Opinion

ASSOCIATES IN FAMILY PRACTICE OF BROWARD, LLC a/a/o YVETTE BROWN v. ALLSTATE FIRE & CASUALTY INSURANCE COMPANY

Court
District Court of Appeal of Florida
Filed
Jun 23, 2021
Status
Published
Cited by
0 cases

The opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ASSOCIATES IN FAMILY PRACTICE OF BROWARD, LLC a/a/o

YVETTE BROWN,

Appellant,

v.

ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,

Appellee.

No. 4D21-173

[June 23, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit,

Broward County; Betsy Benson, Judge; L.T. Case Nos. COCE18-6840 and

CACE19-21865.

Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, for appellant.

Daniel E. Nordby of Shutts & Bowen LLP, Tallahassee, and Garrett A.

Tozier of Shutts & Bowen LLP, Tampa, for appellee.

DAMOORGIAN, J.

Associates in Family Practice of Broward, LLC (“Provider”) appeals the

final summary judgment entered in its action against Allstate Fire and

Casualty Insurance Company (“Allstate”) for unpaid personal injury

protection (“PIP”) benefits. The county court entered judgment in Allstate’s

favor after concluding that Provider improperly unbundled certain billing

codes. For the reasons discussed below, we affirm.

The underlying case arose when Yvette Brown (“the insured”) was

injured in a car accident and sought medical treatment from Provider. In

order to receive treatment, the insured assigned her rights to receive PIP

benefits under her policy with Allstate to Provider. After the insured’s visit,

the physician who evaluated her (“the evaluating physician”) wrote an

initial report which stated that the insured complained of neck pain

radiating to her left shoulder, upper back pain, and left shoulder pain.

The report also included an assessment of the insured’s musculoskeletal

condition and a separate procedures section stating that the insured

received manual muscle testing of her hand with comparison to her normal

side and listed the strength of each of her hands in pounds.

Afterwards, Provider billed Allstate using four different Current

Procedural Terminology (“CPT”) codes as published in the American

Medical Association’s CPT Manual, two of which are relevant to this case:

CPT code 99205-25 (“the evaluation and management code”) and CPT code

95832 (“the manual muscle testing code”). Allstate paid the evaluation

and management code claim but denied payment for the manual muscle

testing code claim. Allstate explained the reason for the denial as follows:

“The provider has used modifier -25 to identify that on this date of service,

the patient’s condition required a significant, separately identifiable

[evaluation/management] service above and beyond the other service

provided . . . .” In accordance therewith, Allstate requested additional

documentation demonstrating the appropriate use of the modifier -25.

Provider did not submit the requested additional documentation.

After Provider sent a demand letter which Allstate denied, Provider

brought a breach of contract action against Allstate for reimbursement of

the amounts billed relating to the manual muscle testing code. In its

answer, Allstate affirmatively asserted that Provider “improperly

unbundled [the manual muscle testing code] from [the evaluation and

management code] because, absent a separate and distinctly-identifiable

written and signed report, muscle testing is inherent in the office visit

encompassed by [the evaluation and management code].”

Both parties ultimately filed competing motions for summary judgment.

In its motion, Provider argued that it was entitled to reimbursement for

the provided treatment and attached the evaluating physician’s affidavit

which, for the first time, explained that the insured received “additional

Muscle Testing for each hand in the office in order to rule out any

additional localized damage in the wrist, hand, [or] on the left upper

extremity.” The evaluating physician’s affidavit further explained that the

initial report separately reported this muscle testing procedure because it

was set off in a different section of the report.

Allstate, in turn, reasserted its affirmative defense and attached to its

motion the affidavit of an expert CPT coder. In relevant part, the coder

attested that:

1. Provider improperly billed for the manual muscle testing code

because the evaluating physician failed to include “a separately

identifiable signed report that stipulates the specific muscles or muscle

2

groups included in this diagnostic test, as required by the [American

Medical Association] . . . .”

2. “The lack of a report demonstrates that the Manual Muscle Testing

performed on this date of service is part of the examination portion of

the [evaluation/management] service and therefore bundled into the

more comprehensive [evaluation/management service].”

3. The evaluating physician “provid[ed] no evidence of what type of

testing was done or the significance of the pounds reported for left and

right hand[s].”

4. “[T]he provider did not utilize a grading scale or any indication of the

status of the testing . . . .”

Based on these findings, the coder concluded that the evaluating physician

did not comply with the applicable coding guidelines.

The court ultimately entered final summary judgment in favor of

Allstate, concluding that Provider improperly unbundled the manual

muscle testing code because it did not provide a separate written report

for the service and the testing could have been part of the “high-level”

evaluation and management code. In so concluding, the court explained:

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

3

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:

4

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 18lbs; 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

5

unbundled from 99205 pursuant to Section (5)(b)1.e. of the

PIP Statute.

We adopt the county court’s well-reasoned order in its entirety.

As correctly found by the county court, the evaluation and management

code encompassed the manual muscle testing code. As such, in order to

unbundle the codes, Provider was required to provide a separate written

report explaining why the manual muscle testing was necessary beyond

the gross muscle testing encompassed within the evaluation and

management service. See State Farm Mut. Auto. Ins. Co. v. R.J. Trapana,

M.D., P.A., 23 Fla. L. Weekly Supp. 98a (Fla. 17th Cir. Ct. May 14, 2015)

(review of X-rays improperly unbundled from evaluation and management

code where the provider did not provide a separate report “solely about his

interpretation of the X-rays”). Merely including a notation in the single

four-page report and adding a modifier -25 to the evaluation and

management code was not enough to bill for the codes separately.

Moreover, although Provider later provided the evaluating physician’s

affidavit explaining why the manual muscle testing was necessary, this

does not change the fact that Provider failed to provide a separate report

when submitting its bill.

For the foregoing reasons, we affirm the county court’s entry of

summary judgment in Allstate’s favor.

Affirmed.

KUNTZ and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.