This is from the Vice President of James Skelton, Esq., from AAA today (4-23-18) – It is for everybody’s edification:
Dear Jason – The Workers’ Compensation Board has recently advised the Department that the following email regarding PT rules is not the Board’s official position. If you have any questions, please contact Chris Maloney at firstname.lastname@example.org or (212) 480-5586.
Supervising Insurance Examiner
Property Bureau – Claims Administration Unit
New York State Department of Financial Services
One State Street Plaza, 6th floor, New York, NY 10004+1511
Ph: (212) 480-5586 | Fax: (212) 709-1570 | email@example.com
From: MacMaster, Heather (WCB)
Sent: Tuesday, January 30, 2018 3:59 PM
To: Maloney, Chris (DFS) <Chris.Maloney@dfs.ny.gov>
Cc: Woods, MaryBeth (WCB) <MaryBeth.Woods@wcb.ny.gov>; Smith, Steven (WCB) <Steven.Smith@wcb.ny.gov>
Subject: Fee Schedule: PT rules
Here is the PT information from our MDO.
The 8 RVU limitation is per patient per day regardless of how many body parts are treated or how many practitioners treat. The only exception is with chiro and PT. If a chiro renders manipulation only (98940-98943) and does not bill any of the other physical medicine codes, the injured worker could receive chiro and PT on the same day. This scenario is usually performed by a chiro who is affiliated with the Chiropractic Council. They only perform manipulation.
The physical medicine codes that are impacted by the 8 RVU limitation are in the chiro physical medicine fee schedule but the codes for spinal manipulation are not in the general physical medicine fee schedule.
Deputy General Counsel
NYS Workers’ Compensation Board
328 State Street, Schenectady, NY 12305
(518) 486-9564 | firstname.lastname@example.org
Confidentiality Notice: All contents of this message, including any attachments, may be confidential and/or legally privileged. Contents are intended for the recipient only. Any other use, dissemination or disclosure is unauthorized. If you are not the intended recipient, please notify the sender and delete the message and any attachments immediately.
American Arbitration Association
32 Old Slip, 33rd Floor, New York, NY 10005
T: 917 438 1562
Our office has moved. The new address is 32 Old Slip, 33rd fl, New York, NY 10005
The information in this transmittal (including attachments, if any) is privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this transmittal is prohibited except by or on behalf of the intended recipient. If you have received this transmittal in error, please notify me immediately by reply email and destroy all copies of the transmittal. Thank you.
You asked for it. Here it is. Riveting reading.
First, I must give a hat tip to an unnamed source at DFS who (1) Reads my blog; (2) Listens to me lament about certain court decisions; and (3) Has been very helpful about addressing the no-fault issues that I feel are unjust. Since this person probably does not want his/her name published, I will decline to do same.
This comes from Arbitrator Gewurz in the case of 21st Physical v. Geico (17-16-1037-6496)
To summarize: the 8 PT units can be split between specialties – but never more than 8 per day. CMT codes do not count to a non-chiro’s 8 unit allowance.
“Recently, however, the NYS Workers’ Compensation Board clarified the “8 unit rule.” In email correspondence from Heather MacMaster, Deputy General Counsel for the NYS Workers’ Compensation Board, to Chris Maloney at the Department of Financial Services, dated 01/30/18, it was explained that “[t]he 8 RVU limitation is per patient per day regardless of how many body parts are treated or how many practitioners treat. The only exception is with chiro and PT. If a chiro renders manipulation only (98940-98943) and does not bill any of the other physical medicine codes, the injured worker could receive chiro and PT on the same day. This scenario is usually performed by a chiro who is affiliated with the Chiropractic Council. They only perform manipulation. The physical medicine codes that are impacted by the 8 RVU limitation are in the chiro physical medicine fee schedule but the codes for spinal manipulation are not in the general physical medicine fee schedule.”
The WCB guidance is mostly consistent with this Arbitrator’s prior interpretation. Eight units are eight units unless treatment is rendered by a medical doctor/physical therapist/occupational therapist and chiropractor on the same day. In that circumstance, the chiropractor may be reimbursed a maximum of 8 units of spinal manipulation (CPT codes 98940-98943) even when a medical doctor/physical therapist/occupational therapist has already been reimbursed 8 units. Here, the Respondent received claims from Hills Chiropractic PC for the same dates of service as the Applicant. Hills submitted claims for reimbursement of three CPT codes: 98940, 97112, and 97140. Per date of service, the Respondent reimbursed Hills for 8 units and said units were directed towards CPT codes 98940 and 97140. Code 98940 was reimbursed in full and received 4.57 units while 97140 was partially reimbursed and received 3.43. No reimbursement was provided for CPT code 97112. The balances were denied based on the “8 unit rule.” Thereafter, the Respondent partially reimbursed the Applicant for its billed-for physical medicine modalities rendered on the same dates of service and denied the balances for the same reason as the balance of 8 units was paid to Hills. A total of 4.57 relative value units for self-employed physical therapists were reimbursed per date of service. Under the WCB’s recent guidance, the Respondent engaged in a legally valid distribution of 8 units of physical medicine modalities excluding chiropractic spinal manipulation between the two providers.”
