Surprised?

Oriental World Acupuncture, P.C. v GEICO, 2012 NY Slip Op 51062(U)(App. Term 2d Dept. 2012)

When one asks to be reversed, you have to figure someone will take you up.  I think pure Great Wall reversals should earn the treatment that Defendants in Aloi v. Ellis, 2012 N.Y. Slip Op. 04864 (4th Dept. 2012) received.

Article 28 of the PHL is not a bar for the recovery of no-fault benefits for office based surgeries

GEICO v. Ananguard (Index #: 16313/11)(Sup. Ct. Nassau Co. 2012)

At the end of the day, a Nassau County Supreme Court justice (Sher, J.S.C.), following the reasoning of Judge Murphy in Upper East Side Surgical v. State Farm Ins. Co., found that PHL 230-d, 2998-3 and Ed. Law 6530(48), granted an OBS  facility the right to perform office based surgical services.  Based upon this factual predicate, the Court then found, that this type of facility may collect no-fault benefits (65-3.16[a][12]), and may bill for medical necessary treatment.  Ins Law 5102(a)(1).

As such,Justice Sher 0concluded that an office based OBS does not need to possess an Article 28 license.   (10 NYCRR 86-4.40).

As to reimbursement, the Court held that 11 NYCRR 68.5(b) was the barometer of reimbursement.  In my mind, that would be the PAS code of an Article 28 in the same or adjacent geographical region.

Personally, I like the allure of Plaintiff’s arguments.  The problem, however, is that 5102(a)(1) is so broad as to who could be compensated for rendered services.

The attorneys were:  Plaintiff: Spina’s office.  Defendant: John Belesi, Esq of Abrams Festerman

Denial and EOB is sufficient to preserve fee schedule defense

W.H.O. Acupuncture, P.C. v AIG Auto Ins., 2012 NY Slip Op 50755(U)(App. Term 2d Dept. 2012)

“Contrary to plaintiff’s sole contention, defendant’s denial of claim forms and the accompanying explanation of benefit forms were sufficient to apprise plaintiff that defendant was partially paying and partially denying its bills on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Accordingly, the order is affirmed”

I have to wonder if a “you failed to explicitly ask for judicial notice” argument would have worked?  It seems to be the flavor of the year at this Court.

The failure to affirmatively seek judicial notice of the fee schedule (again) proves fatal to a motion for summary judgment

MIA Acupuncture, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 21480 (App. Term 2d Dept. 2012)

“With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant’s claims examiner stated that these claims underwent a “fee schedule review” resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant’s contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.”

The dissent.  I think we saw this in a prior dissent from Golia, J., but I think it probably makes sense.

“An advocate before any court need not supply it with physical copies of the laws upon which an argument is based to ensure that those particular laws are taken under consideration by this court. An advocate need only recite an argument involving a certain law; an attorney need only bring the relevant law to the attention of a court. Indeed, here it is enough that defendant alleged that the fee charged by plaintiff exceeded the relevant rates set forth in the fee schedule as prescribed by law. As such, I would remit this specific issue back to the lower court for a determination of the motion as to whether the proper fees were charged under the workers’ compensation fee schedule for the services rendered from May 31, 2007 through August 27, 2007, and whether appropriate payment was made thereon. I would also advise the motion court that it is obligated to take notice of the workers’ compensation fee schedule and all New York laws and regulations pertaining thereto.”

More MUA – this one is over the top

Flatbush Chiropractic, P.C. v Metlife Auto & Home, 2012 NY Slip Op 50541(U)(Civ. Ct. Kings Co. 2012).

The Plaintiff, Dr. Super’s brother runs a law firm about 2 floors up from me in my building here in Garden City.  His firm probably handles the lion’s share of his MUA enterprise.  I had a conversation with one of the attorneys who told me that Dr. Super does not believe in the fee schedule for MUA.  Civil Kings, true to form, never surprises me.

There are three passages from this case that intrigue me.  I am ignoring the medical necessity portion of this opinion because that is a whole different issue.

Passage one: “Defendant’s claims examiner testified that pursuant to the Workers Compensation Board chiropractors should only be compensated at a rate of 68.4% of the Fee Schedule. Through the testimony of Dr. Super, Plaintiff refuted this position stating that the Fee Schedule makes no such distinction.”

Passage two: “The Court takes judicial notice of an opinion letter (dated August 14, 2009) from Kenneth J. Munnelly, General Counsel of the Workers’ Compensation Board, which concludes that chiropractors who perform MUAs should be compensated at a rate of 68.4% of the allowable rate for medical doctors who perform the same procedure given the relative experience and training of a medical doctor versus that of a licensed chiropractor.”

So, now that it has been established that Dr. Super is greedy, you would think it would end here.  Nope.

Passage three: “Also at issue was the applicability of Ground Rules 5 and 12 of the Fee Schedule. Ground Rule 5, the multiple procedure rule, stands for the proposition that when multiple procedures are performed payment for the first procedure is paid at 100% and payment for additional procedures is reduced by 50%. Ground Rule 12(d), which Defendant applied, covers the apportionment of payment between two attending surgeons. Here, Defendant reduced Plaintiff’s bill according to Ground Rules 5 and 12. Plaintiff argued that Ground Rule 5 does not apply to MUAs because MUAs of the shoulders, hips, and cervical, thoracic, and lumbar spine are each distinct, stand-alone procedures involving separate body parts and as a result it was not appropriate to reduce payment pursuant to Ground Rule 5. Dr. Super compared MUAs to regular chiropractic manipulation procedures, where each part of the spine is billed as a separate and distinct procedure. Dr. Super also stated that Ground Rule 12 does not apply because according to the “Introduction and General Guidelines” of the Fee Schedule and Modifier 62, each chiropractor is entitled to separate and full [*4]payment for their services when two chiropractors work together as primary chiropractors and perform distinct parts of a procedure. Dr. Super maintained that both he and Dr. Klass are entitled to 100% of the fee billed because MUA guidelines require MUAs to be performed by two doctors, and here both he and Dr. Klass were co-attending chiropractors who each performed co-primary functions throughout the MUAs which entitled them each to full payment for the procedures independent of each other.The Court agrees and credits Dr. Super’s testimony and finds that the Plaintiff did not bill in excess of the Fee Schedule. Dr. Super has performed and billed MUAs for the past thirteen years. He was trained in the Fee Schedule by certified coding experts and has conducted research on the Fee Schedule in order to ensure that he bills according to the services performed and pursuant to the Fee Schedule. As the treating chiropractor, Dr. Super is in the best position to assess the treatment rendered and bill accordingly. Dr. Super’s testimony that each of the MUAs he performed are separate and distinct procedures coupled with the fact that MUA guidelines mandates two chiropractors justifies full compensation for each chiropractor.”

It is comical.  The court established that Dr. Super does not acknowledge the validity of the fee schedule and trims down his billing by about 50% at least.  After this, the Court finds Dr. Super to be a coding expert and allows him to ignore the 50% ground rule and multiple surgeon ground rule.

Falso in uno, falso in omnibis?  PJI 1:75 anyone?

Just remember this adage: “Pigs get fat and hogs get slaughtered.”

Renewal granted and Plaintiff loses.

Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co., 2012 NY Slip Op 50491(U)(App. Term 1st Dept. 2012)

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.

This was my case.

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”