ARBITRATION AWARD. Marc L. Schwartz, Esq. from Marc L. Schwartz P.C. participated in person for the Applicant

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1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Lakeview Chiropractic PC (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Michael B. Parson, the undersigned arbitrator, designated by the American Arbitration Association pursuant to the Rules for New York State No-Fault Arbitration, adopted pursuant to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and having heard the proofs and allegations of the parties make the following AWARD: Injured Person(s) hereinafter referred to as: JR Hearing(s) held on 06/19/2017 Declared closed by the arbitrator on 06/19/2017 Marc L. Schwartz, Esq. from Marc L. Schwartz P.C. participated in person for the Applicant Shawn Donnelly, Esq. from The Office of Printz & Goldstein participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ , was NOT AMENDED at the oral hearing. Stipulations WERE made by the parties regarding the issues to be determined. The parties stipulated to the timely service of all bills and denials and to Applicant's prima facie showing of entitlement to reimbursement. 3. Summary of Issues in Dispute The sole issue to be determined is whether Applicant correctly reported its fee for cervical digitalized (computerized) radiographic mensuration analysis (CRMA) under the applicable provisions of the New York Workers' Compensation Medical Fee Schedule. Page 1/7

2 4. Findings, Conclusions, and Basis Therefor JR, a male who was then 36 years old, was involved in an automobile accident on 6/3/16 while a pedestrian. He sustained various injuries and, on 7/18/16, underwent a cervical CRMA study administered by the Applicant. Reimbursement for the films was fully denied because the By Report (BR) code utilized does not appear in the Chiropractic Fee Schedule. The Applicant reported CPT Code (unlisted radiographic procedure), which is a BR code in the Radiology section of the Medical Fee Schedule. The Radiology section in the Chiropractic Fee Schedule has no specific code for CRMA (nor does any other part of the fee schedule) and contains only one BR code. That code, relates to an unlisted ultrasound procedure and is not appropriate to use for CRMA. There is no question that the type of testing performed is permitted within the licensing restrictions of chiropractors in the State of New York. This type of denial is often seen when acupuncturists report codes from various chapters in the fee schedule, most often evaluation and management codes. Because there is no acupuncture section in the fee schedule there is no reason to preclude an acupuncturist from being compensated for an examination, as long as the proper conversion factor is utilized. I see no reason why, just because a particular code is not listed in the Chiropractic Fee Schedule, a chiropractor cannot use a relative value (RV) for a code listed in another portion of the Medical Fee Schedule, as long as the proper conversion factor is used. Here there is no RV due to the fact that the code utilized is a BR code. The various fee schedule ground rules that address BR codes are identical in each chapter. They all read: Procedures Listed without Specified Relative Value Units: By Report (BR) items: "BR" in the relative value column represents services that are too variable in the nature of their performance to permit assignment of relative value units. Fees for such procedures need to be justified "by report." Pertinent information concerning the nature, extent, and need for the procedure or service, the time, the skill, and equipment necessary, etc., is to be furnished. A detailed clinical record is not necessary, but sufficient information shall be submitted to permit a sound evaluation. It must be emphasized that reviews are based on records; hence the importance of documentation. The original official record, such as operative report and hospital chart, will be given far greater weight than supplementary reports formulated and submitted at later dates. For any procedure where the unit value is listed in the schedule as "BR", the physician shall establish a relative value unit consistent in relativity with other relative value units shown in the schedule. The insurer shall review all submitted Page 2/7

