9 Fla. L. Weekly Supp. 395a
Insurance — Personal injury protection — Coverage — Medical expenses — Physical therapy — Medical treatments of hot and/or cold packs, unattended electrical stimulation, ultrasound, and massages may lawfully be rendered by a medical assistant under the supervision of a treating physician, and the law does not require that only a licensed physical therapist perform these treatments
MULTICARE MEDICAL CENTER, INC., ADVANCED DIAGNOSTIC TESTING, INC. and PHYSICIANS ASSOCIATES GROUP, INC. (assignees of Elsa Rodriguez, Antonio Nunez, Maribel Martinez), Plaintiffs, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and STATE FARM FIRE AND CASUALTY COMPANY, Defendants. 11th Judicial Circuit in and for Miami-Dade County. Case Nos. 00-04538 CC 26 (1), 00-04539 CC 26 (1), 00-04540 CC 26 (1). January 4, 2002. Bonnie L. Rippingille, Judge.
ORDER DENYING DEFENDANTS’ MOTION FORPARTIAL SUMMARY JUDGMENT AGAINST MULTICAREMEDICAL CENTER FOR PHYSICAL THERAPYMODALITIES THAT WERE UNLAWFULLY RENDERED,AND ORDER GRANTING PARTIAL SUMMARYJUDGMENT IN FAVOR OF PLAINTIFFS
These cases were consolidated for the purpose of oral argument whereby Plaintiff and Defendant stipulated that the issues and arguments in support of and in opposition to Defendant’s Motions for Partial Summary Judgment are the same in each case. Both parties also stipulated that the Court’s ruling shall uniformly apply to each case. This order, the arguments, case law and rulings contained within shall apply uniformly to each case referenced above.
Defendant alleges that some, if not all, of the medical bills at issue in this suit are for treatment that was “not lawfully rendered in accordance with Florida Statutes.” Specifically, Defendant refers to hot and/or cold packs, unattended electrical stimulation, ultrasound and massages, and asks this Court to rule, as a matter of law, that all bills which were submitted for these treatments be dismissed. Defendant filed no affidavits, depositions or memorandum of law in support of its position. Defendant relies almost entirely on Fla. Stat. § 486.021(11) which defines the practice of physical therapy, § 486.028 which requires a license to practice physical therapy, §486.031 and §486.102 which set forth licensing requirements of physical therapists and physical therapist assistants respectfully, and § 458.3485 which defines a medical assistant.
Plaintiff stipulated that the medical treatment at issue in this case are defined in Fla. Stat. § 486.021, which regulates the practice of physical therapy. However, as a matter of law, the “Physical Therapy Practice Act” (Fla. Stat. Chapter 486) neither excludes physicians or medical assistants from providing certain medical treatment simply because the modalities are defined within the physical therapy statute, nor does it state that the rendering of these medical treatment is exclusive only to physical therapists. On the contrary, the Physical Therapy Practice Act specifically allows physicians and medical assistants to engage in the practices for which they are licensed. (See, Fla. Stat. Chapter 486).
In constructing the Physical Therapy Practice Act, the Florida legislature defined the practice of physical therapy without excluding other professionals from lawfully providing medical treatment and/or services. This is evidenced by the opening sentence which states, “In this chapter, unless the context otherwise requires, the term: . . .`Practice of physical therapy’ means…” and further defines the practice of physical therapy. (Fla. Stat. § 486.021, emphasis added). The fact that this chapter opens with these words clearly evidences the legislature’s recognition that other lawful medical services and/or treatment may also fall within the definition of “physical therapy.” The Physical Therapy Practice Act provides even more concretely for the overlap of “physical therapy” services with other, lawful medical services and/or treatment. Section 486.028 specifically states:
No person shall practice. or hold herself or himself out as being able to practice physical therapy in this state unless she or he is licensed in accordance with the provisions of this chapter; however, nothing in this chapter shall prohibit any person licensed in this state under any other law from engaging in the practice for which she or he is licensed.
Fla. Stat. § 486.028, emphasis added.
The legislature provided not one, but two unambiguous provisions that allow for the rendering of hot and/or cold packs, unattended electrical stimulation, ultrasound and massages not limited solely to physical therapists or those professionals licensed under Chapter 486.
Multicare Medical Center is a medical facility staffed by physician(s) licensed under Florida law, and employs certified medical assistant(s) licensed under Florida law who assist with patient treatments and operation of medical equipment, also in accordance with Florida law. Defendant presented no evidence and made no argument to suggest that the physicians and medical assistants employed by Multicare Medical Center were not properly licensed under Florida law. Defendant, instead, relied on its argument that it is unlawful for medical assistants to render physical therapy.
Defendant argued that the medical assistant statute did not give medical assistants the power or ability to perform physical therapy. Defendant further argued that because the treatment modalities at issue are defined in the physical therapy statute but performed by medical assistants, these services were therefore unlawful. “Medical Assistant” is defined and regulated under Florida Statute § 458.3485:
As used in this section, “medical assistant” means a professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician.
Fla. Stat. § 458.3485(1), emphasis added.
“Medical practice” is regulated by Florida Statutes Chapter 458. This statute provides in pertinent part that, “nothing in this or any other chapter shall be construed to prohibit any service rendered by a medical assistant in accordance with the provisions of s. 458.3485.” (Fla. Stat. § 458.303(2), emphasis added). This statute further defines the duties of a medical assistant, which include “assisting with patient examinations or treatments,.” and “operating office medical equipment.” (Fla. Stat. § 458.3485(2)(c) and (d), emphasis added).
