The Appellate Term in Great Wall Acupuncture, P.C. v GEICO Ins. Co. 2009 NY Slip Op 52308(U)(App. Term 2d Dept. 2009) once again held that the chiropractor fee schedule was all that a licensed acupuncturist was entitled to. Sure, the court modified the lower court order on the basis that summary judgment should have been granted to plaintiff on the untimely denied portion of the complaint. The Court also categorically rejected the reasonable geographic charge argument that plaintiff forwarded. Finally, the court even affirmed the lower court’s granting of summary judgment to the non-moving party, Geico.
So, despite the order of the lower court being modified, I must offer my congratulations to (I am going to guess) Spina’s office on this one.
Getting off the topic, how many of you have done an EUO and asked the EIP whether the acupuncturist missed the meridian and caused the EIP to bleed? I usually ask that question, and you would be surprised at the amount of affirmative responses I get.
The Appellate Term is starting to sound like a broken record. Yet, each time they play the record it seems that the message is more emphatic.
In New Wave Acupuncture v. Geico, 2009 NY Slip Op 52211(u)(App. Term 2d Dept. 2009), the Court stated the following: “For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive.”
Note: The court as of this case and Ava Acupuncture v. Geico does not require the carrier to provide evidence as to why it chose to pay chiropractor fee schedule rate as opposed to another rate. The chiropractor fee schedule amount is acceptable as a matter of law. Period, the end.
Now, let’s assume that you are in a stipped in trial and the sole issue is whether or not the billing was in accordance with the “fee schedule”. Based on New Wave Acupuncture v. Geico and Ava Acupuncture v. Geico, this is what the defendant’s portion of the trial should look like:
Exhibit “A” [Comes in through stip]
(1) Denial of claim form with explanation of benefits
Exhibit “B” [Comes in as a government document through judicial notice Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co, 61 AD3d 13 (2d Dept. 2009)].
(2) Fee schedule with CPT 97810, 97811, 97813, 97814;
Exhibit “C” [Comes in as a government document through judicial notice Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co, 61 AD3d 13 (2d Dept. 2009)].
(3) Chiropractor conversion factor [5.78];
Exhibit “D” for identification:
(4) Shiny Sharpe brand Calculator
Exhibit “E” for reference: New Wave Acupuncture v. Geico and Ava Acupuncture v. Geico
(5) Give copies to the Judge and Plaintiff’s counsel.
(6) Tell Plaintiff and judge: “No, I do not need to bring a claim rep. This is why…”
(7) With calculator, take the relative value, multiply by the Region IV conversion factor of 5.78 and announce the result to the court. If you want, read the portion of the fee schedule that tells the court that this is how you arrive at the compensable amount. You will find this in the introduction section of the fee schedule.
Now, do this for each billed for code. Does the amount you calculated match the amount paid on the denial of claim form? If yes, go to next step.
(7) Motion for directed verdict.
(8a) If win smile
(8b) If lose APPEAL and do not forget to enter a judgment for costs and disbursements including the prospective marshal fee after the judgment is reversed without costs. The without costs only refers to appellate costs.
(8c) Tell the marshal you want to enforce the $105 judgment you just entered. See what the marshal says. I know first hand what you will be told. But, insist that the marshal collects the judgment. He is duty-bound to do this. I guarantee you will have a check in the mail in no time. One warning however: the next time you call that marshal, you will be told that you have the wrong number. Don’t worry – there are plenty of marshals out there.
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.
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] )”
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.
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.