PF-NCS – a thought

One of the “tests” that we see a lot of are on the run of the mill CPT, V-SNCT, PF-NCT.  Of course, if you ask a Claimant “Have you ever had a CPT, V-SNCT, PF-NCT test?”, they will look at you with googly eyes.  But when you show them a pen and say “you know, the test where this pen like device [hold the pen] is connected to a computer and areas of your body are touched”, then they say, “oh I remember that.”  Then you ask them, did anyone tell you the results?  Nope.

This testing has three defenses.  The first is the “fraud” defense.  I lost that one 10 years ago, but had fun trying (Tahir v. Progressive).  Nothing more will be said as the testing (even to its most vocal critics) has some valid purposes when dealing with diabetic neuropathy.

The second defense I am now seeing en vogue is the “coding” defense.  Should the test be billed at 95903, 95999 or a T-3 code?  Different people have different answers.  My vote is for a T-3 code.  This has had success at arbitrations.  I would be interested to see what the Appellate Term says (when a proper foundation is adduced at either trial or on motion practice).  The 95903 code appears to be from an  instruction manual that the end user gets when they purchase the Axion-II machine (or its predecessors).

The new PF-NCT purports not  to be entirely subjective as  there is a potentiameter.  Still, the patient is in control as (s) he is told to explain when they feel pain during the performance of the test, hence the subjective component.  Thus, the potentiometer is supposed to objectify the subjective component of the test.

The third defense is based upon the EMG/NCV test occurring within weeks or a few months of the PF-NCT test during the patient’s treatment path.  The theory, and I think it is quite valid, is pick your test.  Either perform the EMG/NCV test (the so-called “gold-standard”) or the PF-NCT test, but not both.  The detractors of this argument will say the the PF-NCT is more sensitive to A- fibers and C-Fibers (pain receptors) that the EMG/NCV does not address.  But isn’t an EMG/NCV when appropriately performed with an examination sufficient to obtain all of the objective data?  Many time, the EMG/NCV may also be overkill.

Also, if you take a pin and prick various parts of the body (waiting to elicit a response from the patient), shouldn’t this be sufficient to determine the extent of the pain fibers and to allow the clinician to accurately determine where there is sensitivity.

My encounter with G0283

Today was my first encounter with this G0283.  I was thinking R2D2 at first and a rerun of Star Wars.  I am embarrassed that I have not seen this code before.  Perhaps I saw it subconsciously and chose to ignore it hoping it would go away.  Well, denial is never the answer.

I have seen 20553 (since losing its BR status) turn into 64999 and we have all seen many 97013 codes turn into 97799 codes.  Surface EMG’s became 95999 (occasionally).  The list goes on.  But G0283 came out of nowhere to replace 97032 (electrical stimulation) and to conceptually beat the 8 unit rule absent a coding review.  Very sneaky.

This creative billing is making me seriously think that the courts and arbitrators should read 65-3.8(g)(ii) to force an Applicant to prove merits of its billing as a prima facie burden.  I took the reluctant view that this regulation was limited to overturn Encare and Westchester v. American Transit involving the precludability of a fee schedule defense.  But in light of a lot of the creative fee coding that I see going on, it just might make sense to make a provider present prima facie evidence explaining why G0283 (or any by report code) should not be evaluated at 97032, or why the “needling” of 97799 should not be a 20553 code.  The by-report code technically puts the burden on the provider to demonstrate its veracity; however, the courts have swept this feature of the the fee schedule under the rug under the “proof and amount of claim” formulation that has been the law since 2003.

Proving a negative is the story of New York no-fault.  But perhaps it is time to modernize the law as it relates to the fee schedule issue.  ”Proof and amount of claim” should really require proof that the provider prove the billing is accurate.  If you walk into a forthright arbitration in NJ or a County Court in Florida on a no-fault claim and argue otherwise, your case will end quite quickly.

Why is the Empire State so different?

Disclosure penalties discussed

Cason v Smith, 2014 NY Slip Op 06412 (4th Dept. 2014)

This is an interesting discovery case.  The first principle is that once the employee leaves the employ, a 3126 sanction is not proper.

The second principle involves getting blood from a stone.  Once the to be deposed party folds its tend and concedes the key point, the adverse party cannot get the answer stricken or the complaint dismissed when the to be deposed party skips deposition.


