Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 2015 NY Slip Op 01413 (2d Dept. 2015)
(1) “We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d.”
(2) “Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” (Insurance Law § 5108[a])[FN3]. Where Workers’ Compensation schedules have not been prepared for certain services covered under Insurance Law § 5102, Insurance Law § 5108 requires that the Superintendent of Financial Services establish schedules after consulting with the [*3]chairperson of the Workers’ Compensation Board and the Commissioner of Health”
(3) “The implementing and coordinating regulations of the Department of Financial Services [FN4]—11 NYCRR 65 3.16 (Regulation No. 68-C; “Measurement of no-fault benefits”)—refer, in turn, to “Regulation No. 83.” Regulation No. 83 (11 NYCRR 68.0) adopts the Workers’ Compensation schedules that were already in existence (see 11 NYCRR 68.1 ["Adoption of certain workers' compensation schedules"]; 12 NYCRR 329.3 ["Medical fee schedule; incorporation by reference"]), and establishes schedules for services not already contained in Workers’ Compensation schedules (11 NYCRR 68.2 ["Establishment of certain health provider schedules"]).”
(4) “Further, Avanguard points out that Regulation No. 83 includes a default provision in recognition that not all covered services will be contained in the applicable fee schedules. This provision—11 NYCRR 68.5 (“Health services not set forth in schedules”)—provides a mechanism for determination of appropriate fees for those services that are included within the definition of “basic economic loss” but are not contained in a schedule. Avanguard contends that, under this “default” regulation, it is entitled to a facility fee and that this fee is the same fee provided to ambulatory surgical centers under article 28 of the Public Health Law.
(5)“the determination of what is a necessary expense must take Insurance Law § 5108 into account. There is no provision in the Workers’ Compensation schedules expressly providing for payment of facility fees for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. The absence of such a provision supports GEICO’s argument that a facility fee is not a necessary expense for medical services performed by a practice and in a facility accredited under Public Health Law § 230-d”
(6)“Section 68.5 Health services not set forth in schedules
“If a professional health service is performed which is reimbursable under section 5102(a)(1) of the Insurance Law, but is not set forth in fee schedules adopted or established by the superintendent, and:
“(a) if the superintendent has adopted or established a fee schedule applicable to the provider, then the provider shall establish a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule, subject to review by the insurer; or
“(b) if the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5; [emphasis added]).
Under this regulation, a provider may be entitled to reimbursement in situations when there is no fee schedule for a particular service. Avanguard cannot accurately assert that there is no existing fee schedule that determines the amount of a facility fee. Indeed, it is undisputed that Avanguard has consistently billed GEICO for facility fees based on the existing fee schedule and “PAS” codes that are applicable to Public Health Law article 28 ambulatory surgical centers (see 10 NYCRR 86-4.1, 86-4.40). Accordingly, there is indeed a fee schedule for facility fees. That schedule, however, it is not applicable to Avanguard. Thus, a prerequisite to application of the default provision is absent.
(7) “The conclusion that the default provision is inapplicable makes sense in light of its purpose. The default provision relates to particular procedures that do not appear on any existing fee schedule (see 11 NYCRR 68.5[a], [b]). A facility fee is not a fee for a particular medical procedure, but a blanket charge added to the billing for all procedures. In other words, Avanguard contends that, under the default regulation, an entire category of fees should be deemed compensable. We reject such a broad interpretation of the default provision, because the obvious intent of the default provision is to fill in discrete gaps in the schedules, not to make an entirely new category of “service” compensable”
Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co., 2015 NY Slip Op 50078(U)(App. Term 2d Dept. 2015)
“Defendant denied plaintiff’s claims on the grounds that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid for the billed-for services in accordance with the fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, the affidavit executed by a fee schedule adjuster [*2]for defendant’s vendor, Managed Care Network, established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue”
So here, you have a vendor’s affidavit establishing the merits of the fee schedule defense. Generally, this type of issue can be handled through claims representative affidavit.
Health Needles Acupuncture, P.C. v GEICO Ins. Co., 2014 NY Slip Op 51864(U)(App. Term 2d Dept. 2014)
“On appeal, plaintiff argues that defendant failed to establish that its fee schedule reductions were proper. We disagree and find that defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors”
Surgicare Surgical v National Interstate Ins. Co., 2014 NY Slip Op 24362 (Civ. Ct. Bronx Co. 2014)
The quick synopsis of this case is that were the services are performed in a state where there is a fee schedule for these types of service, the state’s fee schedule will control. It makes sense, and the Court goes on to note that not applying this rule will turn every “simple” no-fault matter into a battle of coding and billing experts. This is antithetical to the realm of no-fault. I personally like how the Court uses 68.5(b) to create a rule that a reasonable and customary amount will only be permissible upon there being no way to harmonize the fee schedule with the service provided.
