Liberty Chiropractic, P.C. v 21st Century Ins. Co., 2016 NY Slip Op 51409(U)(App. Term 2d Dept. 2016)
“Plaintiff properly argues on appeal that defendant failed to establish its defense, that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule, as a matter of law (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]). For example, defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate. In addition, defendant sought to demonstrate that plaintiff was not entitled to any payment for services rendered by plaintiff on specific dates because defendant had already paid another provider, Harvard Medical, P.C., for eight units of physical medicine procedures and/or modalities, the full number of units permitted by Physical Medicine Ground Rule 11, for each of those dates. However, the documents relied upon by defendant were attached to the motion papers without authentication, foundation or even discussion. Even if we were to take the documents at face value, they show only that Harvard Medical, P.C. had billed for a total of three units for each of the applicable dates.”
This was one is interesting and necessitates some discussion. Has the Court agreed that a chiropractor is limited to 8 units, even when CMT is performed? Unsure. What authentication is necessary to prove the other 8 units? Discussion in the affidavit that we received billings from other provider and paid 8 units per diem? Does the Court require proof that the others units were actually paid? Unsure, but probably yes.
High Quality Med. Supplies, Inc. v Mercury Ins. Group, 2016 NY Slip Op 51444(U)(App. Term 2d Dept. 2016)
“In SK Prime Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co. (43 Misc 3d 133[A], 2014 NY Slip Op 50630[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), this court noted that the “NYS Medicaid DME Services Fee Schedule” has been adopted as the Durable Medical Goods Fee Schedule for Workers’ Compensation (12 NYCRR 442.2 [a]). However, contrary to defendant’s argument on appeal, that is not a basis to hold that “the billing for durable medical equipment that is not included within the fee schedule is not compensable.” Indeed, 11 NYCRR 68.5 specifically addresses reimbursement for healthcare services not set forth in fee schedules”
I suppose I was unavailing here. 68.5 played out to the insurance carrier’s detriment.
Okay, tell me you did not see this one coming? But as long as “Avanguard” is the law of the land in New York, New Jersey will still be a lucrative market for no-fault providers. And, I do not see how you can apply Avanguard to New Jersey in light of this regulation. But greater and shiftier minds than mine will certainly try I am sure.
PROPOSED RULE MAKING: NO HEARING(S) SCHEDULED
Charges for Professional Health Services
I.D. No. DFS-39-16-00007-P
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action: Amendment of section 68.6 (Regulation 83) of Title 11
Statutory authority: Financial Services Law, sections 202 and 302; Insurance Law, sections 301, 2601, 5221 and art. 51 Subject: Charges for Professional Health Services.
Purpose: Limit reimbursement of no-fault health care services provided outside NYS to highest fees in fee schedule for services in NYS. Text of proposed rule: Section 68.6 is amended to read as follows:
Section 68.6 Health services performed outside New York State.
(a)(1) If a professional health service reimbursable under [section 5102(a)(1) of the] Insurance Law section 5102(a)(1) is performed outside [New York] this State, the [permissible charge] amount that the insurer shall reimburse for [such] the service shall be the prevailing fee in the
geographic location of the provider with respect to services:
(i) that constitute emergency care;
(ii) provided to an eligible injured person that is not a resident of this State, or
(iii) provided to an eligible injured person that is a resident of this State who is outside this State for a continuous period of at least fourteen days for reasons unrelated to the treatment.
(2) For purposes of this subdivision, emergency care means all medically necessary treatment of a traumatic injury or a medical condition manifesting itself by acute symptoms of sufficient severity such that absence of immediate attention could reasonably be expected to result in: death; serious impairment to bodily functions; or serious dysfunction of a bodily organ or part. Emergency care shall include all medically necessary care immediately following an automobile accident, including immediate pre-hospitalization care, transportation to a hospital or trauma center, emergency room care, surgery, critical and acute care. Emergency care extends during the period of initial hospitalization until the patient is discharged from acute care by the attending physician. Emergency care shall be presumed when medical care is initiated at a hospital within 120 hours of the accident.
(b) If a professional health service reimbursable under Insurance Law section 5102(a)(1) is performed outside this State with respect to an eligible injured person that is a resident of this State, the amount that the insurer shall reimburse for the service, except as provided in subdivision (a) of this section, shall be the fee set forth in the region of this State that has the highest value in the fee schedule for such services.
(c) Notwithstanding anything else in this subdivision, an insurer shall not reimburse an amount for a service that exceeds the amount that the provider is legally permitted to charge under the laws of the jurisdiction where the services are provided.