If you have questions, you can write me, retain me or call me 🙂
Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 2018 NY Slip Op 50095(U)(App. Term 2d Dept. 2018)
“Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff’s claims.”
“As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for  claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 [g]  [ii]; ).”
This is what I take from this case. First, an untimely denial is not fatal to a defendant’s fee schedule defense. Second, a late payment in full (where there is a fee schedule defense) will not require interest payment provided there was an overbilling. And again, a certified coding affidavit will knock out the modality billing if properly paid in the first instance (I assuming there is modality billing here)
Precious Acupuncture Care, P.C. v Hereford Ins. Co., 2018 NY Slip Op 50042(U)(App. Term 2d Dept. 2018)
” Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff sought to recover amounts which were in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule”
Workers compensation fee schedule defense is satisfied through the affidavit of a certified medical coder.
Advanced Recovery Equip. & Supplies, LLC v Maya Assur. Co., 2018 NY Slip Op 50022(U)(App. Term 2d Dept. 2018)
The CPM story has been a terrific coup for the medical providers. The American Arbitration Association has consistently ruled in favor of the medical providers. The Courts have generally confirmed arbitration awards. A Civil Court has now taken the AAA position. All that is now left is to see what the Appellate Courts will do.
This is one area where I think both DFS and WCB have dropped the ball. Reimbursement rates have once again declined for surgeries and associated providers through regulation. Yet, this piece of the surgery puzzle now has a larger price tag attached to it than the facility fee and the surgery fee.
Eventually, the regulators will do something…
Bronx Acupuncture Therapy, P.C., as asignee of Mejia v Hereford Ins. Co., 2017 NY Slip Op 79291(U)(2d Dept. 2017)
This came out on July, 2017. The Court granted Hereford leave to argue that the failure to satisfy the “BR code” requirements of the fee schedule is fatal to a medical provider’s prima facie case. I am unsure if I agree since the Courts in New York consider all fee schedule issues “defenses”. My next thought is to state that the disclaimer based upon “BR” is sufficient to ultimately force a plaintiff to prove compliance with the rule. The theory for this comes from the “standing” jurisdiction in mortgage foreclosure cases. Pleading this as an affirmative defense – or in NF parlance through a disclaimer – requires an additional element of proof as part of the PF case – in this case compliance with the BR rule. But do I think my above theory is meritorious? Probably not.
If the Courts absent regulatory fiat will authorize billings short of provider fraud where a timely disclaimer is not issued, why should this be different.
Don’t get me wrong – I appreciate Hereford’s position. But after Amaze v. Eagle and Mary Immaculate Allstate (15 and 14 years ago, respectively), these are battles that bare no fruit.
Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51808(U)(App. Term 2d Dept. 2017)
“Plaintiff properly argues on appeal that defendant failed to establish, as a matter of law, its defense that the fees charged with respect to the services billed under codes CPT 97010, 97110 and 97124 exceeded the amounts set forth in the workers’ compensation fee schedule therefor (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate. Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for those services should have been denied.”
Again, the Court has not been favorable of adjudicating these types of disputes as a matter of law.
Acuhealth Acupuncture, P.C. v Hereford Ins. Co., 2017 NY Slip Op 51871(U)(App. Term 2d Dept. 2017)
“As limited by its brief, plaintiff appeals from so much of the Civil Court’s order as granted 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 and denied the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover for those services.
It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. The workers’ compensation fee schedule does not assign a relative value to this code, but instead has assigned it a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Defendant’s denial is based upon plaintiff’s failure to provide such documentation with its claim form. However, as defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in order to review plaintiff’s claims for services billed under CPT code 97039, defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover for services rendered under that code (see Gaba Med., P.C. v Progressive Specialty Ins. Co., 36 Misc 3d 139[A], 2012 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”
This is a silly basis to deny a bill.
Laga v GEICO Ins. Co., 2017 NY Slip Op 51713(U)(App. Term 2d Dept. 2017)
“Defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate, or that it had appropriately applied Ground Rule 11. Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action should have been denied. ”
From what I am observing, this Court appears to be very exacting on the proof necessary to establish GR 11 reductions. Outside the affidavit of a certified fee coder, I have not seen anyone have much success with these cases on motion with claims affidavits.