FEB. 16, 2005 — Florida insurers can no longer deny reimbursement of charges for surface electromyography (SEMG) in personal injury (PI) cases. A Florida administrative judge struck down a rule that had denied reimbursement of SEMGs because they were “not medically necessary.”
In 2003, the Florida legislature enacted Section 627.736(5)(b)6, part of the Florida motor vehicle no-fault law. The law required the Department of Health (DOH) to adopt of a list of diagnostic tests “deemed not to be medically necessary. … Inclusion of a test on the list of invalid diagnostic tests shall be based on lack of demonstrated medical value and a level of general acceptance by the relevant provider community …”
The final list adopted by the DOH included spinal ultrasound, SEMB, somatosensory evoked potention and dermatomal evoked potential.
A Lakeland, Fla., chiropractor, Richard W. Merritt, DC, challenged the inclusion of the four tests on the list. Later, he amended his petition to challenge SEMG only, since that was the only test he personally used.
Merritt’s attorneys, E. Gary Early and Albert T. Gimbel, argued that SEMG was medically necessary as defined by the statute and that the DOH exceeded its grant of rulemaking authority.
Testifying in support of the rule David Marcarian, president of MyoVision and Merritt. Both Marcarian and Merritt testified concerning the principles of SEMG, how it works, its usage in identifying and diagnosing injury commonly encountered in vehicular accidents and its use in the chiropractic field.
Testifying in opposition to the rule were Mark Rubenstein, MD, a physiatrist and Gene Jenkins, DC, as well as an attorney who serves as executive director of the DOH board of medicine and counsel for Florida for State Farm Insurance Companies.
Presiding over the hearing was Administrative Judge Diane Cleavinger. She ruled that SEMG had demonstrated medical value, a level of general acceptance by the relevant provider community and was not dependent for results entirely upon subjective patient response.
According to attorney Early, the effect of the invalidation of the the rule is that insurers can no longer use the rule as a basis for denying reimbursement of charges for SEMG. It does not affect other bases for denial of a claim, such as overutilization.