Text of proposed rule and any required statements and analyses may be obtained from: Hoda Nairooz, New York State Department of Financial Services, One State Street, New York, NY 10004, (212) 480-5595, email: email@example.com
Data, views or arguments may be submitted to: Same as above.
Public comment will be received until: 45 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. Statutory authority: Sections 202 and 302 of the Financial Services Law, and Sections 301, 2601, 5221, and Article 51 of the Insurance Law. Insurance Law Section 301 and Financial Services Law Sections 202 and 302 authorize the Superintendent of Financial Services (the “Superintendent”) to prescribe regulations interpreting the provisions of the Insurance
Insurance Law Section 2601 prohibits insurers from engaging in unfair
claim settlement practices and requires insurers to adopt and implement
reasonable standards for the prompt investigation of claims arising under
Insurance Law Section 5221 specifies the duties and obligations of the
Motor Vehicle Accident Indemnification Corporation with respect to the
payment of no-fault benefits to qualified persons.
Article 51 of the Insurance Law contains the provisions authorizing the
establishment of a no-fault reparations system for persons injured in motor
vehicle accidents, and Section 5108 specifically authorizes the Superintendent
to adopt or promulgate fee schedules for health care benefits payable
under the no-fault system.
2. Legislative objectives: Chapter 892 of the Laws of 1977 recognize
the necessity of establishing schedules of maximum permissible charges for professional health services payable as no-fault insurance benefits in order to contain the costs of no-fault insurance. To that end, in accordance with Insurance Law section 5108(b), the Superintendent adopted those fee schedules that are promulgated by the Chairman of the Workers’ Compensation Board (the “Chairman”). In addition, the Superintendent, after consulting with the Chairman and the Commissioner of Health, established fee schedules for those services for which schedules have not been prepared and established by the Chairman.
3. Needs and benefits: The current rule provides that the maximum permissible charge for health care services rendered outside this State to a person eligible for New York no-fault benefits shall be the prevailing fee in the geographic location of the provider. The proposed rule limits insurers’ reimbursement of no-fault health care services provided outside the State at the election of a New York State eligible injured person to the fees set forth in the region of this State that has the highest value in the fee schedule for those services. An exception to the proposed amendment would be when the health care services constitute emergency care, are
provided to an eligible injured person who does not reside in this State, or are provided to an eligible injured person who is a resident of this State and who is outside the State for a continuous period of at least 14 days for reasons unrelated to the treatment. In such cases, the current rule will continue to apply.
There has been no uniform interpretation of the prevailing fees outside the State. As a result, no-fault claimants are being referred to certain health care providers outside New York, usually in New Jersey, who take advantage of the absence of specific fee schedules and submit excessive
charges under exaggerated claims, well above the corresponding New York State fee schedules applicable to those health care services rendered. Since basic personal injury protection coverage under no-fault is only $50,000, the higher the bills, the sooner the injured person will find coverage exhausted. This results in no-fault benefits available to injured persons being depleted more quickly, to their detriment.
Representatives of both the insurance industry and the medical profession have conveyed to the Department that amending the current regulation is necessary in order to close these loopholes that have resulted in increased no-fault claim bills. In addition, numerous arbitrators that serve
on the Department’s no-fault arbitration panel have indicated that this issue has generated a significant number of disputes due to the significant disparity between the excessive fees being charged by out of state health care providers and those permitted under the current rule. By setting a maximum fee that out-of-state health care providers may receive as reimbursement for no-fault-related health services, this amendment should lead to reduced arbitration and litigation costs for insurers and self insurers, which are typically passed to consumers in the form of higher premiums, as well as help to stem the rapid depletion of no-fault benefits
available to eligible injured persons.
4. Costs: This rule imposes no compliance costs upon state or local governments. However, the rule will impact out-of-state health care providers who will now be reimbursed for health services pursuant to the applicable fee schedule prescribed in the proposed rule.
5. Local government mandates: This rule does not impose any requirement upon a city, town, village, school district, or fire district. However, local governments who are self-insurers for no-fault coverage shall only be required to reimburse out-of-state health care providers at the rates
prescribed in the proposed rule, rather than the subjective prevailing rate in the geographic location of the out-of-state provider.
6. Paperwork: This rule does not impose any additional paperwork on any persons affected by the rule.
7. Duplication: This rule will not duplicate any existing state or federal rule.
8. Alternatives: In order to effectuate the cost savings goals of New York’s no-fault laws, the Department has determined that there are no other viable alternatives to this rule.
9. Federal standards: There are no minimum federal standards for the same or similar subject areas. The rule is consistent with federal standards or requirements.
TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2016 NY Slip Op 50978(U)(App. Term 1st Dept. 2016)
(1)”Defendant made a prima facie showing of entitlement to partial summary judgment dismissing plaintiff’s no-fault claims for services rendered July 12, 2010 through August 31, 2010, by demonstrating that it timely and properly denied the claims based on the June 17, 2010 independent medical examination (IME) report of its examining doctor, which set forth a sufficient basis and medical rationale for the conclusion that there was no need for further acupuncture treatment (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 ). Plaintiff’s opposition consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof was insufficient to raise a triable issue as to medical necessity (see Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 143[A], 2012 NY Slip Op 50102[U][App Term, 1st Dept. 2012]). The assignor’s subjective complaints of pain cannot overcome the objective medical tests detailed in the affirmed report of defendant’s examining doctor (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 ).”
(2) “Defendant’s position that the charges billed under CPT Code 97039 are not reimbursable because plaintiff is not licensed to provide physical medicine modalities is unpersuasive”
It’s interesting to see a Second and First Department case that I won in the first three cited to cases. The Arnica case is a killer on the IME cut off cases because it requires the provider to marshal real proof, not manufactured affidavits that at their root say nothing.
The fee schedule issue is correct and yet another iteration of why the commercial EOB systems need to be manually overridden when acupuncture fee schedule issues outside the standard 97810-97814 codes arise.
Renelique v Tri State Consumers Ins. Co., 2016 NY Slip Op 50866(U)(App. Term 2d Dept, 2016)
“Plaintiff’s argument—that defendant is precluded from raising its defense that the fees charged exceeded the amount allowed by the workers’ compensation fee schedule because defendant’s denial of claim form did not set forth this defense with sufficient particularity—lacks merit (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 ).”
I have seen the new trend in AAA arbitration where a fee schedule defense based upon 8 units paid to another provider must be raised with specificity, i.e., the other provider to whim the units were paid. This case clearly states that this line of thinking is wrong on the law. I assume it will take the Appellate Division to convince AAA to follow the law.
Tyorkin v Garrison Prop. & Cas. Ins. Co., 2016 NY Slip Op 50846(U)(Civ. Ct. Kings Co. 2016)
(1) “In the case at bar, Defendant’s affiant, Raina Lira, a Claims Adjuster employed by Defendant, avers that Defendant, through its vendor, Auto Injury Solutions (AIS), mailed the [*2]Explanation of Reimbursement Form (EOR) to the medical provider. There is no indication that a NF-10 form was issued in this matter although Ms. Lira avers that in applicable instances, the Denial of Claim Form (NF-10) is sent. Further, there is no indication that the EOR form, which was the only document issued in response to Plaintiff’s claim, is a form or letter approved by the Department as so allowed by 11 NYCRR 65-3.8(c)(1). Thus, notwithstanding both parties’ arguments with regards to the substantive merits of the peer review defense, the Court finds that such defense is precluded by Defendant’s failure to issue a NF-10 Denial of Claim form.”
Here’s a silly question. Was this is an out of state based policy? Did anyone argue that out of state law applied? The policy mandates arbitration? Alrof, Bright Supply, bad affidavits?
(2) “Likewise, in this instance, the Court finds that Defendant’s fee schedule defense is neither precluded by timeliness or its failure to issue a Denial of Claim form as the language of the statute strictly mandates that “no payment shall be due .under any circumstances” for medical service fees that exceed the fee schedule charges. 11 NYCRR 65-3.8(g). In other words, [*3]Plaintiff would only be entitled to the payment of the subject bill at the rates permissible and authorized in the state of New Jersey. The Court is unpersuaded by Defendant’s argument that payment for Plaintiff’s bill is outright prohibited simply because the billed amount is higher than permissible. The regulation only reduces payment to the amount authorized by the applicable fee schedule.”
This is an important statement as various arbitrators have taken the position that over-billing is tantamount to failure to provide proof of claim and nothing should be awarded. While inartfully drafted, 65-3.8(g)(iii) sought to overturn Mercury v. Encare, which disallowed the insurance company to raise a fee schedule defense to grossly over-billed services.
(3) “In Ms. Moreno’s affidavit, upon which she concludes that the proper amount of the bill would be $5,976.50, rather than the billed amount of $10,144.88, there is no further explanation as to what the sum comprises of. While the Court may consider an attorney affirmation in the explanation of fee schedule provisions and the Court may take judicial notice of the fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 18 [App. Div. 2d Dep’t 2009]), the attorney affirmation of Dianne Galluzzo neither explains Ms. Moreno’s analysis or explains allowable reductions. The Court cannot presume to be knowledgeable of fee schedule reductions that, on its face, cannot be specifically adduced, and will not make any findings of fact as to such reductions. As such, a triable issue of fact remains as to its fee schedule defense. Further, the Court notes that while Ms. Moreno’s analysis sufficiently raises a triable issue, her analysis alone is inarticulate and insufficient to be the basis of summary judgment.
