Another motion to dismiss an initial acupuncture session is denied

Perfect Point Acupuncture, P.C. v Clarendon Ins. Co., 2012 NY Slip Op 50399(U)(App. Term 2d Dept. 2012)

“That affidavit, however, was sufficient neither to warrant the dismissal of plaintiff’s claim for the initial acupuncture visit of April 18, 2006 (see Raz Acupuncture, P.C. v [*2]AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) nor to establish defendant’s contention that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers’ compensation fee schedule”

Acupuncture fee schedule (again)

MIA Acupuncture, P.C. v Integon Gen. Ins. Corp., 2012 NY Slip Op 50393(U)(App. Term 2d Dept. 2012)

“the portion of plaintiff’s claims at issue based upon the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the acupuncture services billed for, in accordance with the workers’ compensation fee schedule”

I included this case because there have been a few acupuncture fee schedule cases floating around lately that have denied insurance carrier’s motions for summary judgment, despite what appeared to be reimbursement in accordance with the chiro or physician fee schedule.  From what I have discerned through various conversations with counsel for the various carriers is that the App. Term is enforcing the “you must ask for judicial notice rule” or the rule that the carrier must annex the proper fee schedule the moving or answering papers.

This case proves, on some level, that point.

Surgical Center does not need to comply with Article 28 to be reimbursed under no fault

Upper E. Side Surgical, PLLC v State Farm Ins. Co., 2012 NY Slip Op 50184(U)(Dis. Ct. Nassau Co. 2012)

“Plaintiff does assert, however, that there is no requirement in the Regulations that NYS Public Health Law Article 28 licensure is a prerequisite to No-Fault Claims reimbursement. The current applicable law, New York’s Office Based Surgery (OBS) Law passed on July 14, 2007 (Public Health Law § 230-d), requires merely that an office-based surgery facility must obtain and maintain full accredited status by a national-recognized accrediting agency approved by the Commissioner of Health. As to proof of same, Plaintiff provides as its Exhibit A, its certification that it was accredited from 02/27/2010 to 02/27/2011 by the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF), which included the time period of this claim. Under PHL § 230-d, AAAASF, is one of three accreditation entities which has been approved by the Commissioner. No claim is made by the Defendant that the Plaintiff provider is not in full compliance with the required registrations, certifications or accreditations to conduct its office-based surgery business under the applicable laws of New York, particularly PHL § 230-d.”

“This Court finds that the Plaintiff is not authorized to be reimbursed for the medical/surgical services it provided to its assignor under the “facility fee” schedule in accordance with The Products of Ambulatory Surgery (PAS) classification system because it is not an Art. 28 facility. Plaintiff is, however, entitled to reimbursement under Insurance Law § 5102(a)(1) for the medical/surgical services it provided to its assignor”

..

“The next question for the Court to answer is, “What is the rate of reimbursement?”

“Accordingly, inasmuch as no proof has been submitted that the Superintendent of Insurance has adopted or established a fee schedule applicable to the plaintiff/provider, a question of facts exists as to the amount of the charge for services. Moreover, no proof has been submitted as to the local geographic prevailing fee, which plaintiff provider would be entitled to be reimbursed for its services. While in certain instances, the workers’ compensation fee schedules have been utilized to established local prevailing fees, such is not the case with regard to a facility fee for office based surgery facilities, at least as far as the Court can discern. Thus, a trial of the issue is necessary.”

My answer is that 68.5(b) is satisfied through finding what a nearby Article 28 facility would be compensated and pegging that amount to the compensation that would be due and owing to an accredited office based surgical center.  So, a trial is probably not needed since Plaintiff would be entitled to the fee an Article 28 near its location is receiving.  Another way of saying this is that the case should settle for the amount that would be paid to a nearby Article 28 facility.

Acupuncture – the fee schedule is incorporated by reference

Z.A. Acupuncture, P.C. v Geico Ins. Co., 2011 NY Slip Op 51842(U)(App. Term 2d Dept. 2011)

“[Civil Court] granted the branches of plaintiff’s motion as to the claims for services rendered between November 17, 2005 and January 19, 2006, because defendant did not submit the workers’ compensation fee schedule to the court”

[Reversed]

“We find that the workers’ compensation fee schedule, which is mandated by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services rendered between November 17, 2005 and January 19, 2006 in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule and that it had issued partial denials on that ground (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is noted that defendant’s submissions also demonstrate that services billed under former fee schedule treatment code 97780, which at the time the services were rendered should have been billed under the new fee schedule treatment code, 97810, were properly re-coded accordingly. Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims are granted.”

