Okslen Acupuncture P.C. v Travco Ins. Co., 2014 NY Slip Op 51209(U)(App. Term 1st Dept. 2014):
“The affidavits submitted by defendant in support of its motion for summary judgment established prima facie that defendant timely and properly denied plaintiff’s no-fault claim to the extent plaintiff sought reimbursement in an amount greater than that authorized by the workers’ compensation fee schedule applicable to physicians who render acupuncture services (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Gen. Ins. Co., 16 Misc 3d 23 ). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the claim denial or the calculation of the fee. With respect to the latter, the affirmation submitted by plaintiff’s counsel did not address the nature of the acupuncture services rendered to plaintiff’s assignor, much less demonstrate that those services were not “similar” to acupuncture services generally provided by physicians, so as to exempt plaintiff from the reach of the physicians’ workers’ compensation fee schedule”
What is interesting is that this is now the second time this Court has left the door open for a medical provider – on a proper record – to obtain a fee for acupuncture in excess of that established in the chiropractor fee schedule. Nobody ha succeeded as of yet.
Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co., 2014 NY Slip Op 51127(U)(App. Term 1st Dept. 2014)
“Contrary to plaintiff’s assertion, the affidavit submitted by defendant’s claims representative, together with excerpts of the fee schedule of which we may take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 ), were sufficient to establish defendant’s proper calculation of the fees due under the schedule (see Natural Acupuncture Health, P.C. v. Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 500410[U] [App Term, 1st Dept 2011]; see also GL Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51448[U] [App Term, 2nd, 11th & 13th Jud Dists 2013]).”
The real challenge with acupuncture fee schedule cases is not necessarily the reduction of the standard service codes to the chiropractor fee schedule rate. The problem involves the evaluation codes and physical therapy codes that are not properly reduced. While GL Acupuncture (my case – and if you read the record you would see that the initial visit was properly paid at the chiro rate) involved an initial service code paid at the chiropractic case, the newer issues involve the proper payments of other non-scheduled codes.
The consensus is to allow payment at the chiropractor rate for these services.
Triumph Assoc. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 50875(U)(App. Term 2d Dept. 2014)
(1) This either explicitly or implicitly overrules Doctor in the House (District Court, Suffolk County). I am assuming the Ground Rule 11 issue involved multiple providers fighting for the coveted 8, 11 or 13.5 per diem units. Also, note the absence of the the necessity to introduce expert evidence to substantiate the fee schedule reduction.
“The affidavit of defendant’s litigation examiner established that defendant had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also demonstrated that its denial of $583.56 of plaintiff’s $1,291.96 claim was based on the workers’ compensation fee schedule, pursuant to which plaintiff was entitled to only $708.40, which sum defendant had paid. Defendant further showed that it had properly denied plaintiff’s $305.36 claim in accordance with the workers’ compensation fee schedule because plaintiff’s claim was contrary to Physical Medicine Ground Rule 11. As plaintiff failed to raise a triable issue of fact with respect to defendant’s application of the workers’ compensation fee schedule, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.”
(2) Some standard was enuniciated with respect to defeating an medical necessity motion predicated upon an IME cut off
“To the extent that defendant timely denied the remaining claims on the ground of lack of medical necessity, the affirmation from the doctor who performed an independent medical examination (IME) on defendant’s behalf was sufficient to establish defendant’s prima facie entitlement to summary judgment dismissing these claims. However, in opposition to defendant’s cross motion, plaintiff submitted an affirmation from plaintiff’s assignor’s treating doctor who stated that he had examined the assignor six days after the IME. His findings contradicted the findings of defendant’s IME doctor and was sufficient to raise a triable issue of fact as to the medical necessity of the remaining claims”
SK Prime Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 50630(U)(App. Term 2d Dept. 2014)
This is the first application of “Great Wall” outside the realm of the acupuncture fee schedule. It is great to see meritless appeals create good case law.
“ Finally defendant’s submission of its claims representative’s affidavit, along with a copy of the “NYS Medicaid DME Services Fee Schedule,” which has been adopted as the Durable Medical Goods Fee Schedule for Workers’ Compensation (see 12 NYCRR 442.2 [a]), was sufficient to demonstrate that plaintiff was entitled to receive $22.04 for Code E0190, the sum defendant has already paid, and not $24.00, the sum that plaintiff had billed (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).”
Ema Acupuncture, P.C. v Geico Ins. Co., 2014 NY Slip Op 50415(U)(App. Term 2d Dept. 2014)
Not sure why Kings County is the only venue where Great Wall does not apply and a substitute peer gets knocked out of the box, save 2-3 judges, despite the legion of caselaw which says otherwise. Add the briefing schedule which is the ultimate technicality and you have pure entropy. How many times has a plaintiff or a defendant been prejudiced due to a violation of the briefing schedule?
I digress for good reason. Here, the Court refused to comply with Great Wall. And once again, the Appellate Term says otherwise.
(1) “As to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition, plaintiff relied upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of [*2]fact.”
