Was it fraudulent billing? October 8, 2021


Similar to the 2012 NY regulatory changes, the Florida law prohibits billings for services not rendered. See FSA 627.736(5)(b)1.c.. The statute, when triggered, applies to all billings. The NY regulation only seems to apply to services that were billed but not provided.

Here are the facts: ” Dr. Canizares testified that he did not have personal knowledge of the treatments, but that
based on his review of the records, it appeared that two units of Current Procedural Terminology (“CPT”) code 97110 were mistakenly billed at $90.00 each instead of one unit of CPT code 97110 at $90.00 and one unit of CPT code 97112 at $95.00. Dr. Canizares attested that two units of code 97110 were billed, although only one unit was performed on the date of treatment, and that there was no entry for code 97112 although one unit was performed on that date”

The question is whether the provider’s using 97110 twice as opposed to CPT 97110 and 97112 was the prescribed conduct that triggered the bill wipe out provsion of FSA

“We conclude the trial court improvidently granted summary judgment because there remained a genuine issue of material fact as to the manner and method in which the billing error occurred, particularly whether CEDA Health knowingly submitted the erroneous billing. State Farm did not submit any evidence to rebut Dr. Canizares’s testimony that the error was a mistake, nor did it submit any evidence demonstrating whether CEDA Health had actual knowledge of the information, acted in deliberate ignorance of the truth or falsity of the information or acted in reckless disregard of the information. Nonetheless, the trial court decided this key question of fact at the summary
judgment stage apparently concluding the negligent one-time billing error satisfied the statutory threshold. The Legislature has expressly defined the term “knowingly” with respect to insurance rates and contracts requiring that
a person “has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the information.” § 627.732(10), Fla. Stat. Negligence, which is commonly defined as the failure to use reasonable care, is not the standard. As such, the trial court’s finding of negligence was not sufficient to resolve this issue of fact regarding whether CEDA Health knew of the
erroneous billing information.”

I see a $100,000 attorney fee for CEDA on this case.

MPPR reductions October 7, 2021


Leave it to Progressive. Nobody else in Florida PIP reduces chiropractor bills based upon the concept of MPPR. You know why? It is simple. Medicare does not pay for chiropractor services. Therefore, how do you legislate a payment methodology pursuant to the Medicare fee schedule for a service that Medicare does not recognize? The 4th DCA found a way, of course.

“We therefore conclude that section 627.736(5)(a)3.’s plain language authorizes utilization of MPPR to limit PIP reimbursement for therapy services provided by a licensed chiropractor even though reimbursement to a chiropractor for those same services would not be provided at all under Medicare. Because the trial court concluded otherwise, we reverse the final summary judgment entered in the provider’s favor and remand with instructions for the trial court to enter final summary judgment in favor of the insurer consistent with this opinion”

Time period September 14, 2021

Matter of Miller v Annucci, 2021 NY Slip Op 04954 (2021)

(1) “CPLR 5515 (1) provides that an appeal is taken when, in addition to being duly served, the notice of appeal is “fil[ed] . . . in the office where the judgment or order of the court of original instance is entered.” The CPLR further clarifies that “papers required to be filed shall be filed with the clerk of the court in which the action is triable” (CPLR 2102 [a]). Thus, by its express terms, the CPLR indicates that filing occurs when the clerk’s office receives the notice of appeal. Indeed, “filing” has long been understood to occur only upon actual receipt by the appropriate court clerk (see Matter of Grant v Senkowski, 95 NY2d 605, 608-609 [2001]; see also Sweeney v City of New York, 225 NY 271, 275 [1919]). A “mailbox rule” for filing would also contravene the clear distinctions between filing and service drawn by the legislature inasmuch as the CPLR directs that, unlike filing, “service by mail shall be complete upon mailing” (CPLR 2103 [b] [2]). We are not free to disregard the statutory text defining when filing and service occurs, or to otherwise endorse an exception to the relevant CPLR provisions that has not been adopted by the legislature (see Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013]; Matter of Grant, 95 NY2d at 608-610).”

