ARBITRATION AWARD. Hearing(s) held on 12/08/2016, 05/03/2017 Declared closed by the arbitrator on 05/03/2017

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Pugsley Medical Care, PC. (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. Insurer's Claim File No NAIC No ARBITRATION AWARD I, Preeti Priya, 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: Assignor [SM] Hearing(s) held on 12/08/2016, 05/03/2017 Declared closed by the arbitrator on 05/03/2017 Dejon Delpino, Esq., from Field Law Group, P.C. participated in person for the Applicant Brian Boxler, Esq., from Rivkin & Radler LLP participated in person for the Respondent The amount claimed in the Arbitration Request, $ , was NOT AMENDED at the oral hearing. Stipulations WERE NOT made by the parties regarding the issues to be determined. Summary of Issues in Dispute Whether Applicant established entitlement to No-Fault compensation for diagnostic tests provided to assignor; Whether Respondent made out a prima facie case of lack of medical necessity and, if so, whether Applicant rebutted it. Whether Respondent established that Applicant billed in excess of the fee schedule. Page 1/8

2 4. Findings, Conclusions, and Basis Therefor Applicant was represented by Dejon Delpino, Esq., who presented oral arguments and relied upon documentary submission. Brian Boxler, Esq., appeared on behalf of Respondent, who presented oral arguments and relied upon a documentary submission. I have reviewed the submissions and documents contained in the American Arbitration Association's ADR Center. These submissions constitute the record in this case. The dispute arises from the underlying automobile accident of December 25, 2013 in which the Assignor, a 30 year old female, was a driver. Thereafter, Assignor was evaluated by Lester Nadel, MD. Assignor underwent conservative care including chiropractic treatment. He also underwent various diagnostic tests. On January 27, 2015, manual muscle (MMT) and range of motion (ROM) tests were performed. Applicant submitted the claims to Respondent for the tests and physical therapy for dates of service March 28 to April 5, 2014; Respondent partially paid the claims and denied the remainder. Preliminarily, after reviewing the record and evidence presented, I find that Applicant established a prima facie case of entitlement to reimbursement of its claim. Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.3d 742, 774 N.Y.S.2d 564 (2nd Dept. 2004). January 27, 2015: ROM/MMT As per Section 5108 of the New York State Insurance Law, provider shall not exceed the charges permissible under the schedules prepared and established by the chairman of the Workers' Compensation Board. The rates charged by Applicant must be in accordance with Insurance Law The tests in dispute were performed subsequent to the effective date, April 1, 2013, of the Fourth Amendment to Regulation 68-C. Sub division (g) (1) of No-Fault Regulation 65-3 now states that proof of fact that the amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for claimed medical services under any circumstances: (i) when the claimed medical services were not provided to an injured party; or (ii) for those claimed medical services that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers. I take judicial notice of the New York State Workers' Compensation Fee Schedule. See Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 20 (2d Dept. 2009); LVOV Acupuncture, P.C. v. Geico Ins. Co., 32 Misc.3d 144(A), 2011 NY Slip Op 51721(U) (App Term 2d, 11th & 13th Jud Dists. 2011); 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). Applicant billed four times for MMT using CPT code and five times for ROM, with CPT code Respondent's denial states that the claim was partially paid and Page 2/8

3 denied based upon the fee schedule. The denial states: "FSL- Provider's fee exceeds the maximum allowance under the applicable fee schedule and is reduced accordingly. As per Section 5108, of the New York State Insurance Law, providers shall not exceed the charges permissible under the schedules prepared and established by the Chairman of the Workers' Compensation Board. PPT- "Since range of motion testing (95851) and manual muscle testing (95831) are performed as part of a physical performance test or measurement (e.g., musculoskeletal, functional capacity), only code should be reported. Codes and should not be separately reported, as both services are designated as separate procedures and, as such, are considered to be integral components of the physical capacity test (97750)." SR- "Based on the information submitted, the procedure code has been changed to more accurately reflect the services provided." Respondent in its denial changed the billing to a single CPT code and paid Applicant $91.44 for this date of service. Workers' Compensation Medical Fee Schedule, which governs No-Fault insurance under Insurance Law 5108(a), defines CPT Code as "Range of motion measurements and report (separate procedure); each extremity excluding hand or each trunk section (spine)." CPT code is for "Muscle testing, manual (separate procedure) with report, extremity (excluding hand) or trunk". Respondent submitted an Affidavit by Stephanie Atkins-Brown, CPC, who is a member of the American Association of Professional Coders, which is the professional association that oversees the training and education of individuals holding a CPC designation. She "reviewed and analyzed: (i) the billing and associated treatment documentation that was submitted to GEICO by the healthcare provider seeking reimbursement for computerized, digital, or automated range of motion (ROM") and muscle strength testing ("MT") that.1,i11111 l1nneously were performed on the eligible injured person; and (ii) additional documents and information associated with the care and treatment provided to the eligible injured person on the date of service in question." She stated "The Centers for Medicare & Medicaid Services ("CMS") has developed the National Correct Coding Initiative ("NCCI") to promote national correct coding methodologies and prevent improper coding from leading to inappropriate payment. In patt, CMS developed its coding policies based the American Medical Association's ("AMA") CPT Manual and a review of current coding practices. One of the main goals of the NCCI is to prevent unbundling of comprehensive codes." She found "In this case, the healthcare provider independently billed GEICO for ROM testing as multiple charges under CPT code and for MT testing as multiple charges under CPT code 95831, despite the fact that those tests were part a larger, more comprehensive service more appropriately characterized as PPT, which must be billed under CPT code By improperly "unbundling" the tests into separate codes, the healthcare provider attempted to seek reimbursement many times greater than it would be entitled to if it had properly billed." Page 3/8

