4th DCA issues adverse ruling on CPT code 97039
Just when you thought it was safe to pay CPT code 97039 at Workers’ Compensation fee schedule, the 4th DCA holds otherwise. The 4th DCA issued an adverse order on CPT code 97039 in United Auto. Ins. Co. v. Lauderhill Medical Center, LLC a/a/o Amber Griffin. Allegations regarding improper payment for CPT Code 97039 is a focal point by the plaintiff’s bar. The argument that Plaintiff’s counsel are now making rests on the case of Allstate Fire & Cas. Ins. Co. v. Perez, which holds that even if a CPT code is not reimbursable under Medicare Part B, if the service represented by that code is reimbursable under Medicare Part B, then the insurance company is required to reimburse for that service. Essentially, the argument is that even if 97039 is not reimbursable under Medicare Part B, the adjuster should have assessed the medical records to determine the service represented by 97039 and then determined whether that service is reimbursable under Medicare Part B. Various County courts previously ruled on this issue.
The 4th DCA agreed with Plaintiff’s arguments and their reliance on the Perez case. In reaching its decision, the 4th DCA held, “because we have held that the plain language of section 627.736(5), mandates payment under the workers’ compensation fee schedule only if the service is not reimbursable under Medicare Part B, and vibe therapy is a reimbursable service under Medicare Part B even though the CPT code has no set price. The new 4th DCA case is binding on the 4th DCA.
Plaintiff’s counsel will argue that it is also binding on all DCAs. The Decisions of the DCA represent the law of the land unless and until they are overruled by the Supreme Court. In the absence of inter-district conflict, or contrary precedent from this court, it is absolutely clear that decisions of a district Court is Binding Precedent throughout Florida.
We can expect to see an uptake in Summary Judgments by the Plaintiff’s bar on CPT code 97039. The insurance industry must hope that another DCA rules against the 4th DCA to create a conflict to certify this issue to the Supreme court, similar to the billed amount issue which is currently pending before the Florida Supreme Court.
Please contact Jeffrey Baer for additional information.