Functional ATIC/ medial necessity and fee schedule defense susbstantiated

Jaga Med. Servs., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50954(U)(App. Term 2d Dept. 2017)

(1) “In opposition to those branches of defendant’s cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”

(2) “Contrary to plaintiff’s contention, the affidavit executed by defendant’s expert professional coder, submitted in support of the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fifth causes of action, 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 in these causes of action (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).”

Interesting observation from the motion papers.

(1) Peer review involved EMG/NCV: The opposition affidavit did not seem bad.   While it said a lot, however, it was totally not responsive to the peer report.

(2) Expert analysis involved ROM and MMT: Payable  per extremity and trunk.   The review again recommended less than what was actually paid.  There was no fee schedule opposition.

Back when ATIC had a functional litigation defense strategy

Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50946(U)(App. Term 2d Dept. 2017)

I had to look through my archives to see what happened here.    The verification defense was not addressed nor was the fee schedule defense addressed in the main motions.  The defense was suppoted by affidavit and stated the following:

“The basis of the denial is that the billing was in excess of the applicable fee schedule. A provider who administers Muscle Testing (CPT Code 95831) and Range of Motion services (CPT Code 95851), like all other services, must abide by the fee schedule.  Plaintiff billed in excess and Defendant is entitled to summary judgment to the extent that the bills were in excess of the fee schedule. ”

“A subsequent fee schedule review was performed by Defendant’s expert coder based upon Plaintiff’s billing, medical records, and supporting documentation. Defendant’s expert review determined that the manual muscle testing codes may not be unbundled.  When multiple extremities of muscle testing are performed, compensation is limited to the appropriate bundled code, i.e. CPT Code 95833 (testing, total evaluation without hands), rather than Plaintiff billing multiple times for CPT Code 95851. CPT Code 95833 has a relative value of “13.53” and when it is multiplied by the conversion factor in region IV (where services were performed) “8.45”, this yields the appropriate total fee schedule amount of $114.33.”

“Plaintiff also billed for range of motion testing: CPT Code 95851. As per the Worker’s Compensation fee schedule, compensation is limited to each extremity or each trunk section that is tested.  CPT Code 95851 has a relative value of “5.41” and when it is multiplied by the conversion factor in region IV (where services were performed) “8.45”, this yields a fee schedule amount of $45.71 per extremity or trunk section of the spine. Defendant’s coding expert opined that this should be remitted only once per area tested.”

A coding affidavit corroborated these facts and averred that Plaintiff was overpaid.



Hearsay insufficient to substantiate a fraud defense/Fee Schedule discussion

Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co.,2017 NY Slip Op 50945(U)(App. Term 2d Dept. 2017)

Fee Schedule: Box #18

(1) “Contrary to plaintiff’s contention, the denial of claim forms were sufficient to advise plaintiff that defendant was partially denying plaintiff’s claims on the ground that the amount plaintiff sought to recover was not in accordance with the workers’ compensation fee schedule. Indeed, a checked box on the forms indicated that benefits were denied because the fees were not in accordance with the fee schedule (see Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

Lack of coverage

(2) “To the extent defendant seeks summary judgment dismissing these claims on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

(Infinity involved an SIU affidavit relying in large part on an inadmissible police report)

New fee schedule for the New Jersey problem thankfully is coming soon

Amendments for services rendered  or of NY

(Page 30 of the pdf)

The application of the New Jersey fee schedule has been a complete scourge on the no-fault system.  As I have said repeatedly, when a problem becomes redundant and problematic, DFS will after a 3-4 year period address the issue through regulatory amendment.  $20,000 arthroscopes in New Jersey fit this definition.  It appears this will take in effect in November.

In essence, a surgeon can bill can no greater than Region IV or the New Jersey ASC.  A  facility will only be able to bill the lower of the most expensive EAPG rate (used to be PAS) or the New Jersey ASC for services.  Exceptions are made for emergency care and a person who resides in New Jersey – not bused from Bronx to Saddlebrook, Jersey City or Englewood Cliffs by Square Circle Synagogue Transportation (the old timers will get this reference).

This regulation of course deals with all services rendered outside of NY; I stress New Jersey because that was the impetus behind the regulation.

FYI – The newer issue we are now seeing is the application of the 20999 BR surgery code since surgeons do not want to be subject to the 50% multiple procedure reduction or the true RVUs of the procedure that is billed.  This can triple a surgeon’s bill.  One problems solved, one problem created.