(2) “Defendant did not raise any issue warranting the dismissal of plaintiff’s claim for $154.29 for the initial acupuncture visit on January 6, 2009, billed for under fee schedule treatment code 99205″
(3) “Defendant’s contention that plaintiff is barred from recovering attorney’s fees with respect thereto pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.6 (i) lacks merit.”
(LMS Acupuncture, P.C. v Geico Ins. Co., 2014 NY Slip Op 50416(U)(App. Term 2d Dept. 2014))
Martin Plutno v Travelers Ins. Co., 2014 NY Slip Op 50412(U)(App. Term 2d Dept. 2014)
(1) Simple fee schedule arithmetic may be performed by “defendant’s employee”: “The affidavit submitted by defendant’s employee established that, as to plaintiff’s claim for dates of service August 3, 2007 through August 25, 2007 seeking the sum of $235.90, defendant had paid $134.80 thereof and had denied the remaining $101.10 on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers’ compensation fee schedule.”
(2) “defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for further treatment”
(3) “However, plaintiff did submit, among other things, a letter of medical necessity sworn to by plaintiff’s treating chiropractor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered”
My own thought process is now there is another split in the departments. The First Department has a more stringent post-IME “here at issue test”. This Court solely requires a letter of medical necessity to defeat a summary judgment motion.
Hercules Med., PC v Cabello, 2013 NY Slip Op 52186(U)(App. Term 1st Dept. 2013)
“A fair interpretation of the evidence supports the trial court’s determination that plaintiff, an out-of-network medical service provider, was entitled to recover for examination and testing services rendered to defendant for which defendant failed to pay, despite timely demand. Indeed, defendant did not dispute that the services billed for were rendered, or the reasonableness of the amounts charged for each particular service. Nor did defendant adduce any competent expert medical proof to support her assertion that the services here in dispute were not medically necessary (see Mount Vernon Hosp. v Brennan, 21 Misc 3d 140[A], 2008 NY Slip Op 52358[U] [App Term, 2nd Dept 2008]; see generally Viacom Intl. v Midtown Realty Co., 193 AD2d 45, 55 ).”
If you read the Mount Vernon Hospital case that was cited, the Court required the hospital “[to] establish that the charges for the services rendered were fair and reasonable.”
Fair and reasonable seems to be an important issue in the realm of no-fault as it applies to services rendered out of state. Compare, 11 NYCRR 68.6
Lotus Acupuncture, P.C. v MVAIC, 2013 NY Slip Op 51925(U)(App. Term 1st Dept. 2013)
“The affidavits submitted by defendant in support of its motion for summary judgment established that defendant timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) plaintiff’s claim for assigned first-party no-fault benefits on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker’s compensation fee schedule. In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee. Therefore, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule – should have been granted.”
This case does not seem to stand for much since we do not know if MVAIC paid the chiro or physician rate for the acupuncture services at issue.
Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 2013 NY Slip Op 51860(U)(App. Term 1st Dept. 2013)
“The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.” (This looks like an old 97780 case)
Defendant’s prima facie entitlement to summary judgment
“[defendant properly limited payment to "charges permissible for similar procedures under schedules already adopted or established by the superintendent" (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 ), specifically, the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 ; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]).”
Plaintiff failed to raise an issue of fact
“Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate.”
Note how the Appellate Term Second Department resolved the issues: “Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services”. Yet, the Court is still allowing Plaintiff’s to present proof to vault Great Wall II. Interesting.
Doctor of Medicine in the House, P.C. v Allstate Ins. Co., 2013 NY Slip Op 23357 (District Ct. Suffolk Co. 2013)
“Paragraph 11 of the New York Compensation Medical Fee Schedule provides:
Multiple Physical Medicine Procedures and Modalities:
When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less. The following codes represent the physical medicine procedures and modalities subject to this rule. . .”
“The purpose of the Workers’ Compensation Medical Fee Schedule is to prevent “excessive billing” by each individual provider and not to create an “exhaustion” of benefits competition between claimants as is clearly the intent of Sec. 65-3.15. The fee schedule is a guideline on how to properly fill out and submit a claim. Such a finding is consistent with the Court of Appeals direction to interpret “no-fault” regulations in such a manner as to not frustrate the legislative intent of requiring prompt payment of benefits. See Nyack Hosp. v. Gen. Motors Accept. Corp., 8 NY3d 294 (NY 2007), citing to Med. Soc. of NY v.Serio, 100 NY2d 854 (NY 2003). Paragraph 11 does not indicate that it regulates benefits for “all” claims on any given day.”
“Accordingly, the Court enters judgment for the plaintiff allowing reimbursement for 8 of its claims’ 10 billing units, in the sum of $1,876.76 plus appropriate statutory interest, attorneys fees and costs.”
This is a District Court opinion so its precedential value is limited. I believe ground rule 11 applies to all services, except chiropractor CMT services rendered on the same day as PT/OT/MT services. To hold otherwise could allow $1000 PT service type per diem billing. This decision is against the weight of authority from most arbitrators and other judges.
I would note that in Ashraf Ashour v. Interboro, the fee schedule issue involved CPT Code 97039 when 8 units of PT were already billed and paid from another provider on the same dates of service. The Appellate Term granted our summary judgment motion. So, take Doctor in the House for what it is worth.