Acupuncture may be paid at the chiropractor rates as a matter of law

AVA Acupuncture, P.C. v GEICO Gen. Ins. Co.
2009 NY Slip Op 51017(U)

It is amazing that Plaintiffs are still fighting what the proper reimbursement is for acupuncture services that are paid at the chiropractor rate. Some Plaintiffs are still arguing that the “geographic reasonable value” is the proper basis for no-fault compensation. Others are arguing that the defendant’s claims representative needs to affirmatively state that the insurance carrier’s standard practice is to pay claims at the chiropractor rate.

This case holds that reimbursement at the chiropractor rate is proper as a matter of law. Period. No strings, no streamers and no conditional statements to the contrary. From a point of practice, this case only discusses reimbursement under CPT Code 97780. Thus, a case coded with CPT Code 97780 and paid at the physician rate ($42.84) or at the chiropractor rate ($29.30), should allow the insurance carrier to prevail on motion or at trial.

Once the Appellate Term breaks down the proper amount of compensation for CPT Codes 97810, 97811, 97813 and 97814, then the paradigm will be completed.

Fee schedule defense – competent evidence?

OS Tigris Acupuncture, P.C. v Liberty Mut. Insurance Co.
2008 NY Slip Op 51996(U)(App. Term 1st Dept. 2008)

“Nor did defendant produce competent evidence in support of its defense of nonconformity with the applicable fee schedule (see Continental Med. P.C. v Travelers Indem. Co., 11 Misc 3d 145[A], 2006 NY Slip Op 50841[U] [2006])”

Comment: I am going to assume that the movant did not provide a copy of the applicable portions of the fee schedule and annex the Department of Insurance Letter allowing the carrier to pay the chiropractor or physician fee schedule for acupuncture or a geographical rate it deemed proper.

Fee schedule defense – Appellate Division gives due deference to the DOI

Forrest Chen Acupuncture Services, P.C. v. GEICO Ins. Co.
2008 N.Y. Slip Op. 07211 (2d Dept. 2008)

“Furthermore, the defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by submitting evidentiary proof that no fee schedule for the reimbursement of acupuncture treatments existed in 2001, and that it properly limited payment to “charges permissible for similar procedures under schedules already adopted” (11 NYCRR 68.5[b]; see Insurance Law § 5108; Ops Gen Counsel N.Y. Ins Dept No. 04-10-03 [October 2004] ). In opposition to the cross motion, the plaintiff failed to raise an issue of fact as to whether reimbursement for its acupuncture services was properly limited.”

Comment: I would opine that “competent evidence” to support a prima facie fee schedule defense would include (besides a timely denial) the following: (a) Pertinent portion of the fee schedule including conversion factor and CPT Codes with relative values; (b) DOI letter indicating it is proper; and (c) Affidavit from claims examiner indicating compliance with the foregoing.