By report?

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.

 

Fee schedule defense not substantiated

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.

 

CPT Code 97039 again

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.

Fee schedule defense failed

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.

Court approves the chiro rate for Evaluation codes and consultation codes

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 51460(U)(App. Term 2d Dept. 2017)

“By order entered September 3, 2014, the Civil Court granted plaintiff’s motion to the extent of awarding it $54.74 on its $80 claim for a service billed under CPT code 99203, based upon a workers’ compensation fee schedule reduction, denied the remainder of plaintiff’s motion, and granted the branches of defendant’s cross motion seeking to dismiss the remainder of the complaint, which sought to recover for services billed under CPT codes 97810 and 97811, and so much of the complaint as sought to recover the additional $25.26 on the claim for a service billed under CPT code 99203. Plaintiff appeals, arguing that its motion should have been granted in its entirety and that defendant’s cross motion should have been denied in its entirety.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its cross [*2]motion was sufficient to give rise to a presumption that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97810 and 97811 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”

In this case, State Farm did not pay the consultation or evaluation codes.  They were denied as out of scope.  The motion for summary judgment conceded the chiropractor rates.  Civil Court granted judgment as to those rates.  The Appellate Term found this type of after the fact determination was proper.

By-Report

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2017 NY Slip Op 51452(U)(App. Term 2d Dept. 2017)

“It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not [*2]provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The record demonstrates that defendant received the claim form and that, with respect to the services at issue, its denial of the claim was based upon a failure to provide documentation. Plaintiff correctly argues that, because defendant never requested such documentation, defendant’s denial of claim form is without merit as a matter of law. Consequently, 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 should have been denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint should have been granted (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

It is hard not to have seen this result coming.  But it should be made clear that the failure to seek verification does not end the inquiry.  Assuming, as is usually the case, that verification is not sought, an expert review is necessary to determine the compensability, if any, of the service.  Similar to the failure to seek verification when the defense is lack of medical necessity, the provider can argue that the review is based upon an inadequate factual basis.

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”