27 Fla. L. Weekly Supp. 761a
Online Reference: FLWSUPP 2708YBROInsurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Unbundling — Where notation within office visit report regarding manual muscle testing of hand is not “separate written report” and does not include documentation of strength of specific muscles tested, need for separate manual muscle testing or tests performed; manual muscle testing was included in physical examination portion of office visit performed on same date and is not separately compensable
ASSOCIATES IN FAMILY PRACTICE OF BROWARD, L.L.C. a/a/o Yvette Brown, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-18-006840 (56). October 3, 2019. Betsy Benson, Judge. Counsel: Jeremy Dover, Law Offices of Anidjar & Levine, P.A., Fort Lauderdale, for Plaintiff. Manuel Negron, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY DISPOSITION REGARDINGCPT CODE 95832 AND DEFICIENT DEMAND
THIS CAUSE came before the Court for consideration of the parties’ competing Motions for Summary Disposition regarding CPT Code 95832 and Deficient Demand; and the Court, having reviewed the Motions, having heard argument of Counsel, and being sufficiently advised in the premises, finds as follows:
Facts and Procedural History
Plaintiff initiated this lawsuit on March 28, 2018, generally seeking 80% of everything it billed minus what Allstate previously paid. Small Claims Rule 7.135, regarding Summary Disposition, was reserved at the June 11, 2018 Pretrial Conference. In its September 28, 2018 Answer to the Complaint, Allstate asserted that Plaintiff’s pre-suit demand was deficient and that two (2) units of Current Procedural Terminology (“CPT”) Code 95832 were not payable. On September 5, 2019, Plaintiff responded to Defendant’s interrogatories and confirmed that, by this suit, Plaintiff sought to recover only the two (2) denied units of 95832. Plaintiff reiterated its position in the parties’ September 12, 2019 Joint Stipulation of Facts, wherein Defendant also preserved its deficient demand defense. The parties appeared before this Court on September 20, 2019 and presented summary disposition argument on both of the foregoing issues.
The parties agreed that the subject policy elects the fee schedule payment methodology at Section 627.736(5)(a)1., Florida Statutes (2016). The parties agreed that the questions presented in this case were purely legal questions for the Court to resolve on summary disposition. Lastly, the parties agreed that the medical records filed by Plaintiff and the American Medical Association’s (“AMA”) CPT Manual and CPT Assistant publications filed by Allstate were admissible and relevant to the determination of compensability of CPT Code 95832.
Conclusions of Law
A. CPT Code 95832
Section 627.736(5)(d), Florida Statutes, provides that medical services not billed in compliance with AMA CPT billing guidelines are not payable. Section (5)(b)1.e., in turn, provides that a code that is unbundled per AMA CPT billing guidelines is also not payable. In answering questions of whether medical services are properly billed/coded in compliance with AMA CPT guidelines, the Court looks to the CPT Manual and the CPT Assistant. State Farm Mut. Auto. Ins. Co. v. R.J. Trapana, M.D. P.A., 23 Fla. L. Weekly Supp. 98a (Fla. 17th Cir. Ct. (App.) May 2015) (“Trapana”); Daniel Madock v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 408b (13th Cir. Ct. (App.) March 3, 2004).
CPT Code 95832 is defined in the 2017 CPT Manual as “muscle testing, manual (separate procedure) with report; hand, with or without comparison with normal side” (emphasis added). Thus, the definition of CPT Code 95832 within the CPT Manual provides that manual muscle testing of the hand billed as 95832, must be its own, separate procedure and must be supported by a report. The CPT Assistant confirms this and provides further guidance:
Manual muscle test findings can be reported using either a numerical scale (0-5) or equivalent semiquantitative language, such as zero, trace, fair, good or normal. . . . Manual muscle testing requires a separate report identifying specific muscles and their grades. Manual muscle testing that does not meet these criteria should be considered part of the evaluation and management (E/M) service. . . . Gross testing of muscle strength . . . is typically included as part of the physical examination, of the key components used to determine the level of E/M service codes. . . The documentation should support the need for manual muscle testing services performed on the same date of service as an E/M service. . . . The language included in each of the descriptors for use of these codes indicates. . . the preparation of a separate, written report of the findings as a necessary component of the procedure. Manual muscle testing that includes standardized scale comparisons and a separate, written report is separately reportable from E/M services performed on the same date. . . .From a CPT coding perspective, codes designated as separate procedures should not be reported in addition to the code for the total procedure or service for which they are considered integral components. It is incumbent upon the provider to support the need for range of motion or manual muscle testing services in the documentation.
