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Archive for the ‘Fee Schedule’ Category

In Giugliano v. Merchants, I discussed the Civil Court’s decision as it relates to the proper reimbursement for services that a chiropractor who performs MUA may charge.  I quoted a letter that the general counsel for the workers compensation board wrote on the topic.  Through a successful FOIL request, I am attaching the Munnelly letter.  I hope you find it useful.  MUA services

A Civil Court in a published decision rebuked an ill-fated, ill-conceived and senseless challenge to the proposition that a chiropractor may perform and bill for MUA services.

John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 2010 NY Slip Op 20308 (Civ. Ct. Kings Co. 2010)

While I might have my own personal misgivings about the MUA procedure and how it is being performed in the no-fault world, a chiropractor may bill for it.  I can discuss here how some of the MUA procedures I see being done should be reported to the Department of Education or OPM.  Yet, that is not the purpose of this discussion.

The reason why the defense practitioner in this case was way off the mark in defending this matter, is based upon an opinion letter, dated 8/14/09 from the general counsel of the Workers’ Compensation Board, Kenneth J. Munnelly, which says this:

“For example, if an appropriately trained chiropractor performs MUA, then that chiropractor can bill under the pertinent codes.  The CPT Codes most commonly billed under are 22505 and 27275. The relative value unit (RVU) is established for such CPT codes by the official medical fee schedule and remains constant whether a medical doctor, osteopathic doctor or chiropractor bills for that service using that code. The reimbursement rate, however, differs based upon the conversion factor assigned to the type of provider. The comparison of conversion factors that an osteopathic doctor would bill versus the factor under which a chiropractor would bill indicates that the chiropractor should be billing and get paid at 68.4% of the allowable conversion factor for the medical and osteopathic doctors performing the same procedure.”

You can find this letter in various arbitration decisions, e.g., AAA # 412010007480.  I am still looking for a copy of the actual letter.

We can all agree, I think, that an opinion letter from the agency that is in charge of the fee schedule, which says that a chiropractor may bill for MUA services, ends the debate.

But I also have similar misgivings about why Plaintiff did not make a summary judgment motion, or even bothered calling a rebuttal witness at the trial in this matter.  The facts of this case did not present any factual issues; it involved an issue of law that was properly decided adversely to the insurance carrier.

I mean if an insurance carrier -justifably- can waive an opinion letter and create Fogel and Great Wall, then why is this any different?  The shoe was on the other foot in this case.  It happens.

h/t to Damin Toell (who really needs to update his blog already) and many thanks to DG for publishing this at NFP.  Acupuncture is now going to be deemed to be payable at the MD or DO rate.

Where was the DOI when “Power Acupuncture” represented the law, and the carriers were getting socked for $100 acupuncture visits, notwithstanding the DOI’s proclamation that acupuncture was only payable at the chiro rate?  As an aside, it looks Judge Gonzalez in Great Wall Acupuncture v. GMAC, 6/15/2007 NYLJ 22, (col. 3)(Civ. Ct. Bronx Co. 2007) called this one three years ago.

While it is unfortunate that the carriers will be paying more for these acupuncture visits, the good news is that my summary judgment motions will  consume about 40 less pieces of paper, since a definitive fee schedule will have been established.

Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 2010 NY Slip Op 51177(U)(App. Term 2d Dept. 2010)

It gets to the point where enough is enough.  The Appellate Term, Second Department, has repeatedly held that acupuncture services are reimbursable, as a matter of law, at the chiropractor rate.  The Court in the case stated the following:

“This court has held, “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” (Great Wall Acupuncture, P.C. v Geico Ins. Co, 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant paid plaintiff based upon the workers’ compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, we decline to disturb so much of the order as granted defendant summary judgment dismissing plaintiff’s complaint with respect to those claims.”

What is somewhat new is that the Appellate Term has held that the “it is not compensable” defense for failing to pay an initial acupuncture visit shares the same level of validity as the “it is included in the comprehensive visit” defense for failing to pay for computerized range of motion.  For those of you who do not get this sardonic humor, it is sufficient to say that there is no validity to this statement.