A medical assistant need not be under the constant, direct supervision of an attending physician at all times. At the hearing on Defendant’s Motion for Partial Summary Judgment, Plaintiff provided in its “Exhibit C” the Scope and Practice of the Medical Assisting Profession, as approved by the AAMA Board of Trustees at its March 9-12, 2000 meeting. According to the American Association of Medical Assistants, “physician supervision shall be active and continuous but shall not be construed as necessarily requiring the physical presence of the supervising physician at the time and place that services are rendered.” (See, Plaintiffs’ Exhibit C).
Defendant makes a final argument that the PIP statute prohibits payment for medical services performed by person or entity that does not possess a valid license required to perform such services. Defendant cites to Florida Statute 627.736(5)(e), which states:
All billings for such services shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) in the year in which services are rendered. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services.
(Florida Statute 627.736(5)(e)).
Because this court finds, as a matter of law, that the treatment rendered by a medical assistant in the instant case were lawfully performed, and that the medical assistants did not need a physical therapy license to perform these treatments, this issue is moot. The Court, however, recognizes that the CPT codes, billed for treatment rendered in these cases, support Plaintiffs’ argument that the physicians and medical assistants lawfully rendered medical treatments to the patients.
Plaintiff provided its “Exhibit A,” the American Medical Association’s year 2000 Current Procedural Terminology (CPT). These are the procedural codes under which all medical services should be billed according to the PIP statute. (See, Florida Statute 627.736(5)(e)). The CPT book describes the use of CPT codes in identifying and billing for medical procedures:
The Current Procedural Terminology (CPT) is a systematic listing and coding of procedures and services performed by physicians… Inclusion of a descriptor and its associated specific five-digit identifying code number in CPT is generally based upon the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations . . .These items are used by most physicians in reporting a significant portion of their services…
Plaintiff’s Exhibit A, Introduction, p. 1 of 6, emphasis added.
There are four medical treatments at issue in this suit which Defendant claims were rendered unlawfully. These medical treatments and their corresponding CPT codes are 97010 Application of a modality to one of more areas; hot or cold packs; 97014, electrical stimulation (unattended); 97035 ultrasound, each 15 minutes; and 97124 massage, including effleurage, petrissage and/or tapotement (stroking, compression, percussion). (Id., p.6 of 6). These four medical treatments fall under the category of either “Modalities” or “Therapeutic Procedures.”
The first three treatments fall under the heading of Modalities, which are subcategorized into supervised and constant attendance. “Supervised” means “the application of a modality that does not require direct (one on one) patient contact by the provider.” (Id., emphasis added). In this case, the hot/cold packs and electric stimulation do not require direct patient contact by the provider. “Constant Attendance” means “the application of a modality that requires direct (one on one) patient contact by the provider.” (Id. emphasis added). In this case, ultrasound requires direct patient contact by the provider.
The fourth medical treatment falls under the heading of Therapeutic Procedures, where the “physician or therapist [is] required to have direct (one on one) patient contact.” Id. emphasis added. This suggests that unlike the prior three medical treatments, massage requires the patient have direct contact by physician or therapist.
The CPT codes further supports Plaintiffs’ argument that a medical assistant may lawfully render certain medical treatments under the supervision of a treating physician, and that the law does not require that only a licensed physical therapist perform these medical treatments. The CPT code makes a vital distinction involving contact between provider and patient, and contact between physician or therapist and patient. If the authorities who constructed the CPT codes intended that only physicians or therapist were permitted to perform these first three medical services then there would be no need to distinguish between provider and physician or therapist contact. CPT codes are not controlling authority and are only intended to provide uniform billing procedures within the medical profession. Nonetheless, they are consistent with the controlling Florida statutes which account for persons other than physical therapists to perform medical treatments that are defined within the physical therapy statutes.
It is the opinion of this Court that Defendant failed to show, as a matter of law, that the medical treatments at issue in these suits were not performed lawfully. Based on the forgoing reasons, arguments and conclusions of law, Defendant’s Motion for Partial Summary Judgment is hereby DENIED. Because the parties stipulated that the Court’s ruling would be dispositive of whether or not the treatments were lawful, and because the Court finds as a matter of law that the treatment modalities at issue in this suit were lawfully rendered, PARTIAL SUMMARY JUDGMENT IS GRANTED in favor of Plaintiffs. “For there can be no sound reason why, when one party has moved for a summary judgment, the court, in the absence of a timely and meritorious objection, cannot dispose of the whole matter by granting a judgment to either party if it finds that the facts as properly construed against the prevailing party show that he is entitled to a summary final judgment as a matter of law, even though it may be better practice to file a cross-motion.” Carpineta v. Shields, 70 So.2d 573 (Fla. 1954). “Provided the law and facts support such a ruling, a trial court may properly enter summary judgment in favor of the party opposing the motion, even in the absence of a cross-motion for summary judgment.” Southeast Bank, N.A. v. H.P. Sapp, 554 So.2d 1193.
IT IS HEREBY ORDERED AND ADJUDGED that Defendant’s Motion for Partial Summary Judgment Against Multicare Medial Center for Physical Therapy Modalities That Were Unlawfully Rendered IS HEREBY DENIED. IT IS FURTHER ORDERED AND ADJUDGED that Partial Summary Judgment is GRANTED IN FAVOR OF PLAINTIFFS and that the medical services performed by medical assistants at Multicare Medical Center were LAWFULLY RENDERED.
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