“We agree with defendants, however, that the court abused its discretion in striking the answer insofar as interposed by Werner. Initially, we note that there was no basis for the court to sanction Werner for failing to produce Smith inasmuch as Smith left Werner’s employ prior to commencement of the action, and plaintiff “proffered no evidence that [Werner] exercised control over [Smith] and thus was responsible for [Smith]‘s failure to appear for his deposition”"


With respect to Werner’s failure to comply with a prior order

to produce a corporate representative for deposition, it is well established that “[a]lthough the nature and degree of a sanction for a party’s failure to comply with discovery generally is a matter reserved to the sound discretion of the trial court, the drastic remedy of striking an answer is inappropriate absent a showing that the failure to comply is willful, contumacious, or in bad faith” (Green v Kingdom Garage Corp., 34 AD3d 1373, 1374; see Mosey v County of Erie, 117 AD3d 1381, 1384). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1619). Here, plaintiff met that initial burden, “thereby shifting the burden to defendant[s] to offer a reasonable excuse” (Hill v Oberoi, 13 AD3d 1095, 1096). We agree with Werner, however, that it offered a reasonable excuse for its failure to comply with the prior order. Plaintiff sought to depose a Werner representative solely in connection with his cause of action involving negligent hiring, training, and supervision, and such discovery was no longer relevant after Werner conceded the facts necessary to establish liability as a matter of law based on respondeat superior”

Those tax returns…

Young v Lacy, 2014 NY Slip Op 06417 (4th Dept. 2014)

This is an interesting case on impeaching a witness with improperly filed tax returns.  Looks like Plaintiff was going for lost wages in this 5102(d) claim and the defense attorney knew something was awry.  The judge blocked the defense attorney and now a $330,000 personal injury award has been reversed.   For those who practice outside the five boroughs and northwest of the Hudson, hitting for $330,000 on a PI claim is not an easy feat.

“At trial, defendant’s attorney sought to question plaintiff about information in her federal tax returns that he believed to be inaccurate. Specifically, he wanted to ask plaintiff why she had filed as head of household for four consecutive years when she had been married and living with her husband during that period. He also sought to ask plaintiff how many of her children she had claimed as dependency exemptions. According to defendant’s attorney, plaintiff, as a result of her improper filing as head of household, had received a tax credit to which she would not otherwise have been entitled. The court precluded defendant’s attorney from asking plaintiff any questions about information in her federal tax returns, explaining that, because plaintiff had not been asked about such issues at her deposition, defendant’s attorney was improperly attempting to “ambush” her at trial. Defendant’s attorney objected to the court’s ruling, thereby preserving the issue for our review.

“It is, of course, the general rule that a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness’s credibility . . . While the nature and extent of such cross-examination is discretionary with the trial court . . . , the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue” (Badr v Hogan, 75 NY2d 629, 634). Furthermore, ” cross-examination aimed at establishing a possible reason to fabricate must proceed upon some good-faith basis’ ” (Matter of Michael U. [Marcus U.], 110 AD3d 821, 822).

Here, based on his reading of IRS Publication 51 and plaintiff’s federal tax returns, defendant’s attorney had a good faith basis to ask plaintiff about the propriety of her filing status. Moreover, if plaintiff had improperly filed federal tax returns as head of household in order to receive a tax credit to which she was not entitled, it raises the possibility that she may have committed tax fraud. We conclude that evidence that plaintiff may have committed tax fraud has “some tendency to show moral turpitude to be relevant on the credibility issue” (Badr, 75 NY2d at 634; see generally Delgado v Murray, 115 AD3d 417, 418). Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant’s attorney would have been bound by plaintiff’s answers concerning her federal tax returns without “refuting [those] answers by calling other witnesses or by producing extrinsic evidence” (Prince, Richardson on Evidence § 6-305 [Farrell 11th ed]; see also People v Schwartzman, 24 NY2d 241, 245, cert denied 396 US 846; Casa de Meadows Inc. [Cayman Is.] v Zaman, 76 AD3d 917, 924), we nevertheless conclude that defendant’s attorney should have been allowed to ask the questions (see McNeill v LaSalle Partners, 52 AD3d 407, 410).