First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 2010 NY Slip Op 50594(U)(App. Term 2d Dept. 2010)

“Defendant also established that it had timely denied the two $182.84 and three $523.20 claims on the ground that the services for which payment was sought were part of another service and, thus, were not separately reimbursable (see St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 26 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]), and defendant’s opposition papers were sufficient to raise a triable issue of fact with respect thereto. Consequently, neither party was entitled to summary judgment on the first, seventh and eighth causes of action, as well as so much of the third cause of action as sought to recover upon the $523.20 claim.”

I have posted on this issue previously.  Again, I do not generally believe that the range of motion testing is included in the office visit as the insurance carrier has been arguing in these cases.

St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 2010 NY Slip Op 50488(U)(App. Term 2d Dept. 2010)

1. Fee Schedule

“While defendant argues that the Civil Court improperly awarded plaintiff summary judgment as to its seventh cause of action since defendant timely denied that bill on the ground that the fees charged were excessive and not in accordance with the Workers’ Compensation fee schedule, defendant did not annex any proof to establish said defense. Consequently, defendant failed to establish the existence of an issue of fact with respect to this cause of action.”

This is probably regarding a global denial based upon range of motion testing being considered part of the initial visit.  I do not know this for sure, but this seems to be a common theme between these parties and the attorneys representing them.  Today, the Appellate Term properly held that an issue of fact was not raised.  On some days, they hold a triable issue of fact is raised when similar proof is presented.  On other days, they hold similar to that of this case.

2. Appeals from interlocutory judgments

“Defendant also argues that the Civil Court improperly denied its cross motion for summary judgment as to plaintiff’s tenth cause of action because plaintiff failed to rebut defendant’s prima facie showing of lack of medical necessity as to this cause of action. However, since defendant did not appeal from the underlying order and the appeal from the judgment does not bring up for review so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s tenth cause of action, said part of the order is not before us on appeal.”

It took me a bit to figure this out.  A final judgment always brings up for review the underlying non-appealed interlocutory orders.  In this case, an interlocutory judgment was issued, since the judgment did not encompass the entire action.  Rather, it encompassed everything except the medical necessity cause of action.  Therefore, absent an appeal of the order denying summary judgment, Defendant can only appeal from the final judgment.  The final judgment would occur following the trial.  At that point, an appeal of the final judgment would bring up for review the order denying summary judgment.

Do you understand?

St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 2010 NY Slip Op 50444(U)(App. Term 2d Dept. 2010)

“Defendant also established that it had timely denied the two $365.68 claims (plaintiff’s fourth and seventh causes of action) on the ground that the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Consequently, defendant raised a triable issue of fact with respect to the fourth and seventh causes of action (see St. Vincent’s Med. Care, P.C. v Country-Wide Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op 29508 [App Term, 2d, 11th & 13th Jud Dists 2009]).”

Compare, First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 2010 NY Slip Op 50149(U)(App. Term 2d Dept. 2010), which I discussed here.

Same facts, yet different result than that found in First Aid Occupational Therapy, PLLC.

Range of Motion (ROM) and Manual muscle (MM) testing are compensable services, and the argument raised in the above cases lacks merit.  What you must understand, however, is that MM is limited to being billed as one unit at either CPT Code 95833 or CPT Code 95844.  It cannot be billed at 95831 * each body part.  ROM is per body section, and can be billed numerous times, subject to other collateral issues that are out there.  You can contact me if you want my other thoughts.