CPT Assistant, May 2008, page 9 (emphasis added). The citation to this CPT Assistant article is specifically listed within the definition of 95832 in the CPT Manual, which is incorporated by reference into Section (5)(d) of the PIP Statute. See Trapana, supra.
In the instant case, CPT Code 95832 was billed in conjunction with CPT Code 99205, an office visit code for evaluation and management (“E/M”) of a new patient, defined as follows:
Office or other outpatient visit for the evaluation and a management of a new patient, which requires these 3 key components:
· a comprehensive history;
· a comprehensive examination;
· medical decision making of high complexity.
. . . Usually, the presenting problem(s) are of moderate to high severity. Typically, 60 minutes are spent face-to-face with the patient and/or family.
2017 CPT Manual, page 12 (emphasis added). CPT Code 99205 is the highest level E/M Code for a new patient and includes a “comprehensive examination.” In support of its billing of CPT Codes 99205 and 95832 on the same date, Plaintiff submitted a single four-page report documenting the patient’s presenting condition, medical history, physical examination, diagnoses, plan of care and certification of Emergency Medical Condition. The only notation within this four-page report in support of the billing of 95832 was the following:
Procedures
95832 — MUSC TSTG MNL W/REPRT HAND W/WO CMPRSN NRML SIDE; 08/30/17 12:00 AM; Right hand strength 34 lbs left hand strength 18 lbs; Performed in office
This notation is included within the office visit or E/M report and is therefore not a “separate, written report” as required by AMA CPT guidance. Furthermore, the strength of specific hand muscles graded using a numerical or standardized scale or equivalent semi-quantitative language is not included in the notation. The notation does not document the need for separate manual muscle testing of the hands performed on the same day as an E/M service. It does not document what specific hand muscle tests were performed. Due to the foregoing, Plaintiff’s notation failed to satisfy the definition of Code 95832. The code was not billed in compliance with the AMA CPT guidelines, and is therefore not payable under Section (5)(d) of the PIP Statute. Furthermore, because the hand strength testing could have been part of the comprehensive physical examination portion of the high-level office visit billed as CPT Code 99205, 95832 is considered unbundled from 99205 pursuant to Section (5)(b)1.e. of the PIP Statute.
This Court’s decision is guided by the Seventeenth Circuit, Appellate Division, who reached a similar conclusion in Trapana, supra. In that case, the Appellate Division reversed the County Court considering, as a question of law, whether the reading and interpretation of an X-ray was included in and unbundled from an office visit (E/M) code that included taking a medical history of the patient. The Court looked at the definitions of the codes at issue in the CPT Manual and guidance from the CPT Assistant and concluded that:
[b]ased 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.
As in Trapana, the hand muscle testing allegedly performed by the Plaintiff was included within the comprehensive physical examination required to bill the high-level office visit CPT 99205.
Per AMA CPT guidelines, in order for Plaintiff to bill both 95832 and 99205 on the same day, more documentary support than the notation provided by Plaintiff was necessary. See Daniel Madock v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 408b (13th Cir. Ct. (App.) March 3, 2004). In Daniel Madock, the 13th Circuit, Appellate Division, was confronted with a similar factual situation:
He wrote a four-page report on this office visit, which included, in the assessment section, his one-sentence review of the cervical x-rays taken at the hospital. He did not write a separate report for his evaluation of those x-rays. His one-sentence report is why he billed the 76140 code.