Points of Health Acupuncture, P.C. v GEICO Ins. Co., 2011 NY Slip Op 51843(U)(App. Term 2d Dept. 2011)

Same as above.

LVOV Acupuncture, P.C. v GEICO, 2011 NY Slip Op 51844(U)(App. Term 2d Dept. 2011)

We find that the workers’ compensation fee schedule, which is mandated by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule

“Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $160.56 for the initial acupuncture visit on May 20, 2005, billed under fee schedule treatment code 99204”

Nothing gives me a bigger headache than reading about acupuncture and the fee schedule

Here are my top ten favorite arguments about why the chiropractor fee schedule should not be abided by.

1) There is no First Department case on point.  Mind you the Court of Appeals in LMK gave the DOI carte blanche to interpret any aspect of no-fault law via opinion letter.

2) The DOI’s opinion is unconstitutional.  This one is plainly absurd; and it is even more absurd when the Attorney General is not put on notice that a constitutional argument is being made.  I would impose $50 in motion costs each time this place in a motion or affirmation in opposition.

3) I can bill a separate code for each body region a needle is placed.

4) Acupuncturists have a superior educational level to that of chiropractors.  Is is that superior that they can bill $100 per acupuncture session?

5) Even the medical rate is too low and summary judgment should be denied.

6) You attached the 2007 fee schedule, even though the services were rendered in 2010.  Note – the fee schedule for acupuncture has not changed since the conversion from 97780 to 97810,et. al. in 2004.

7) It is a triable issue of fact because this issue should really go trial.

8 ) You cashed the payment for the partial reimbursement for acupuncture services, yet the denial (which accompanied the check) was never mailed

9) There is no fee schedule, so we can bill what we want.

10) We left the needles in for 20 minutes and therefore can bill for the act of reinsertion.

LVOV Acupuncture, P.C. v Geico Ins. Co., 2011 NY Slip Op 51721(U)(App. Term 2d Dept. 2011)

Anyway, here is an interesting case that evaluates certain arguments.

“We find that the workers’ compensation fee schedule, which is required by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff did not object to the fee schedule amount set forth by the defense, nor contest the timely denial of the claims, so much of defendant’s motion as sought summary judgment dismissing the complaint as to these claims is granted.”

Incorporated by reference = I do not need to attach it.

Also, did you see the initial visit, that was upheld in the amount of $160.56?  I have a thought about this one…

Fee schedule defense not preserved abesent a timely denial

Mercury Cas. Co. v Encare, Inc. 2011 NY Slip Op 32166(U)(Sup. Ct. NY Co. 2011)

Do you really think I believed I was going to win this one?  To quote a relatively obscure country artist:  “This ain’t my last goodbye”.  See you on Madison Avenue.

WHO?

W.H.O. Acupuncture, P.C. v Geico Gen. Ins. Co., 2011 NY Slip Op 51408(U)(App. Term 2d Dept. 2011)

Three statements of law.

One you knew – unless you are (1) arguing that the acupuncture fee schedule is unconstitutional, and (2) failing to inform Schneiderman’s office in violation of the Executive Law that you are challenging the constitutionality of a statute or regulation.  Seriously – and you know who you are – stop already.

The second one is interesting because an appeal of an order finding liability constitutes  an appealable paper notwithstanding a subsequent order that modifies the awarded damages.

Last – a judgment should not be prepared by the clerk and should be served on the adversary.  I know there is case law out there refuting the latter point – I need to find it.  As to the former point – someone should call chief clerk Baer since the Civil Courts, as a matter of course,  have been preparing judgments in all cases for about 4-5 years already.

“We note that the April 28, 2010 order modified the December 18, 2009 order only to the extent of changing the sum awarded. It did not affect the Civil Court’s findings of liability as a matter of law, which are the subject of defendant’s appeal.”