Substantive fee schedule discussion/Procedural analysis

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706(U)(App. Term 2d Dept. 2017)

(1) “With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue”

** this was clearly an issue of  “additional bonus codes” that were by report or where the carrier sough to change the billed for code.  It does not involved 97810, 97811, 97813, 97814 or modality codes with RVUs compensated at the Chiropractor rate **

(2) “We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001).”

** People ex rel. Fifth Ave. & 37th St. Corp. v. Miller, 261 App. Div. 550, 553 (1st Dept. 1941), aff’d, 286 N.Y. 628 (1941)

‘The courts are not entirely agreed as to the effect of the omission of a jurat or a signature thereto upon the affidavit. According to the majority view, such an omission is not fatal to the validity of the affidavit, so long as it appears, either from the rest of the instrument or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. This rule is based upon the principle that a party should not suffer by reason of the inadvertent omission of the officer to perform his duty. Under this view, an affidavit defective by reason of the omission of the jurat of the officer’s signature may, upon proof of its authenticity, be cured by amendment

Non acupuncture based add on codes – issue of fact

2 & 9 Acupuncture, P.C. v 21st Century Advantage Ins. Co., 2017 NY Slip Op 50599(U)(App. Term 2d Dept. 2017)

“Upon a review of the record, we find that defendant failed to demonstrate, prima facie, that it had properly denied payment for the unpaid portions of the bills for services billed under CPT codes 97026 and 97016 in accordance with the workers’ compensation fee schedule (see Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the amended order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016 are denied.”

It appears that Plaintiff billed for the above two codes and was not compensated for the same.  The Court through citing Sama Physical and WHO Acupuncture, P.C. is holding that in order  to zero out the non acupuncture based codes, an expert affidavit is necessary (WHO Acupuncture).  Alternatively, more probative proof would be necessary should Ground Rule 11 be utilized (Sama),


The Maslow specificity rule went up in a plume of smoke

Matter of Global Liberty Ins. Co. v Therapeutic Physical Therapy, P.C., 2017 NY Slip Op 01833 (1st Dept. 2017)

“Respondent sought recovery for physical therapy services provided to its assignor before April 1, 2013, and petitioner insurer disclaimed parts of the claim on the ground that it had already reimbursed a different provider for “eight units” for services on some of the same dates. Respondent checked the box on the prescribed disclaimer form indicating that it was relying on a “fee schedule” defense, specifically the “eight unit rule.” The lower arbitrator held that respondent was precluded from asserting its defense because the disclaimer was insufficiently specific in that the other provider was not named. Respondent appealed to the master arbitrator, arguing that it adequately preserved its defense. The master arbitrator, without addressing the issue of preservation, incorrectly found that the lower arbitrator had “considered the fee schedule defense” and “determined that [r]espondent failed to provide evidence as to the other provider.”

The master arbitrator’s award was arbitrary, because it irrationally ignored the controlling law presented on the preservation issue (Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; see generally Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]) — namely, that an insurer adequately preserves its fee schedule defense “by checking box 18 on the NF—10 denial of claim form to assert that plaintiff’s fees [were] not in accordance with the fee schedule” (Megacure Acupuncture PC v Lancer Ins Co., 41 Misc 3d 139[A], 2013 NY Slip Op 51994[U], *3 [App Term, 2d Dept 2013] [internal quotation marks omitted] [alteration in original]; Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736, 745-746 [Civ Ct, Bronx County 2014], affd sub nom. Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]). Accordingly, we remand the matter to the extent indicated.”

So the arbitrator and master arbitrator are nameless, but you can look them up if you are curious – this was an e-filed case.   I  remember this case vividly.  I appeared at the arbitration.  The lower arbitrator told me she follows the Maslow rule which states that the disclaimer must set forth a prima facie defense.  I told the lower arbitrator (who I never met before) that she was wrong, and I remember she was indignant at my comment.  Perhaps I came off too strong.  I was furious and stated that I did not care what she did because I will take the case up to the Appellate Division.  She followed through on her promise and I followed through on mine.  Man did I eat my words because the Master Arbitrator gave me the Petrofsky treatment and Justice Tapia said he thought the lower arbitrator’s analysis was spot on.  I was starting to feel as though I did not understand the law anymore.  Sometimes you read affirmations and opinions and you get the feeling that perhaps it is you, not them.

Again, the loss of Norman Dachs (prior to his illness) could be felt in the master arbitration system, as  the master failed to address controlling case law on the box #18 issue.

As happens all too frequently, it took the Appellate Division to straighten this out   If I only had Geico’s resources and volume, I would probably own half the docket at the Appellate Division, First Department (kidding, well kind of… not really).