“In a claim brought under New York’s Comprehensive Motor Vehicle Insurance Reparations Act, otherwise referred to as the “No-Fault Law” (see New York Insurance Law § 5101, et seq.), a provider’s reimbursement for eligible health services performed in New York “shall not exceed the charges permissible under [the fee schedule established by the New York State Workers' Compensation Board]” (see Insurance Law § 5108[a]). Under subdivision (b), “no provider of health services may demand or request any payment in addition to the charges authorized [under the fee schedule]” (Insurance Law § 5108).
Responsibility for administering the Insurance Law rests with the Superintendent of Insurance who has “broad power to interpret, clarify, and implement the legislative policy” (see Insurance Law § 301; A.M. Med. Services, P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2d Dept 2012] [internal quotations omitted]). In the no-fault context, Section 5108 (b) of the Insurance Law empowers the Superintendent to “promulgate rules and regulations implementing and coordinating the provisions of [the No—Fault Law] . . .” These rules, found in Part 68 of the New York Insurance Department Regulations, “govern the charges for professional health services” (see Great Wall Acupuncture v Geico General Ins. Co., 16 Misc 3d 23 [App Term, 2d Dept 2007]).
Within this regulatory framework, the Insurance Department has promulgated Section 68.6 which provides that:
“If a professional health service is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (11 NYCRR § 68.6).
The question of exactly what constitutes the “prevailing fee” in this context appears to be one of first impression since neither of the parties nor this Court have located authority interpreting Section 68.6 in relation to a state which utilizes a no-fault fee schedule. However, the Superintendent of Insurance has issued a formal Opinion interpreting Section 68.6 in the context of a foreign jurisdiction that apparently did not have a fee schedule. The Opinion, which involved a question of licensure for physical therapists providing health services in Guatemala, specifically cites the Section at issue and states:
As to the amount of the reimbursement, where the health services are provided outside of New York State . . . [t]he dollar amount of the reimbursement for physical therapy services (or other professional health services) performed on an eligible injured person under a New York No-Fault insurance policy in Guatemala is determined by the permissible cost for such services in Guatemala (General Counsel Opinion 4-1-2003 (No.3), 2003 WL 24312368 (US), 2 [emphasis added]).
The Superintendent’s use of the word “permissible” is significant as it strongly suggests that reimbursement for health services performed in a foreign jurisdiction may be regulated by that jurisdiction’s laws, including a governing no-fault regime. Indeed, the principle of limiting reimbursements to “permissible” amounts is mirrored in the section of the Insurance Law that codifies the No-Fault Law’s salient feature of explicitly restricting reimbursement for health services performed in New York to the amounts allowable by this State’s fee schedule (see Ins. Law Section 5108[a]); therefore, it is only logical that the same principle should apply to foreign jurisdictions. Consistent with the use of “permissible ” in the core provision of the No-Fault Law, the Superintendent has reasonably interpreted the language of Section 68.6 to require that an insurer pay for any health service performed in a locale outside of New York at the permissible cost for that location. As such, the Superintendent’s interpretation of its own regulations is entitled to deference (LMK Psychological Services, P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223  ["the Insurance Superintendent's interpretation of its own regulations if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision'").
In addition, the language of the preceding subsection within Section 68.6 also utilizes the term "prevailing fee." That subsection, Section 68.5 (b), states that:
"If a professional health service is performed which is [eligible for no-fault benefits], but is not set forth in fee schedules adopted or established by the superintendent, and if the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR § 68.5[b] [emphasis added).
Section 68.5 (b) requires that the insurer pay the "prevailing fee in the geographic location of the provider" only if this State's fee schedule has not established a permissible charge for the health service or has not adopted the type of provider who seeks reimbursement for no-fault benefits. In other words, for any claimed health service, the insurer must look first to the fee schedule in determining the proper reimbursement amount. It is only after the insurer concludes that the fee schedule does not apply that it may look to the "prevailing fee" in the provider's location. The provider's likelihood of receiving the "prevailing fee" is further conditioned upon the insurer's prerogative to re-categorize the particular health service to fit under existing fee schedules. By looking first to the application of a fee schedule, Section 68.5 employs a logical approach in which [*3]the insurer pays a “prevailing fee,” as plaintiff defines that term, only after all possible fee schedule applications have been exhausted.
Both the Insurance Department’s Opinion and Section 68.5 (b)’s formula for applying the “prevailing fee” comport with the policy goals underlying the Legislature’s adoption of a fee schedule. The purpose of a fee schedule is “to significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d 113, 118 [2d Dept 1989] [internal quotations omitted] citing Governor’s Program Bill, 1977 McKinney’s Session Laws of NY, at 2449; Governor’s Memorandum in Support of Assembly Bill 7781—A). Moreover, per Insurance Department regulation, the express purpose of the fee schedule was to “contain the cost of no-fault insurance” (see 11 NYCRR 68.0). Like New York, New Jersey passed similar no-fault legislation as a “cost containment initiative” (see Casinelli v Manglapus, 181 NJ 354, 360, 858 A2d 1113, 1116 ). In furtherance of policy goals akin to New York’s, New Jersey’s Department of Insurance has promulgated a medical fee schedule (see 11 NJSA 11:3-2.9). Thus, the “permissible” charge for health services rendered in New Jersey are limited by the maximum amounts permitted under New Jersey’s fee schedule.
