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.
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.