“We incidentally note that the judgment in this case was improperly prepared and entered by the clerk on his own initiative and that no notice of the entry of the judgment was provided to the parties. Pursuant to CCA 1401, a judgment shall be prepared by a party’s attorney and should be prepared by the clerk only upon the request of an unrepresented party, except in the case of a summary proceeding to recover possession of real property.”

“We find that defendant’s cross motion for summary judgment dismissing the complaint should have been granted, as 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 for services rendered by a licensed acupuncturist”

How much was that anesthesia really worth?

Judge Ciaffa, who is probably one of the most consumer oriented judges on the bench – and has good reason to be – has written another blockbuster decision.  This time, instead of attacking the assignees of credit card debt – I can never get enough of those decisions – he is going after those medical providers who seek judgments against uninsured patients.  This is an excellent decision, and I hope the Appellate Term and Appellate Division adopt it.

Nassau Anesthesia Assoc. PC v Chin, 2011 NY Slip Op 21178 (Dis. Ct. Nassau Co. 2011)

“As the Court of Appeals recognized in the context of a dispute involving an insured patient’s co-insurance obligation, private insurers may be able to obtain “very substantial discount[s]” from medical providers for a variety of reasons, i.e. “volume of payments, promptness of payment, assurance of payment.” See Flushing Hosp. v. Woytisek, 41 NY2d 1081, 1082 (1977).

Nevertheless, in cases, like this, where a medical provider seeks a monetary judgment against an uninsured individual, the Court cannot ignore the realities of today’s healthcare marketplace. At the Court’s request, plaintiff provided the Court with information comparing the amounts charged to uninsured persons (such as defendant) and the amounts plaintiff would have accepted from major private insurers or the federal government under Medicare and Medicaid. The differences in payments are striking.

According to plaintiff’s billing supervisor, “[a] person without insurance, such as the Defendant, . . . would pay $8,675.00″ for plaintiff’s anesthesia services. In contrast, if defendant had been covered by Blue Cross Blue Shield, United Healthcare, or Vytra, plaintiff would have been paid between $5,208.01 (Blue Cross Blue Shield) and $6,970.00 (United Healthcare). Medicare, in turn, would have paid plaintiff only $1,605.29. And if defendant were covered by Medicard, plaintiff would have received just $797.50.”

Spodak's musings on the SAPA have gone ignored

Sung Bok Lee v Metropolitan Prop. & Cas. Ins. Co, 2011 NY Slip Op 50110(U)(App. Term 2d Dept. 2011)

The Appellate Term Second Department does not seem impressed with JHO Spodak’s analysis of why the DOI is unable to interpret its own regulations.

Only in no-fault can a Civil Court JHO "reverse" the holdings of the Appellate Divisions and the Court of Appeals

You can find this case from the January 24, 2010 law journal, reproduced on David Barshay’s No-Fault Paradise. That said, I have three points I am going to make.  I will leave it up to Geico’s counsel to fill in the blanks – not my job.  I am also taking a really strong position; a position I earnestly take as a practitioner, not as a defense attorney.

Point 1: Where did this come from? It was not from a civil court, intermediate appellate court or federal court interpreting New York law.

“The responsibility for administering the Insurance Law and, in particular, fair claims settlement under the No-Fault Law rests with the Superintendent (see Insurance Law §§ 301, 5106[a] ). For purposes of calculating attorneys’ fees, the Superintendent has interpreted a claim to be the total medical expenses claimed in a cause of action pertaining to a single insured, and not-as the courts below held-each separate medical bill submitted by the provider. OPINION LETTER ANYONE? Because this interpretation is neither irrational, unreasonable, nor counter to the clear wording of the statute, it is entitled to deference. Thus, this Court accepts the Insurance Department’s interpretation of its own regulation and, upon remittitur, directs Supreme Court to calculate attorneys’ fees based on the aggregate of all bills for each insured.”

Point 2: “Whether filing and publication is required depends upon the nature of the policy; if it is merely an interpretation or explanation of a preexisting rule or general policy, filing is not required.”  No comment.

Point 3: Who am I?

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 NY Ins Dept No. 04-10-03 [Oct. 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.”

Let sleeping dogs lie.  Move on already….