Based on the foregoing, this Court holds that, when services are rendered outside of New York but in a jurisdiction which utilizes a fee schedule, the insurer complies with Section 68.6 by paying the “permissible” charge for that particular medical service, that is, the amount permitted by that jurisdiction’s fee schedule. There being no dispute that defendant issued payment on plaintiff’s claim in accordance with New Jersey’s fee schedule, plaintiff is not entitled to more. Since plaintiff’s action is based entirely on its claim of entitlement to reimbursement in excess of New Jersey’s “permissible” charge, the relief sought in the complaint must be denied and the action dismissed.
Contrary to plaintiff’s position, this Court neither exceeds its “jurisdiction” nor subverts the plain language of Section 68.6 by holding that an insurer complies with Section 68.6 when the reimbursement amount is consistent with another state’s fee schedule. Rather, this Court merely adopts a reading of Section 68.6 that comports with both the Insurance Department’s interpretation of its own regulation, as well as the policy goals underlying New York’s (not to mention, New Jersey’s) No-Fault Law.
Aside from the core objective of “provid[ing] a tightly timed process of claim, disputation and payment” (see LMK Psychological Services, P.C., 12 NY3d at 223), another important goal of the no-fault laws was also to “reduce the burden on the courts” (see Hosp. for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317  [internal quotations omitted]). If this Court were to accept plaintiff’s interpretation of Section 68.6, rather than “reduce the burden on the courts,” similar no-fault disputes would routinely call upon trial courts to conduct evidentiary hearings on local billing practices to determine the “prevailing fee” in a neighboring location notwithstanding the fact that such a jurisdiction has already established its own legally permissible fee. Such a situation would undoubtedly subvert the No Fault Law’s core objective of creating a speedy process of claim, dispute resolution, and, ultimately, payment.
Equally important, the goals of consistency and fairness are undermined when injured parties, or their provider-assignees, can be reimbursed for the same health services at different rates [*4]from those permitted under either New York’s or even another state’s fee schedule simply because the services were rendered outside of New York but are to be paid in this State. Plaintiff’s proposed reimbursement scheme would only frustrate the purposes of both jurisdictions’ no fault laws because providers would be incentivized to treat New York patients in other jurisdictions hoping to receive more for performing the same health service outside of New York’s borders.
Karina K. Acupuncture P.C. v State-Wide Ins. Co., 2014 NY Slip Op 51518(U)(App. Term 1st Dept. 2014)
“The affidavits and other documentary evidence submitted by defendant established prima facie that defendant timely denied that portion of plaintiff’s first-party no-fault claim seeking payment of $1,182.53 – stemming from acupuncture services rendered by plaintiff during the period October 1, 2009 through October 21, 2009 – on the ground that the fees plaintiff charged exceeded the amount permitted by the applicable workers’ compensation fee schedule (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 Ge. 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 denial form issued in connection with this claim or the calculation of the fee.”
Note how in less than one year, this Court moved away from the original language in Akita :”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” and has now moved towards the following language: “In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial form issued in connection with this claim or the calculation of the fee.”
(what a difference a year makes)
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?
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)
Epic Pain Mgt. & Anesthesia Consultants, LLC v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51391(U)(App. Term 1st Dept. 2014)
“Defendant’s moving submission below relied exclusively on a worker’s compensation fee schedule defense, and failed to address, much less refute the applicability of Insurance Department regulation (11 NYCRR) § 68.6, which provides that where, as here, a reimbursable health service “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider.” Notably absent from defendant’s moving papers was any discussion of the proper “geographic location” of the plaintiff provider — which apparently maintains offices in both New York and New Jersey — or of the “prevailing fee” were such location determined to be in New Jersey”
What is the “prevailing fee”? Is it the New Jersey fee schedule or something else? Unsure. I think Nassau Anesthesia Assoc. P.C. v Chin, 32 Misc.3d 282 (Dis. Ct. Nassau Co. 2011) is relevant on this point: “To the contrary, as recognized in Temple Univ. Hosp., Inc. v Healthcare Mgt. Alternatives, Inc. (832 A2d 501 [Pa Super Ct 2003]), the amounts “actually received” by medical providers from insurers are a far better indicator of the reasonable value of a provider’s services than the “full published charged” unilaterally set by the provider. (832 A2d at 508-510.)”
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.