Court approves the chiro rate for Evaluation codes and consultation codes

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 51460(U)(App. Term 2d Dept. 2017)

“By order entered September 3, 2014, the Civil Court granted plaintiff’s motion to the extent of awarding it $54.74 on its $80 claim for a service billed under CPT code 99203, based upon a workers’ compensation fee schedule reduction, denied the remainder of plaintiff’s motion, and granted the branches of defendant’s cross motion seeking to dismiss the remainder of the complaint, which sought to recover for services billed under CPT codes 97810 and 97811, and so much of the complaint as sought to recover the additional $25.26 on the claim for a service billed under CPT code 99203. Plaintiff appeals, arguing that its motion should have been granted in its entirety and that defendant’s cross motion should have been denied in its entirety.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its cross [*2]motion was sufficient to give rise to a presumption that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97810 and 97811 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 Dept, 2d, 11th & 13th Jud Dists 2009]).”

In this case, State Farm did not pay the consultation or evaluation codes.  They were denied as out of scope.  The motion for summary judgment conceded the chiropractor rates.  Civil Court granted judgment as to those rates.  The Appellate Term found this type of after the fact determination was proper.

By-Report

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2017 NY Slip Op 51452(U)(App. Term 2d Dept. 2017)

“It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not [*2]provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The record demonstrates that defendant received the claim form and that, with respect to the services at issue, its denial of the claim was based upon a failure to provide documentation. Plaintiff correctly argues that, because defendant never requested such documentation, defendant’s denial of claim form is without merit as a matter of law. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 should have been denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint should have been granted (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

It is hard not to have seen this result coming.  But it should be made clear that the failure to seek verification does not end the inquiry.  Assuming, as is usually the case, that verification is not sought, an expert review is necessary to determine the compensability, if any, of the service.  Similar to the failure to seek verification when the defense is lack of medical necessity, the provider can argue that the review is based upon an inadequate factual basis.

A new 68.6 is coming next year

Rationality has finally reached us with the crazy New Jersey situation.   This will be published tomorrow and will be effect 1/8/18.

Over billing beware.

This regulation should have come out years ago.  I am grateful that it finally has been approved.  Now, CPM and other rental items need to be addressed, as that loop hole remains open.

 

Repriced CPT Code 64550

Compas Med., P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51228(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s further argument, defendant’s proof was sufficient to demonstrate, prima facie, that defendant had fully paid for the services charged under code 64550 of the workers’ compensation fee schedule”

I am sure the carrier repriced 64550 to 97014.  The Court held, with an affidavit, the repricing was proper.

Acupuncture that is broken down by code

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51252(U)(App. Term 2d Dept. 2017)

(1)”In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811, and to compel disclosure.”

(2) ” However, 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”

(3) “Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged”

I notice a trend with these decisions, where the Courts on the acupuncture cases are breaking down the cases “code by code”.  It is a testament to the reality that acupuncture cases, except for the 810, 811, 813 and 814 involve frequently litigated issues where a bright line rule has not been set down.

It also interesting how what I perceive to intrusive discovery tends to be granted even though I suspect an offer of proof as to the issues upon which discovery is sought has not been set forth.

CPT Code 970309

Acupuncture Approach, P.C. v Tri State Consumer Ins. Co., 2017 NY Slip Op 51170(U)(App. Term 1st Dept. 2017)

The long-failed out of scope defense, well has long-failed.  Again, it failed.  Common theme?

“Triable issues of fact are raised as to whether defendant-insurer properly denied plaintiff’s no-fault claim billed under CPT code 97039, thus precluding summary judgment dismissing this claim. Defendant’s submissions failed to establish prima facie its contention that the service is not reimbursable because it is a “physical medicine modality” and “outside the provider’s specialty”

No acupuncture fee schedule estoppel

Culex Acupuncture, P.C. v 21st Century Indem. Ins. Co., 2017 NY Slip Op 51145(U)(App. Term 2d Dept. 2017)

“Plaintiff’s sole argument on appeal, that the aforesaid branches of defendant’s motion [*2]should have been denied because defendant, without explanation, had paid the claims at issue at the rate for acupuncture services performed by a chiropractor, but paid other claims at the rate for acupuncture services performed by a medical doctor, is without merit (see Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51710[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012])”

Again, the court has held that all an L.AC is entitled to is the chiropractor fee schedule, regardless of what it bills.  Prior payment at the MD rate does not create an estoppel.

C.f. 20553

Renelique v Allstate Ins. Co., 2017 NY Slip Op 51141(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s argument, defendant demonstrated that it had properly applied the workers’ compensation fee schedule to calculate the amount due for services billed under CPT code 20553, and plaintiff failed to rebut defendant’s showing (cf. Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

I am unsure if this is pre or post FS amendment to code 20553.  The c.f. citation is interesting, if it is presupposes that the older version of 20553 required manipulation to achieve the desired result.

Functional ATIC/ medial necessity and fee schedule defense susbstantiated

Jaga Med. Servs., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50954(U)(App. Term 2d Dept. 2017)

(1) “In opposition to those branches of defendant’s cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”

(2) “Contrary to plaintiff’s contention, the affidavit executed by defendant’s expert professional coder, submitted in support of the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fifth causes of action, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in these causes of action (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).”

Interesting observation from the motion papers.

(1) Peer review involved EMG/NCV: The opposition affidavit did not seem bad.   While it said a lot, however, it was totally not responsive to the peer report.

(2) Expert analysis involved ROM and MMT: Payable  per extremity and trunk.   The review again recommended less than what was actually paid.  There was no fee schedule opposition.

Back when ATIC had a functional litigation defense strategy

Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50946(U)(App. Term 2d Dept. 2017)

I had to look through my archives to see what happened here.    The verification defense was not addressed nor was the fee schedule defense addressed in the main motions.  The defense was suppoted by affidavit and stated the following:

“The basis of the denial is that the billing was in excess of the applicable fee schedule. A provider who administers Muscle Testing (CPT Code 95831) and Range of Motion services (CPT Code 95851), like all other services, must abide by the fee schedule.  Plaintiff billed in excess and Defendant is entitled to summary judgment to the extent that the bills were in excess of the fee schedule. ”

“A subsequent fee schedule review was performed by Defendant’s expert coder based upon Plaintiff’s billing, medical records, and supporting documentation. Defendant’s expert review determined that the manual muscle testing codes may not be unbundled.  When multiple extremities of muscle testing are performed, compensation is limited to the appropriate bundled code, i.e. CPT Code 95833 (testing, total evaluation without hands), rather than Plaintiff billing multiple times for CPT Code 95851. CPT Code 95833 has a relative value of “13.53” and when it is multiplied by the conversion factor in region IV (where services were performed) “8.45”, this yields the appropriate total fee schedule amount of $114.33.”

“Plaintiff also billed for range of motion testing: CPT Code 95851. As per the Worker’s Compensation fee schedule, compensation is limited to each extremity or each trunk section that is tested.  CPT Code 95851 has a relative value of “5.41” and when it is multiplied by the conversion factor in region IV (where services were performed) “8.45”, this yields a fee schedule amount of $45.71 per extremity or trunk section of the spine. Defendant’s coding expert opined that this should be remitted only once per area tested.”

A coding affidavit corroborated these facts and averred that Plaintiff was overpaid.