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
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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
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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:
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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
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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.
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