3 "BR" unit values to ensure that the relativity consistency is maintained. The general conditions and requirements of the General Ground Rules apply to all "BR" items. [emphasis added] The Ground Rules provide an initial affirmative duty that rests with the provider but a burden is also placed on the insurer. The Ground Rules' mandate of an affirmative duty on the provider cannot add to the Applicant's prima facie establishment of entitlement to reimbursement. That burden remains simply that a provider must show that it submitted a bill and that the bill was not fully paid or denied within thirty days of its receipt. Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3 d 498, 14 N.Y.S.3 d 283 (2015). In the context of litigation, given the Applicant's limited burden, the carrier must provide a basis for any defense it raises and show that it complied with its obligation under the Ground Rule. Here, where the Respondent simply issued a complete denial without any basis other than the location of the chosen CPT code in the fee schedule, the Respondent made no effort to determine whether the actual fee reported was justified. In order to raise a defense to support no reimbursement whatsoever based on the Applicant's lack of support for its BR billing, I find that the Respondent has the duty to establish that it utilized all procedures necessary to determine whether the reported fee was appropriate. A carrier cannot simply deny all reimbursement because the provider failed to submit adequate proof with its bill or that it ignored any submitted proof because it didn't like where the code came from. Just as in the case of an MRI where a provider wants to see the actual films before issuing payment or a denial, the process set forth in 11 NYCRR (b) and 3.6(b) provides the mechanism to seek the additional verification necessary to allow the carrier to make a reasoned determination whether and how much to reimburse. Here, the Respondent chose its faulty "wrong part of the fee schedule" defense and did not seek additional verification or even make a partial payment. In Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3 d 135(A), 2017 NY Slip Op 50101(U), (App Term 2d, 2 d, 11 th, and 13 th Dists. ( 2017) the Court wrote: 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 in surer 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 it s receipt of the claim forms, request "any additional verification required by the insurer to establish proof of claim" (11 NYCRR [b]). As defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in Page 3/7

4 order to review plaintiff's claims for services billed under codes and of the workers' compensation fee schedules, defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover for services rendered under those codes (see Gaba Med. P.C. v. Progressive Specialty Ins. Co., 36 Misc. 3 d 139 [A], 2012 NY Slip Op 51448[U] [App Term, 2 d Dept, 2 d, 11th & 13 th Jud Dists 2012]... Bronx Acupuncture and Gaba both make it clear that it is incumbent on a carrier not to simply deny a claim involving BR codes on fee schedule grounds but rather to seek additional verification in accordance with 11 NYCRR (b) and (b). With nothing having been offered by either party to establish whether the BR billing was appropriate, because the burden of establishing any defense is on the Respondent, I find that the Applicant must be reimbursed as billed. Accordingly, the denial is reversed. 5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, I do NOT impose the administrative costs of arbitration to the applicant, in the amount established for the current calendar year by the Designated Organization. 6. I find as follows with regard to the policy issues before me: The policy was not in force on the date of the accident The applicant was excluded under policy conditions or exclusions The applicant violated policy conditions, resulting in exclusion from coverage The applicant was not an "eligible injured person" The conditions for MVAIC eligibility were not met The injured person was not a "qualified person" (under the MVAIC) The applicant's injuries didn't arise out of the "use or operation" of a motor vehicle The respondent is not subject to the jurisdiction of the New York No-Fault arbitration forum Accordingly, the applicant is AWARDED the following: A. Page 4/7

5 Medical From/To Claim Amount Status Lakeview Chiropractic PC 07/18/16-07/18/16 Awarded: $ $ Total $ Awarded: $ B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 11/29/2016, which is a relevant date only to the extent set forth below.) Interest shall run from the above noted filing date and end on the date of payment of the award. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below Respondent shall pay an attorney's fee in accordance with 11 NYCRR (d). D. The respondent shall also pay the applicant forty dollars ($40) to reimburse the applicant for the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award. This award is in full settlement of all no-fault benefit claims submitted to this arbitrator. State of New York SS : County of Suffolk I, Michael B. Parson, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 06/23/2017 (Dated) Michael B. Parson Page 5/7

6 IMPORTANT NOTICE This award is payable within 30 calendar days of the date of transmittal of award to parties. This award is final and binding unless modified or vacated by a master arbitrator. Insurance Department Regulation No. 68 (11 NYCRR ) contains time limits and grounds upon which this award may be appealed to a master arbitrator. An appeal to a master arbitrator must be made within 21 days after the mailing of this award. All insurers have copies of the regulation. Applicants may obtain a copy from the Insurance Department. Page 6/7

7 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 69680c b3c0b24f88052ef5e7b Electronically Signed Your name: Michael B. Parson Signed on: 06/23/2017 Page 7/7