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.”
15 Responses
Too bad you didn’t review the medical necessity part of the decision. That’s where I got my laughs.
I always love Zuppa on MUA.
I’d pay to see you and Attorney Super stuck in the same elevator staring at the floor.
What a joke, but does the fee schedule anywhere state that specific language that chiropractor’s should only be compensated at a rate of 68.4% of the Fee Schedule?
I love Zuppa. He’s like Bull from Night Court.
I just took a drive through the Coney Island/Sheep’s Head Bay area. I saw them. Out on the side walks and board walks. The anguished crys of patients as they were smothered with filthy rags soaked in cheap vodka. Those that had the temerity to say “I’m not out yet” were promptly clunked with a mallet on the head.
Then the bloody chiros went to work. A crunch here. A jerk there and everywhere that sickening cracking sound. 10 seconds per patient. 3 more seconds then a no fault IME. On and on it went.
It reminded me of the makeshift hospitals during the Civil War where they used to hack off arms and legs.
Then the perversion began and was far more then my eyes which have seen the pain and the slow parade of tears — it was more then even I could take. I vomited out of my car window and sped off.
I will never go west of Nassau County again.
Isn’t Nassau County a great place to practice?
Oh I don’t have to practice J.T. I know how to do it.
From Herbert Street to Franklin Avenue…
The one good thing is that the Court acknowledged the 68.4 percent reduction for chiropractors. While most no-fault arbitrators follow this rule, I always thought there would be a problem with the admissiblity of Munnelly’s letter in a Court case. Now, at least other courts will follow the 68.4 percent reduction.
This decision also proves that judges as opposed to Arbitrators have no idea how to apply the fee schedule.
RE Mitch Lustig
Of course the Arbitrators attempt to apply the fee schedule more than the courts; they all used to be insurance company lawyers!!!!
My issue is that they are NOT applying the fee schedule, they are applying the General Counsel’s mathmatical survey of the coversion factors and his opinion as to what a survey of those numbers WOULD show; he never showed his math.
If the Board wanted to adopt that reduction, they could have easily added such a conversion factor into the fee schedule when they updated the fee schedule in 2012.
Casus omissus pro omisso habendus est
It’s a shame that Mitch and Coolbreez have to waste their legal talent on an audience comprising of the likes of myself and Rogak.
coolbreeze’s comments are better written then my Appellate Briefs.
It’s a shame that the logic displayed by coolbreeze is often wasted on a legal system that sometimes follows an agenda rather then the law.
The flipside of NYcoolbreez’s argument, that the 68.4% reduction is not in the Fee Schedule, is the insurance companies’ arguments that MUA is not in the Chiropractic Fee Schedule. Our office continually had to show that the Workers’ Comp Bd allowed chiropractors to perform and bill for MUA, even though MUA was not in the Chiropractic Fee Schedule.
The court following the Munnelly Letter is no surprise. Agency Opinion Letters get followed by courts all the time. As for Munnelly’s math, the multiplier for evaluation and management, medicine and physical medicine is 8.45 for doctors and 5.78 for chiropractors. 8.45 * 68.4% = 5.78.
The multiplier for radiology is 52.90 for doctors and 36.20 for chiropractors. 52.90 * 68.4% = 36.18. So, Munnelly just used the same ratio when chiropractors bill from the “surgery” section of the Fee Schedule.
Allow me to retort.
“Chiropractic fee schedule” is a misnomer, just like pink slime.
The argument that a service is not listed in the “Chiropractic fee schedule” presupposes there is a discrete fee schedule for chiropractors. The reality is “Chiropractic fee schedule” is nothing more than a collection of codes commonly used by chiropractors printed in a little book that chiro’s, can purchase rather than having to buy the complete fee schedule.
The fee schedule clearly states in the GENERAL ground rules merely because an item is listed under a particular schedule does not mean it’s use is limited by that specialty, rather the practitioner is to use the code that best describes the procedure/services rendered.
Who the hell is Munnelly. Was he the guy riding with President Kennedy at the assassination? He survived I think and then went on to write some letter.