Casualty

CPT code 97039 has been in a state of constant flux in Florida and recent rulings have created greater change. First, one must understand what 97039 is and its history. According to the American Medical Association (AMA), CPT code 97039 is a medical procedure that falls under “Constant Attendance Physical Medicine and Rehabilitation Modalities.” This requires direct one-on-one contact with the patient by the provider. This means the provider performs the treatment directly and said treatment should not be performed contemporaneously with another procedure. Only the actual time of the skilled therapist’s direct contact with the patient is covered. CPT code 97039 is used when a therapy modality does not have a specific code that is reimbursable under Medicare. 

Typically, this code was reimbursed at $15.00 under the Florida Workers’ Compensation fee schedule. However, things changed after United Automobile Insurance Company v. Lauderhill Medical Center LLC a/a/o Robert White, 350 So.3d 754 (Fla. 4th DCA 2022). The Fourth District Court of Appeals (DCA) held that the actual treatment and the services control, not the billed CPT code. If a CPT code is no longer recognized but reimbursable, then the insurer cannot simply default to the Workers’ Compensation Fee Schedule. If the CPT code is no longer valid but the service remains reimbursable under Medicare, then the insurance carrier must make a reasonable analysis determination. That is, if the carrier determines the charge to be reasonable, it should reimburse 80% of the usual and customary charges. 

When a carrier sees CPT code 97039 on a CMS 1500 form, it must look beyond the code and review the medical records in order to make a determination of what modality or treatment service was truly rendered. The carrier must then analyze whether “this service [is] reimbursable under Medicare.” Id. This begs the question, “When can a carrier default to the Florida Workers’ Compensation Fee Schedule rate of $15.00?” The court seemed to allow reimbursement under the Workers’ Compensation Fee Schedule when the service is not reimbursable under Medicare. See Id. An example of this would be if a provider submits a bill using CPT 97039, and the modality of treatment provided was “dry hydrotherapy.” Dry hydrotherapy is not a reimbursable code under the Medicare Coding and Policy guidelines. Specifically, Medicare has made a decision that dry hydrotherapy is an investigatory procedure and considered not reasonable or medically necessary. See CMS.gov Memorandum L35036 re: Therapy and Rehabilitation Services (PT, OT). As such, the proper reimbursement rate would be under the Workers’ Compensation Guidelines. See, United Automobile Insurance Company v. Lauderhill Medical Center LLC a/a/o Robert White, (Fla. 4th DCA 2022).

Another example would be if the provider submits CPT code 97039 for reimbursement, and the treatment render was for Whirlpool therapy. Whirlpool therapy under Medicare Coding and Policy guidelines is billable under CPT code 97022. See, CMS.gov Memorandum A53058 re: Billing and Coding: Home Health Physical Therapy. CPT code 97022 is still an active CPT code under Medicare and still shows reimbursement amounts under the Centers for Medicare and Medicaid Services. However, Medicare’s coding policy does require separate documentation reflecting medical necessity for the procedure. See Id. If the medical records are unquestionable and explicit that treatment was rendered for Whirlpool therapy and the CPT code billed was 97039, a carrier may “crosswalk” CPT code 97039 to 97022 and reimburse under CPT code 97022.

While the Fourth District Court of Appeal in Lauderhill Medical Center LLC gave further clarification on CPT code reimbursement methodology, it is key for carriers to remain vigilant in the constantly changing landscape of Florida PIP litigation. If a carrier wishes to avoid litigation, then it seems the most practical reimbursement would be 80% of billed amount for CPT code 97039.

Alex is a member of the firm’s Fraud and Special Investigation Unit (SIU) Practice Group and is located in Fort Lauderdale, Florida. In this arena, he works in tandem with insurance carriers evaluating cases and taking Examinations Under Oath on SIU-related issues, resolving PIP disputes within the state of Florida. 

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