First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 2010 NY Slip Op 50149(U)(App. Term 2d Dept. 2010)

Unbundling.  I love this word.  I discussed this issue in a previous post.  Click here for that post.  The only difference between the previous case and this case is that the penalty for failing to proffer an expert affidavit (assuming you can find an expert who would support the unbundling theory in this case) is succumbing to a plaintiff’s summary judgment motion.  The relevant portions of the case are as follows:

“While defendant denied the claims underlying plaintiff’s first and fifth causes of action on the ground that plaintiff sought to recover in excess of the fee schedule by ” unbundling’ the service[s] into . . . separate bill[s]” even though such services “are considered part of the initial medical evaluation,” defendant did not submit an affidavit from someone with sufficient expertise to establish that ground as a matter of law or even to demonstrate the existence of a triable issue of fact with respect to the billing for such services (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]). As a result, defendant “failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of [plaintiff] on the [first and fifth] cause[s] of action” (Kingsbrook Jewish Med. Ctr., 61 AD3d at 23).”

Finally, the case involved a premature additional verification request where plaintiff was granted summary judgment.  This was reversed.

“It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).”

St. Vincent Med. Care, P.C. v Country-Wide Ins. Co. 2009 NY Slip Op 29508 (App. Term 2d Dept. 2009)

This case is more notable for the fact that it was decided prior to, yet published after “Infinity v. Eveready”, as well as Justice Golia’s scathing dissent regarding many of the same concerns that the Court of Appeals discussed 6 years ago in “Medical Society v. Serio.”

The issue that I am writing about is something that I am sure nobody noticed.  It involved the defendant’s failure to prima facie prove its fee schedule defense.  The court said the following:

“In opposition, defendant argued that it timely denied plaintiff’s claim seeking to recover the sum of $228.55 for services rendered on February 22, 2006 on the ground that the fee sought was in excess of the amount permitted by the workers’ compensation fee schedule because the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Defendant established that it timely denied this claim”

It appears that the insurance carrier denied either muscle testing or range of motion testing based upon the worker’s compensation ground rule that prohibits compensation for certain services that are performed when an initial or follow-up evaluation is performed and paid.  While many do not know this fact, this was the fee schedule issue that was presented in Rogy Medical, P.C. v. Mercury Ins. Co., 2009 NY Slip Op 50732(U)(App. Term 2d Dept. 2009), and it did not succeed.

The matter of Great Wall Acupuncture, P.C. v Geico Ins. Co. 2009 NY Slip Op 29467 (App. Term 2d Dept. 2009) was an interesting opinion involving acupuncture fee schedule cases.  This case completes the equation as to what is necessary for an insurance carrier that pays the chiropractor rate for acupuncture to prevail at trial.  Upon showing that acupuncture services were paid at the chiropractor rate, a prima facie defense as a matter of law has been satisfied.

Thus, as long as the pertinent portions of the fee schedule and a timely denial are in evidence, a defense verdict should be granted.  There is nothing that a plaintiff can do to rebut this prima facie showing.

Here are the pertinent portions of the opinion with some relevant observations.

“At trial, the parties stipulated to plaintiff’s prima facie case and further agreed that defendant had timely denied the unpaid portion of the claim on the ground that the charges for acupuncture treatments exceeded the maximum fees under the appropriate
fee schedule. Additionally, pursuant to the parties’ stipulation, the claim form and the denial of claim form were admitted into evidence”

• This portion of the opinion discusses the evidence that  in the Appellate Term’s opinion was sufficient to make a prima facie demonstration that the acupuncture services were billed in excess of the chiropractor fee schedule.

“A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license (see 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]).”

• Here, the Appellate Term outlined the comparative licensure requirements between a licensed acupuncturist and a chiropractor licensed to practice acupuncture.  I would just note that Judge Gonzalez in Great Wall Acupuncture v. GMAC, 6/15/2007 N.Y.L.J. 22, (col. 3)(Civ. Ct. Bronx Co. 2007) engaged in a similar analysis, and came to a somewhat differing conclusion.
  

“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”

• All the insurance carrier needs to show is that the services were paid at the chiropractor acupuncture rate and a directed verdict in favor of an insurance carrier must be granted.

Hopefully, we will never see the words reasonable geographic value, or some variant of this phrase, ever again.