Very sloppy. There is no quality control over these cases.
New Age Acupuncture, P.C. v 21st Century Ins. Co., 2016 NY Slip Op 50737(U)(App. Term 2d Dept. 2016)
“Upon a review of the record, we find that defendant’s moving papers failed to demonstrate defendant’s prima facie entitlement to summary judgment with respect to so much of the complaint as sought to recover for services billed using CPT code 97026 (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]; see generally Sunrise Acupuncture PC v Tri-State Consumer Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435[U] [App Term, 1st Dept 2014]).
Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed using CPT code 97026 is denied.”
This would be the infrared code. I suspect the insurance carrier denied the billing as “our of scope”. The recent case law would suggest otherwise and this is just a further elucidation of the recent case law.
In the matter of Accelerated DME Recovery, INC. a/a/o Ana Pleitz v. State Farm Mutual Auto. Ins Co.. Index # 706132/15 (Sup. Ct. Queens Co. 2015)(Modica, AJSC)
While the denial of an Article 75 challenge to a master arbitrator’s decision is not generally newsworthy, this Decision from Supreme Court appears to have gone a step further and on its face would have probably granted State Farm’s challenge to an arbitration award.
What you will discern through a reading of this opinion is the Court has found as a matter of law that the Medicaid formula for determining the proper amount of reimbursement for CPM, i.e. (1/6th * invoice /30) is proper. I would parenthetically note that the DOH opinion that State Farm obtained on this issue appears to be 1) dispositive; and 2) the potential death knell to the argument that CPM providers can charge reasonable and customary.
I sense this may be a game changer.
Good job to counsel for State Farm on this discreet issue. At fee schedule, will surgery providers deem CPM to be absolutely necessary for the recovery of surgery causally related to a motor vehicle accident? I know where my vote is on that question.
Surgicare Surgical Assoc. v National Interstate Ins. Co., 2015 NY Slip Op 25338 (App. Term 1st Dept. 2015)
(1) “Insurance Department regulation (11 NYCRR) § 68.6 provides that where a health service reimbursable under Insurance Law § 5102(a)(1) “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (emphasis added). We agree, essentially for reasons stated by Civil Court (46 Misc 3d 736 ), that where a reimbursable health care service is performed outside the State of New York in a jurisdiction that has enacted a medical fee schedule prescribing the permissible charge for the service rendered, an insurer may properly rely on such fee schedule to establish the “prevailing fee” within the meaning of 11 NYCRR 68.6, and demonstrate compliance therewith by payment in accordance with that fee schedule.”
In one long paragraph, the Appellate Term has held that a no-fault fee schedule in a sister state will be deemed the appropriate fee schedule for services performed in the sister state.
(2) “We note that since the services here were rendered after April 1, 2013, the defense of excessive fees is not subject to preclusion (see 11 NYCRR 65-3.8[g][eff Apr. 1,2013).”
Lack of conformity of billing in accordance with the fee schedule is a defense for all services rendered after April 1, 2013. This is important for a reason you may not appreciate. Many defense counsel are arguing that the bizarre wording of 65-3.8(g) has made billing in conformity with fee schedule and proof that the service was rendered part of the prima facie case. At face value, this is a good argument. The problem with this argument is the evil 3.8(g) was ameliorating was the precluability of the defense of fee schedule and billing fraud. The two cases that 3.8(g) sought to overrule were Mercury v. Encare and Fair Price v. Travelers. Taken in the light that this must be taken in, the Court has held that the “defense excessive of fees is not subject to preclusion”
It has been my fervent believe that a provider should need to plead and prove the foundation elements of a no-fault action – necessity, causal relationship, overdue and damages. The Courts have uniformly held that all four elements are satisfied through submission of bill or, in the context of Domotor, proof of receipt of a global denial or its equivalent. As they say, deal with it.
Also, a favorable mention to Aaron Peretta for prosecuting this appeal. It was a mine field – and I have stepped in too many lately – but he did the best he could.
GBI Acupuncture, P.C. v 21st Century Ins. Co., 2015 NY Slip Op 51235(U)(App. Term 2d Dept. 2015)
“Furthermore, the affidavit executed by defendant’s certified professional coder established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue”
I am sensing this case (among a few others) might cut into the argument (more so raised at arbitration) that the affidavit of the coder is insufficient to reduce the fee charged since the coder is not a medical professional.