(2) “Petitioner’s reliance on Houston v Lack (487 US 266, 268 [1988])—where the Supreme Court of the United States deemed a pro se prisoner’s notice of appeal to be filed within the meaning of the Federal Rules of Appellate Procedure when delivered to prison officials—is misplaced. As we have explained, the Supreme Court’s authority to interpret the Federal Rules—promulgated and adopted by the Court itself—”exceeds our authority in interpreting the CPLR, which consists of statutory provisions that we are constrained to interpret so as to give effect to the will of the Legislature” and, here, “the Legislature’s intent to treat” a notice of appeal “as ‘filed’ upon the actual receipt of those papers by the clerk of the court—rather than upon delivery to prison authorities for forwarding to the court—is manifest from the statute’s language and purpose” (Matter of Grant, 95 NY2d at 608).”

(3) Nonetheless, as respondent points out, the legislature has given courts the authority to excuse untimely filing under certain circumstances. CPLR 5520 provides that, “[i]f an appellant either serves or files a timely notice of appeal . . . , but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken . . . may grant an extension of time for curing the omission” (CPLR 5520 [a]). Here, the basis of the Appellate Division order of dismissal is unclear. While we can determine that the filing was untimely as a matter of law, we cannot discern whether the Appellate Division dismissed based on untimely filing alone, whether the court determined if timely service was established, and—if so—whether the court considered that it could exercise discretion to excuse the untimely filing under CPLR 5520. Accordingly, we reverse and remit for further proceedings (see M Entertainment, Inc. v Leydier, 13 NY3d 827, 829 [2009]).”


Why did I publish this? It is interesting from the standpoint that the CPLR is a roadblock that Courts cannot surpass, as opposed to the Fed. R. Civ. Pro or the other states out there that utilize court rules to address disputes.

80% of 200% of Medicare September 11, 2021


GEICO, regardless of where they do business, always has their own view of the law. Here, the provider submitted a bill less than the fee schedule. GEICO decided to pay it at 80% of the billed amount. The rule in Fla is that the floor is the lesser of the bill or 80% of 200% of the FS. Simple issue but now GEICO has a $100,000 attorney fee bill to pay on this I am sure.

“We hold that when an insurer chooses to reimburse according to scheduled rates, it must pay 80 percent of 200 percent of the statutorily adopted applicable fee schedule.1 There is nothing in the statutory scheme that permits a PIP insurer to limit reimbursements to 80 percent of the billed amount.”

The case is interesting because it construes certiori (which was granted) and then constures the new post 2021 plenary jurisdiction that the District Courts of Appeal have over County Court matter. Procedural fans will love the case; statutory textualists will ask what the heck GEICO was doing. Common sense always ask when you are looking at 6 figure attorney fee awards on a $10k policy, why fight some of these issues?

A resubmission does not restart the pay or deny clock September 11, 2021

A.C. Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2021 NY Slip Op 50841(U)(App. Term 2d Dept. 2021)

” Plaintiff claimed, in the papers submitted in support of its amended cross motion, that, in March]2017, it had submitted two bills dated March 29, 2017 to defendant, for services rendered to Mr. Bailey on November 18, 2016, in the total amount of $2,785.16. The sole explanation for the submission of what plaintiff characterized as “amended bills” was a sworn statement by plaintiff’s medical billing supervisor that she “was made aware that the defendant was addressing bills with the incorrect amount and requesting verification for services that were mistakenly added to the bill.”

“Plaintiff has not raised an issue of fact precluding summary judgment dismissing the complaint on the ground that the action is premature. Whereas this action was commenced to recover the principal sum of $3,268.16 (the amount sought in the November bills), plaintiff has now elected not to pursue payment for the $483 electromyography services that were the subject of the outstanding verification requests, but it cannot retroactively create an obligation for defendant to have paid or denied the remaining claims totaling $2,785.16, thereby providing a basis for this action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]; Westchester Med. Ctr. v A Cent. Ins. Co., 42 Misc 3d 146[A], 2014 NY Slip Op [*3]50347[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). Under the circumstances presented, the submission of the March 2017 bills did not create a new obligation for defendant to pay or deny plaintiff’s duplicate claims for the remaining services, totaling $2,785.16, within 30 days, nor did it give defendant a new opportunity to request additional verification with respect to those service”

The lesson here – an issue not seen since 2014 – is that the provider does not get a do over and cannot seek any redress from regenerated billings.