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.

 

 

Hearsay insufficient to substantiate a fraud defense/Fee Schedule discussion

Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co.,2017 NY Slip Op 50945(U)(App. Term 2d Dept. 2017)

Fee Schedule: Box #18

(1) “Contrary to plaintiff’s contention, the denial of claim forms were sufficient to advise plaintiff that defendant was partially denying plaintiff’s claims on the ground that the amount plaintiff sought to recover was not in accordance with the workers’ compensation fee schedule. Indeed, a checked box on the forms indicated that benefits were denied because the fees were not in accordance with the fee schedule (see 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]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

Lack of coverage

(2) “To the extent defendant seeks summary judgment dismissing these claims on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

(Infinity involved an SIU affidavit relying in large part on an inadmissible police report)

New fee schedule for the New Jersey problem thankfully is coming soon

Amendments for services rendered  or of NY

(Page 30 of the pdf)

The application of the New Jersey fee schedule has been a complete scourge on the no-fault system.  As I have said repeatedly, when a problem becomes redundant and problematic, DFS will after a 3-4 year period address the issue through regulatory amendment.  $20,000 arthroscopes in New Jersey fit this definition.  It appears this will take in effect in November.

In essence, a surgeon can bill can no greater than Region IV or the New Jersey ASC.  A  facility will only be able to bill the lower of the most expensive EAPG rate (used to be PAS) or the New Jersey ASC for services.  Exceptions are made for emergency care and a person who resides in New Jersey – not bused from Bronx to Saddlebrook, Jersey City or Englewood Cliffs by Square Circle Synagogue Transportation (the old timers will get this reference).

This regulation of course deals with all services rendered outside of NY; I stress New Jersey because that was the impetus behind the regulation.

FYI – The newer issue we are now seeing is the application of the 20999 BR surgery code since surgeons do not want to be subject to the 50% multiple procedure reduction or the true RVUs of the procedure that is billed.  This can triple a surgeon’s bill.  One problems solved, one problem created.