Defense of unbundling requires coding expert affidavit

First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 2010 NY Slip Op 50149(U)(App. Term 2d Dept. 2010)

Unbundling.  I love this word.  I discussed this issue in a previous post.  Click here for that post.  The only difference between the previous case and this case is that the penalty for failing to proffer an expert affidavit (assuming you can find an expert who would support the unbundling theory in this case) is succumbing to a plaintiff’s summary judgment motion.  The relevant portions of the case are as follows:

“While defendant denied the claims underlying plaintiff’s first and fifth causes of action on the ground that plaintiff sought to recover in excess of the fee schedule by ” unbundling’ the service[s] into . . . separate bill[s]” even though such services “are considered part of the initial medical evaluation,” defendant did not submit an affidavit from someone with sufficient expertise to establish that ground as a matter of law or even to demonstrate the existence of a triable issue of fact with respect to the billing for such services (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]). As a result, defendant “failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of [plaintiff] on the [first and fifth] cause[s] of action” (Kingsbrook Jewish Med. Ctr., 61 AD3d at 23).”

Finally, the case involved a premature additional verification request where plaintiff was granted summary judgment.  This was reversed.

“It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).”

A hidden gem in an a decision more recignizable for its dissent

St. Vincent Med. Care, P.C. v Country-Wide Ins. Co. 2009 NY Slip Op 29508 (App. Term 2d Dept. 2009)

This case is more notable for the fact that it was decided prior to, yet published after “Infinity v. Eveready”, as well as Justice Golia’s scathing dissent regarding many of the same concerns that the Court of Appeals discussed 6 years ago in “Medical Society v. Serio.”

The issue that I am writing about is something that I am sure nobody noticed.  It involved the defendant’s failure to prima facie prove its fee schedule defense.  The court said the following:

“In opposition, defendant argued that it timely denied plaintiff’s claim seeking to recover the sum of $228.55 for services rendered on February 22, 2006 on the ground that the fee sought was in excess of the amount permitted by the workers’ compensation fee schedule because the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Defendant established that it timely denied this claim”

It appears that the insurance carrier denied either muscle testing or range of motion testing based upon the worker’s compensation ground rule that prohibits compensation for certain services that are performed when an initial or follow-up evaluation is performed and paid.  While many do not know this fact, this was the fee schedule issue that was presented in Rogy Medical, P.C. v. Mercury Ins. Co., 2009 NY Slip Op 50732(U)(App. Term 2d Dept. 2009), and it did not succeed.


Acupuncture under all circumstances may be paid at the chiropractor rate. That is it.

The matter of Great Wall Acupuncture, P.C. v Geico Ins. Co. 2009 NY Slip Op 29467 (App. Term 2d Dept. 2009) was an interesting opinion involving acupuncture fee schedule cases.  This case completes the equation as to what is necessary for an insurance carrier that pays the chiropractor rate for acupuncture to prevail at trial.  Upon showing that acupuncture services were paid at the chiropractor rate, a prima facie defense as a matter of law has been satisfied.

Thus, as long as the pertinent portions of the fee schedule and a timely denial are in evidence, a defense verdict should be granted.  There is nothing that a plaintiff can do to rebut this prima facie showing.

Here are the pertinent portions of the opinion with some relevant observations.

“At trial, the parties stipulated to plaintiff’s prima facie case and further agreed that defendant had timely denied the unpaid portion of the claim on the ground that the charges for acupuncture treatments exceeded the maximum fees under the appropriate
fee schedule. Additionally, pursuant to the parties’ stipulation, the claim form and the denial of claim form were admitted into evidence”

  • This portion of the opinion discusses the evidence that  in the Appellate Term’s opinion was sufficient to make a prima facie demonstration that the acupuncture services were billed in excess of the chiropractor fee schedule.

“A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license (see 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]).”

  • Here, the Appellate Term outlined the comparative licensure requirements between a licensed acupuncturist and a chiropractor licensed to practice acupuncture.  I would just note that Judge Gonzalez in Great Wall Acupuncture v. GMAC, 6/15/2007 N.Y.L.J. 22, (col. 3)(Civ. Ct. Bronx Co. 2007) engaged in a similar analysis, and came to a somewhat differing conclusion.

“Accordingly, in light of the licensure requirements, we hold, 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”

  • All the insurance carrier needs to show is that the services were paid at the chiropractor acupuncture rate and a directed verdict in favor of an insurance carrier must be granted.

Hopefully, we will never see the words reasonable geographic value, or some variant of this phrase, ever again.


Stick a needle in me and call it acupuncture

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 chiropractor rate is all that an acupuncurist is entitled to

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.

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.