A response to your denial including a review of the relevant literature and legal precedence
Written by David Marcarian, MA
To Whom It May Concern:
I am responding to your concern about the use of a dedicated room for sEMG testing. I have also included a review of relevant literature and legal cases establishing the validity of the procedure performed in this case, utilizing the MyoVision surface EMG system.
Response to denials based upon a mistaken assumption that a “Dedicated Motion Analysis Laboratory” is required:
Please review the recent Superior Court Case in the State of Florida (Case # 1D05-729) titled:
DEPARTMENT OF HEALTH, THE
FLORIDA INSURANCE COUNCIL,
INC., THE PROPERTY CASUALTY
INSURERS ASSOCIATION OF
AMERICA, THE AMERICAN
INSURANCE ASSOCIATION, THE
NATIONAL ASSOCIATION OF
MUTUAL INSURANCE
COMPANIES, THE FLORIDA
AUTOMOBILE JOINT
UNDERWRITING ASSOCIATION,
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, ALLSTATE
INSURANCE COMPANY,
GOVERNMENT EMPLOYEES
INSURANCE COMPANY, THE
FLORIDA FARM BUREAU
INSURANCE COMPANIES,
LIBERTY MUTUAL INSURANCE
GROUP, FIRST FLORIDIAN AUTO
AND HOME INSURANCE
COMPANY, AND UNITED
SERVICES AUTOMOBILE
ASSOCIATION,
Appellants/Cross-Appellees,
v.
RICHARD W. MERRITT, D.C.,
Appellee/Cross-Appellant.
1. Please note that I was the expert witness in this case, testifying on behalf of the validity of Surface EMG. The Superior Court Decision was unanimous, upholding the lower court decision (Case #04-1149RX) where Surface EMG was found to be valid, and that a motion analysis laboratory was found unnecessary for billing using the AMA CPT code for Dynamic SEMG.
2. The case files and all information related can be found at by emailing nicole@myovision.comand requesting the court transcript and/or court decision.
3. In the lower court decision, the court determined that the AMA CPT code did not in fact require that a motion analysis lab be present for the code to be utilized.
In the lower court decision, with regards to the AMA CPT Codes, Judge Cleavenger, in her 47 page decision stated:
42. Additionally, the American Medical Association Current Procedural Terminology (CPT) 2004 Manual is a proprietary system of the AMA for reporting medical services and procedures. CPT Codes are the uniform, established system for reporting medical
services for reimbursement under government and private insurance programs. CPT coding is mandatory to describe the services a physician renders when submitting that service for payment to an
automobile insurance carrier.
43. In order to be assigned a five-digit CPT Code, the procedure must be “consistent with contemporary medical practice and be . . . performed by many practitioners in clinical practice in multiple locations.
44. Code assignment is performed by a CPT Editorial Panel, consisting of 17 physician members, and a larger CPT Advisory Committee of medical and allied health professionals. Among the objectives of the CPT Advisory Committee is to “provide documentation to staff and the CPT Editorial Board regarding the
medical appropriateness of various medical and surgical procedures. . . .” (emphasis supplied)
45. Among the considerations for Code assignment are the requirements“that the service/procedure is a distinct service performed by many physicians/practitioners across the United States” and “that the clinical efficacy of the service/procedure is well established and documented in peer review literature.”
46. Dynamic SEMG has been assigned a five-digit CPT Code 96002. Similarly, The review and interpretation of dynamic sEMG has been assigned a five-digit CPT Code 96004.
47. The fact that SEMG has been found to meet the
requirements of the AMA for assignment of five-digit CPT Codes provides evidence of the medical value of the test, and strong evidence of the high level of general acceptance of the test by the relevant provider community.
See paragraph #76 of the decision where the judge concludes:
76. Additionally, based on a review of the entire record, the Petitioner has demonstrated, by a preponderance of the evidence, that SEMG has a level of general acceptance by the relevant provider community. SEMG is regularly used by
chiropractic physicians who are a part of the relevant provider community.
The Florida Chiropractic Association and the Florida Chiropractic Society, the leading chiropractic professional groups in Florida, agree that SEMG is generally accepted by the
practicing chiropractic community. The basis for the rating of “established” in the CPG, has been accepted and endorsed by the Florida Board of Chiropractic, the chiropractic physician
regulatory and licensing arm of the Department of Health.
The American Medical Association had determined that SEMG is a distinct service performed by many physicians and practitioners across the United States.
In addition, the clinical efficacy of SEMG has become established and documented as reflected in peer reviewed literature. Therefore, by including SEMG in Florida
Administrative Code Rule 64B-3.004(2) the Department has exceeded its grant of rulemaking authority conferred by Section 627.736(5)(b)6., Florida Statutes, and has enlarged, modified, or
contravened the specific provisions of Section 627.736(5)(b)6., Florida Statutes. As such, Florida Administrative Code Rule 64B-3.004(2) is an invalid exercise of delegated legislative
authority.
The key word here is “distinct service”, meaning that it was interpreted by the court as to be functional independent of a motion analysis lab.
In the actual trial, if you review the court transcript you will note that it was determined by the court that the AMA CPT code did NOT in fact require a “Motion Analysis Laboratory” to perform Dynamic Surface EMG tests, and that the Dynamic Surface EMG code was in fact distinct and separate from the Motion Analysis section where it resides.
The court determined after significant argument that the CPT codebook was very clear about separating Dynamic Surface EMG from Motion Analysis, and that Dynamic Surface EMG COULD in fact be performed, and billed under the code based upon the CPT codebook without a motion Analysis laboratory.
If you read the CPT code under Motion analysis, you will note the following:
It states that “Codes 96000-96004 describe services performed as part of a major therapeutic or diagnostic decision making process”. The next sentence which states: “Motion analysis is performed in a dedicated motion analysis laboratory (i.e., a facility capable of performing videotaping from the front, back and both sides, computerized 3-D kinematics, 3-D kinetics and dynamic electromyography)” by using the term “Motion analysis” refers specifically to code 96000 and 96001.
The CPT code book makes quite clear, that dynamic electromyography is separate from the requirements of the motion analysis laboratory by stating: “Codes 96002-96003 describe dynamic electromyography” , separating dynamic EMG from “Motion analysis”, meaning the need for a facility which includes the ability to videotape is excluded from this code. If this were not the case, code 96002 would include the words “Motion Analysis” in the actual verbiage.
Therefore, the office where the MyoVision testing occurred was and is equipped with the proper instrumentation for the utilization of the surface electromyography as described by the CPT code referenced.
In addition, the state of Washington WAC 246-808-505 list of “Procedures and Instrumentation Approved by the Chiropractic Quality Assurance Commission” has found that not only is “Electrode Paraspinal Electromyography (EMG) –Surface approved (see page 1 of the document), but the MyoVision unit itself, utilized by the office filing the claim is specifically approved (page 2 of the WAC document).
In light of all the supporting evidence presented in this letter, the justification for your denial is clearly shown to be incorrect, and payment is therefore due for the services provided.
If you have any further questions, contact me at 206-448-3464.
Sincerely,
David Marcarian, MA
Surface Electromyography Expert Witness
NOTE: List of References on next page.
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