Plaintiff’s reliance on Badr (75 NY2d 629) is misplaced. In that case, the plaintiff in a personal injury action was asked on cross-examination whether she had committed welfare fraud. After plaintiff answered “[n]o” (id. at 632), the defendant’s attorney marked as an exhibit a confession of judgment wherein plaintiff had admitted that she had improperly received money from the Department of Social Services and had agreed to pay it back. Over plaintiff’s objection, the court allowed defendant’s attorney to use the confession of judgment to impeach plaintiff’s testimony that she had not committed welfare fraud. The Court of Appeals determined that it was reversible error for the trial court to have allowed the defendant’s attorney to useextrinsic evidence, i.e., the confession of judgment, to impeach plaintiff’s credibility (id. at 634-636).

The question presented in the case before us is not whether the court should have allowed defendant’s attorney to impeach plaintiff’s credibility with extrinsic evidence; rather, the question is whether the court should have allowed defendant’s attorney to question plaintiff about information in plaintiff’s federal tax returns that he believed to be inaccurate. Notably, the Court of Appeals in Badr did not suggest that it was error for the defendant’s attorney to ask the plaintiff whether she had committed welfare fraud; the error occurred in allowing the defendant’s attorney to use extrinsic evidence to show that the plaintiff’s answer to the fraud question was false. Here, defendant’s attorney was not permitted even to ask plaintiff his questions, and thus the facts of this case do not come within the holding of Badr. Finally, because plaintiff’s credibility was central to several close issues at trial—including proximate cause, serious injury, and damages—it cannot be said that the error is harmless.”

Alrof”t” (read the cited to decisions)

I am not sure what to make of these two decisions.  Read them yourself.  I think Alrof is wrong.  The Appellate Division in Lucas rejected it and the Appellate Term, Second Department in Quality  v. Interboro clearly will not hold it as sacrosanct when a proper practice and procedure affidavit is presented.

Medcare Supply Inc. v Travelers Prop. Cas. Co. of Am., 2014 NY Slip Op 51421(U)(Civ. Ct. NY Co. 2014)

New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 24277 (Civ. Ct. NY Co. 2014)

Department of health weighs in on CPM – rationality

 CPM opinion letter

I thank my friends at Richard Lau’s office for this one.

Many of us have battled non-listed DME viz CPM equipment.  The argument that is raised is that the Medicaid fee schedule’s limitations (i.e. ground rules) does not apply to CPM since it is not in the Medicaid fee schedule.  Thus, when an invoice is presented and the 1/6 of invoice cost divided by 30 formula is presented, Applicant vehemently argues and says the ground rule should not apply to the CPM provider since it is not in the fee schedule.

Applicant goes on and says that it is entitled to the U&C value, which “according to Inegnix” and the “high standard of living” in New York comes out to between $80-$88 per rental date.  Some experts have presented affidavits that U&C can be $17-25 per rental date.

The Department of Health has written on this issue, and they have proclaimed that 1/6 of invoice cost divided by 30 is the proper reimbursement for CPM equipment.  In the realm of no-fault litigation, proclamations of an administrative agency through informal letter will usually have prima facie effect on the issue at bar.  LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 N.Y.3d 217 (2000)

So you sued the TPA and not the insurance carrier – now what?

B&R Consol., LLC v Zurich Am. Ins. Co., 2014 NY Slip Op 06287 (2d Dept. 2014)

“The defendants’ contention that Zurich is not a proper party to this action under Insurance Law § 3420(b) because it did not issue the subject policy to Powell is without merit. Although the defendants made a prima facie showing that Zurich did not issue the subject policy by submitting a copy of the policy’s declaration page, which stated that the issuing company was American Guarantee, B & R established in opposition to the defendants’ motion and in support of its cross motion that an apparent agency relationship existed between Zurich and American Guarantee which extended potential vicarious liability to Zurich (see generally Hallock v State of New York, 64 NY2d 224, 231). In addition to the presence of Zurich’s logo on documents created and distributed by American Guarantee, B & R demonstrated that Zurich’s claims counsel was assigned to handle Powell’s case, that the assigned counsel was required to follow Zurich’s guidelines and to submit bills to Zurich, and that Powell was contacted by Zurich’s Customer Care Center regarding the claim and was directed to file his claim on Zurich’s website (see Fletcher v Atex, Inc., 68 F3d 1451, 1461-1462 [2d Cir]). This evidence of Zurich’s direct participation in the administration of Powell’s claim is sufficient to establish, prima facie, that an agency relationship existed between Zurich and American Guarantee such that Zurich may be held liable to B & R (see In re Parmalat Sec. Litig., 375 F Supp 2d 278, 295 [SD NY]). In opposition to B & R’s cross motion, the defendants failed to raise a triable issue of fact.”