The lesson here is that if you feel you have a solid legal argument, do not let AAA or a Supreme Court judge let you down.  You will win some and lose some.  Just make sure your papers are in order.

A true prima facie showing on summary judgment motion

Easy Care Acupuncture, P.C. v ELRAC, Inc., 2017 NY Slip Op 50234(U)(App. Term 1st Dept. 2017)

(1) “Plaintiff-provider established prima facie that its no-fault claims in the amount of $2,958.13 were overdue, since they were not “denied or paid” within the prescribed 30—day period (see Viviane Etienne Med. Care, P.C. v Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]).”

(2)  “Nor may defendant assert the defense of excessive fees for the acupuncture services rendered in 2010, inasmuch as it failed to timely and properly mail the denial of claim form to plaintiff assignee”

(3) “In addition, the conclusory assertions in the adjuster’s affidavit were insufficient to raise a triable issue as to whether certain services provided were outside the scope of acupuncture treatment”

Gary Tsirelman: the expert in acupuncture.  What else do you want me to say here?  Elrac got badly shut out on this appeal.

Judicial Notice has it outter limits

Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207(U)(App. Term 2d Dept. 2017)

I am unsure what was supposed to be accomplished with this appeal.  I hope the carrier demands a refund of their legal bill on this case.

“[t]he parties stipulated that plaintiff had established its prima facie case and that defendant had timely denied the claims at issue.”

“After the trial court marked as exhibits documents which included two pages of a workers’ compensation medical fee schedule, the claim forms and the denial of claim forms, the trial began and plaintiff immediately rested. Defendant then stated that it did not have a witness to testify regarding the fee schedule. Defendant asked the court to take judicial notice of the workers’ compensation fee schedule and rested. The Civil Court granted judgment to plaintiff, stating only that defendant had failed to proffer a witness. It is unclear whether the court took judicial notice of the workers’ compensation fee schedule.”

Now we all know this was affirmed, right?  Now you do.

“While a court is permitted to take judicial notice of, among other things, the workers’ compensation fee schedule (see CPLR 4511 [b]; LVOV Acupuncture, P.C. v GEICO Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), the party seeking to have the court take judicial notice should provide the court with sufficient information to comply with the request (see CPLR 4511 [b]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]) and demonstrate that it “has given each adverse party notice of [its] intention to request it” (CPLR 4511 [b]). Even if the Civil Court had taken judicial notice of the workers’ compensation fee schedule, the fee schedule does not, in and of itself, establish that [*2]defendant properly utilized the codes set forth within the workers’ compensation fee schedule to calculate the amount which plaintiff was entitled to recover for each service rendered (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; 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]; cf. Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]). In addition, defendant also proffered no evidence to prove that the claim at issue in the fifth cause of action had been properly reduced by virtue of a $200 deductible.”

The Court cited Natural Acupuncture Health with a “c.f.”  A review of the record shows that the carrier presented the affidavit of a claims representative demonstrating why certain codes were paid at a certain amount.  With a prima facie stip, all the carrier had to do was either (1) Bring down a claim rep; or (2) Hire an expert coder to explain why the reduction was correct.  In scenario two, you would lose the $200 deductible argument, but that was clearly now the crux of this case.  Just a silly appeal.


The By-Report

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2017 NY Slip Op 50101(U)(App. Term 2d Dept. 2017)

I recall prior to heading to a miscellaneous part in Supreme Court with guest visits to Civil Court, Judge Cohen found that a by-report code required compliance in order to make a code compesnsable or a billing overdue.  I believed he was wrong and the Appellate Term confirms.

“The record reflects that plaintiff submitted three claim forms to defendant which included charges for 21 sessions of moxibustion, under code 97039, which is described as “Unlisted modality (specify type and time if there was constant attendance)” and for one session of acupressure, under code 99199, which is described as “Unlisted special service, procedure or report.” The workers’ compensation fee schedules do not assign a relative value to either of those codes, but instead have assigned them a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff did not provide such documentation with its claim forms and defendant did not, within 15 business days of its receipt of the claim forms, request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). 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 codes 97039 and 99199 of the workers’ compensation fee schedules, defendant was not entitled to summary judgment dismissing so much of the complaint as sought [*2]to recover for services rendered under those codes”

The famous by-report.  The Court properly held that a by-report is verification issue.  This should not shock anyone; yet, I still see denials and argument based upon the failure to adhere to the by-report guidelines.