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NO-FAULT CONUNDRUM

NO-FAULT CONUNDRUM

November 30
08:19 2020

No-fault conundrum

These consolidated cases arose out of auto accidents that triggered personal injury protection (PIP) coverage pursuant to the insureds’ personal automobile policies with Geico General Insurance Company (GEICO). Beacon Healthcare Center, Inc., provided rehabilitation therapies to the GEICO insureds. During the insureds’ initial consultations at Beacon, the treating physician (and Beacon’s medical director), Dr. Michael Formisano, prescribed physical therapy using what are known as “modalities” that include use of hot/cold packs, electric stimulation, ultrasound, myofascial release (manual therapy), and traction, among others. These therapies were provided to the insureds by massage therapists who held massage therapy licenses but did not hold licenses in physical therapy. The massage therapists were not directly supervised on site by either a licensed physical therapist or a physician when they performed the treatments. The massage therapists used the prescribed therapy modalities that Dr. Formisano recommended.

Beacon Healthcare subsequently billed GEICO for “physical therapy” treatments and erroneously indicated on one part of the billing form that Dr. Formisano, rather than the massage therapists, provided the treatments. The billing statements also indicated that the massage therapists performed “physical therapy” under the direct supervision of Dr. Formisano. Dr. Formisano, however, was Beacon’s medical director whose responsibility was to review Beacon’s patient files once a month. GEICO had notice of these errors in the billing and denied the claims entirely, rather than the specific line item claims. GEICO then sued Beacon for submitting claims for charges for physical therapy services that were unlawfully rendered by unsupervised massage therapists and for operating in violation of the Health Care Clinic Act.

While that case was pending, Beacon filed suit against GEICO for a declaratory judgment that (1) the therapy modalities were lawfully rendered as services “incidental” to the licensed practice of massage and thus the therapists did not need to be licensed as physical therapists; and (2) that Beacon was operating lawfully, as Dr. Formisano substantially complied with his duties as medical director.

GEICO responded that all of Beacon’s charges were barred on the basis that the modalities provided constituted “massage” performed by massage therapists without direct supervision of an on-site licensed physical therapist.

The court granted summary judgment and final declaratory judgment to Beacon, concluding that a healthcare clinic can recover no-fault PIP benefits for physical therapy services performed by unsupervised massage therapists. The court certified two questions to the appellate court. The questions were:

May a person who is licensed as a massage therapist but not licensed as a physical therapist lawfully render physical therapy modalities enumerated in the state’s physical therapy act where such therapy is part of or incidental to the lawful practice of massage therapy?

May a licensed healthcare clinic receive PIP reimbursements for physical therapy services enumerated in the physical therapy act that are rendered by a licensed massage therapist who is employed by the clinic that are not “massage” as defined by the statute?

On appeal, the court noted that the state’s PIP statute was amended in 2013 to exclude massage from the kinds of healthcare services that are eligible for PIP reimbursement. The state’s physical therapy act contains an exemption that makes clear that it is not intended to prohibit licensed massage therapists from using physical agents as a part of, or incidental to, the lawful practice of massage therapy.

While some overlap exists between the two licensed practices, the court observed, they are different practices that require different licensures. Regardless of the use of physical therapy modalities “incidental to” the practice of massage therapy, the PIP statute precludes reimbursement for services provided by a licensed massage therapist. The plain language of the statute, the court said, precludes reimbursement to the massage therapists—or to Beacon Healthcare—as these services were erroneously billed as having been directly supervised by a licensed physical therapist or medical doctor.

The court held that the answer to the first certified question was yes, and the answer to the second certified question was no. Massage therapists may lawfully employ physical therapy modalities enumerated in the physical therapy act, but they will not be reimbursed under the PIP statute.

The court vacated the declaratory judgments entered in Beacon’s favor and remanded the case with instructions to enter judgment in favor of GEICO.

Geico General Insurance Company v. Beacon Healthcare Center, Inc.—District Court of Appeals of Florida, Third District—February 26, 2020–Nos. 3D18-2030, 3D18-2031, 3D18-2033.

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