Admittedly, this is an issue that never really concerned me personally.  I used to like watching a certain plaintiff attorney who has cluttered the Appellate Term with senseless appeals lose cases where he sued the TPA.  But the joy turned to anger when an insurance carrier called me on one of my Article 75 UM Petitions, demanded I discontinue against him because I sought to join a TPA as a proposed additional respondent and then demanded “costs” because I would not withdraw that branch of my Petition.

Alas, I will now have the last laugh :-)

Peer review of acupuncture not substantitated

Shirom Acupuncture, P.C. v Kemper Independence Ins. Co., 2014 NY Slip Op 51407(U)(App. Term 1st Dept. 2014)

“We agree that the peer review report relied upon by the defendant-insurer was insufficient to establish, as a matter of law, that the acupuncture services underlying plaintiff’s $2,175 no-fault claim lacked medical necessity. The report addressed the medical necessity of acupuncture services rendered to plaintiff’s assignor during a time frame prior to that covered by the bills sued upon here, with defendant’s peer reviewer basing his finding of a lack of medical necessity on narrow grounds, viz., the perceived vagueness of the provider’s initial acupuncture report and treatment notes. In such form, and since defendant’s peer reviewer stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatments, his report cannot be read so broadly as to justify, without more, the denial of any and all future claims for acupuncture services rendered to the assignor. Thus, summary judgment dismissal of this claim was properly withheld.”

This one is interesting.  How many acupuncture cases have you seen where the insurance carrier denied all billing based upon a prior peer review?   I am surprised this was taken on appeal.  But what is interesting is that a peer review for an initial set of services can state broadly that all further services would not be medically necessary and the peer would (it appears) satisfy the initial burden of persuasion.

This case can definitely be used (with a proper peer review) to substantiate the denial of all pre-IME conservative therapeutic service.

Default not granted and a questionable appeal

Metropolitan Prop. & Cas. Ins. Co. v Braun, 2014 NY Slip Op 06283 (1st Dept. 2014)

“The motion court providently exercised it discretion in granting defendants’ cross motion for an extension of time to interpose an answer. Under the circumstances, although defendants’ assertion of law office failure “is not particularly compelling, it constitutes good cause for the delay” (Lamar v City of New York, 68 AD3d 449, 449 [1st Dept 2009] [internal quotation marks omitted]). There is no evidence that plaintiffs have been prejudiced, and the record shows that plaintiffs had previously agreed to an extension of time for defendants to answer. Contrary to plaintiffs’ contentions, a meritorious defense was not required for defendants to be granted an extension of time to answer (see Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]; Cirillo v Macy’s, Inc., 61 AD3d 538, 540 [1st Dept 2009]).”

I read this and I asked myself why Plaintiff did not accept the answer and just move for summary judgment?  Interboro/Perez (my contribution) and the litany of other cases shows that a less than a compelling excuse is all that is necessary to defeat a motion for leave to enter a default.  Seems like a suicide march, and for no reason.

Submit order?

47 Thames Realty, LLC v Robinson, 2014 NY Slip Op 06051 (2d Dept. 2014)

“22 NYCRR 202.48, entitled “[s]ubmission of orders, judgments and decrees for signature,” states in pertinent part:

“(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

“(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.”

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court’s direction that the defendants submit a proposed order with respect to an award of an attorney’s fee did not specify that the proposed order be settled or submitted on notice (see Farkas v Farkas, 11 NY3d 300, 309; Shamshovich v Shvartsman, 110 AD3d 975, 976-977; Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027, 1029). Accordingly, the plaintiff’s contention that the defendants abandoned their claim for an award of an attorney’s fee by failing to comply with the 60-day rule is without merit.”

Just note the difference between the three directives that do not arise from a “decision/order”: (a) Submit order [not within gambit of 60-day rule]; (b) Settle order [within gambit of 60-day rule]; (c) submit order on notice [within gambit of 60-day rule].

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