(4).
In essence, Plaintiff’s argument is that a clinic can “back-door” what it can’t get in through the front door, which is compensation for treatment that under the PIP statute is not compensable, merely because the clinic has a license to perform those services. Plaintiff would have this Court so narrowly construe the statute that it would defeat the entire purpose of what the Florida legislature intended, which was very clearly and unambiguously in the plain letter of the statute that licensed massage therapists shall not be compensated for their services by an insurer.
Therefore, there is no genuine issue as to any material fact regarding the interpretation of Florida’s PIP statute and the massage services at issue. Accordingly, all services provided by the licensed massage therapist and all massage services provided to the insured are non-compensable and unenforceable.
This Court disagrees with Defendant’s argument that Plaintiff made false and misleading statements in its billing. The present case is distinguishable from the case cited by Defendant, Chiropractic One, Inc. v. State Farm Mut. Auto. Ins. Co., 92 So. 3d 871 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1565a]. In Chiropractic One, the clinic did not dispute “the conclusion that many of its billings were knowingly false, misleading, improper and unlawful.” Id. at 873. Contextually, the clinic’s mistakes were factual in nature in that it improperly billed. Here, although Plaintiff billed for services that are not compensable, Plaintiff correctly billed the massage therapy services, which it does not dispute. Therefore, Plaintiff’s mistake was legal rather than factual, and thus, Plaintiff bills were not false and misleading. This would also apply to Plaintiff’s demand letter. Plaintiff sought payment for specific codes that were rendered and that it believed to be payable. This position does not render the demand letter defective because those codes were later deemed legally non-compensable.
CONCLUSION
The Court finds that there is no genuine issue of material fact regarding the billing of CPT code 97124 and the services provided by a licensed massage therapists as medical benefits do not include massage services and licensed massage therapists may not be reimbursed for medical benefits pursuant to Section 827.738(1)(a)(5), Fla. Stat. (2013). All charges for CPT code 97124 and all services provided by a licensed massage therapist on all dates of services are noncompensable and unenforceable. Therefore, Defendant’s Motion for Summary Judgment is granted in part.
The Court also finds that correctly billing for services that are later found to be noncompensable are not false and misleading statements that invalidate a claim in its entirety. In addition, requesting payment for those same services in a demand letter do not automatically render that demand letter defective. Therefore, Defendant’s Motion for Summary Judgment is denied in part
Wherefore, for the foregoing reasons and as detailed above, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is granted in part and denied in part.
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1The Current Procedural Terminology (CPT) code set is a medical code set and maintained by the American Medical Association.
2Plaintiff withdrew its claim for CPT code 97124 before this hearing.