Based on the lack of documentation to support the billing of review and interpretation of X-ray separate from the office visit the Circuit Court, acting in its appellate capacity, affirmed the lower court’s judgment that the code for review and interpretation of the X-rays was included within the medical history portion of the office visit billed as 99204. The Appellate Division also affirmed the propriety of reliance on the CPT Manual and CPT Assistant to analyze the coding issues presented. Here, is in Madock, the notation is not enough to meet the requirement of a separate, written report, in order to bill code 95832. Consequently, the hand muscle testing services performed by the Plaintiff in this case were included in the physical examination portion of the office visit billed as 99205. For the reasons set forth herein, as billed by the Plaintiff, CPT Code 95832 is not compensable under the AMA CPT guidelines incorporated into Section (5)(d) of the PIP Statute and was unbundled under Section (5)(b)1.e.
B. Deficient Demand
Because the Court finds in favor of Allstate on Plaintiff’s sole claim, it need not address Allstate’s deficient demand claim. However, the Court notes that, on September 5, 2019, one month before trial, Plaintiff stated that its sole claim in this case was for $105.60 for the two (2) denied units of 95832. Almost two years prior, before suit was filed, on November 9, 2017, Plaintiff demanded that Allstate pay $792.84 in order to avoid suit. The demanded funds ($792.84) represent 100% of all codes Plaintiff billed, minus Allstate’s payments to Plaintiff at the applicable fee schedules. When Plaintiff initiated this lawsuit in March 28, 2018, the complaint claimed entitlement to 80% of all codes the Plaintiff billed, minus payments to claimant at the applicable fee schedules.
Fla. Stat. 627.736(10)(a) imposes on providers an obligation to “itemize” and be “specific” and “exact” with their claimed damages in order to provide insurers an opportunity to avoid the suit the Plaintiff will file. In this case, Plaintiff demanded that, in order to avoid suit, Allstate pay an amount that Plaintiff later conceded was not compensable — an amount which was unlawful at the time Plaintiff submitted its demand. Ten months prior to Plaintiff’s demand submission, the Florida Supreme Court ruled that Allstate’s policy was sufficient notice of its fee schedule election at Section (5)(a)(1)f. of the PIP Statute. The presuit demand did not provide Allstate an opportunity to avoid the lawsuit in which Plaintiff ultimately engaged and which Plaintiff should have known in November, 2017 was its only potential claim. The presuit demand violated Section (10) of the PIP Statute because it demanded payment of amounts, which are not lawfully compensable and which were not compensable at the time Plaintiff submitted its demand. See MRI Assoc. of America, LLC a/a/o Ebba Register v. State Farm Fire and Casualty Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]; State Farm Mutual Auto. Ins. Co. v. Douglas Diagnostic Center a/a/o Jainek Perez, 25 Fla. L. Weekly Supp. 942b (Fla. 17th Cir. Ct. (App.) 2017); Wide Open MRI a/a/o Susana Hinestroza, 16 Fla. L. Weekly Supp. 513b (Fla. 17th Cir. Ct. (App.) 2009); Mercury Ins. Co. of Fla. v. Harvey Nelson, 20 Fla. L. Weekly Supp. 122a (Fla. 17th Cir. Ct. (App.) 2012); Fountain Imaging of West Palm Beach, LLC a/a/o Charlotte Jennings v. Progressive Express Ins. Co. 14 Fla. L. Weekly Supp. 614a (Fla. 15th Cir. Ct. (App.) 2007).
THEREFORE, IT IS HEREWITH ORDERED AND ADJUDGED that:
1. Allstate’s Motion for Summary Disposition re CPT Code 95832 is GRANTED;
2. Final Judgment is entered in favor of Allstate in this case. Plaintiff shall take nothing by this action, and Defendant shall go hence without day. This Court reserves jurisdiction to determine Allstate’s entitlement to and amount of attorney’s fees and costs.