4 She noted "In this context, when a physical performance test is performed, the proper rep01iing code for billing purposes is CPT code Described as "Physical performance test or measurement (e.g., musculoskeletal, functional capacity), with written report, each 15 minutes," CPT code identifies a number of different types of tests and measurements of physical performance of a select area or number of areas." She relied upon The National Correct Coding Initiative and stated "edits also specifically recognize this insofar as: (i) CPT Codes 95851/95831 are both considered to be components of CPT Code and therefore, cannot be billed independently when the services are performed at the same time, and (ii) CPT Code is considered to be a component of CPT Code when billed together and not separately billable, and vice versa. In other words, when a healthcare provider simultaneously performs ROM/MT testing on a patient, the services arc by definition a physical performance test, which is to be billed using CPT Code " I was not provided the relevant sections of The National Correct Coding Initiative. I rely upon the Workers' Compensation Board Fee Schedule in determining that there are two codes separately listed for Range of Motion and Manual Muscle Tests. There are no Ground Rules in the Fee Schedule or any other information regarding the billing of these two tests. I am not persuaded by Respondent or Ms. Atkins-Brown. Though there is an Affidavit to explain Respondent's defense, the Fee Schedule is clear and upon a plain reading of Fee Schedule, the charges submitted under the CPT codes are for testing of a particular body part regardless of the number of planes tested. I have consistently held that these codes are for testing of a particular body part regardless of the number of planes tested. The relative value assigned to code 95851service is 5.41, which multiplied by the Region IV conversion factor $8.45, yields a sum of Respondent should have paid $45.71 as follows: once for the knee and cervical and lumbar spine for a total of $ The relative value assigned to code 95831service is 5.16, which multiplied by the Region IV conversion factor $8.45, yields a sum of $ Code limits allowable charges to one unit per body part tested at $43.60 per body part. Respondent should have paid $43.60 as follows: once for the neck and knee for a total of $ Applicant should have been paid $ for the range of motion and manual muscle tests. Since Respondent paid $91.44 for the date of service, Applicant is owed $ March 28 to April 15, 2014 Since Respondent's denials were timely, it was within its rights to assert that further treatment was medically unnecessary. See Liberty Queens Medical, P.C. v. Liberty Mutual Insurance Co., 2002 NY Slip Op 40420(U), 2002 WL (App. Term 2d & 11th Dists. June 27, 2002). Page 4/8

5 Respondent denied payment on the basis of a physical examination, at its request, conducted by Robert Y. Pick, M.D. on March 10, Thereafter, no fault orthopedic benefits were terminated effective March 21, He reviewed medical records which included progress notes, diagnostic test results and evaluation reports. He then outlined the treatment of the Assignor. After Dr. Pick's physical examination of Assignor, he opined that there was no need for further orthopedic care and physical therapy. An IME doctor must establish a factual basis and medical rationale for his asserted lack of medical necessity of further health care services. E.g., Ying Eastern Acupuncture, P.C. v. Global Liberty Insurance, 20 Misc.3d 144(A), 2008 NY Slip Op 51863(U), 2008 WL (App. Term 2d & 11th Dists. Sept. 3, 2008). If he does so, it becomes incumbent on the claimant to rebut the IME review, see AJS Chiropractic, P.C. v. Mercury Ins. Co., 22 Misc.3d 133(A), 2009 NY Slip Op 50208(U), 2009 WL (App. Term 2d & 11th Dist. Feb. 9, 2002), because the ultimate burden of proof on the issue of medical necessity lies with the claimant. See Insurance Law 5102; Shtarkman v. Allstate Insurance Co., 2002 NY Slip Op 50568(U), 2002 WL (App. Term 9th & 10th Jud. Dists. 2002) (burden of establishing whether a medical test performed by a medical provider was medically necessary is on the latter, not the insurance company). The insured or the provider bears the burden of persuasion on the question of medical necessity. Bedford Park Medical Practice P.C. v. American Transit Ins. Co., 8 Misc.3d 1025(A), 806 N.Y.S.2d 443 (Table), 2005 NY Slip Op (U), 2005 WL (Civ. Ct. Kings Co., Jack M. Battaglia, J., Aug. 12, 2005). This burden of proof is properly placed on a claimant health care provider because presumably it is in possession of the injured party's medical records. Applicant did not submit a rebuttal addressing the IME reports which Respondent relies on. Dr. Pick listed limited range of motion of the cervical and lumbar spine as well as left shoulder. However, there is no discussion in the IME report of the decreased range of motion and the cervical spine as well as the tenderness to palpation. I find as the Appellate Division did in Torres v. Garcia, 59 AD3d 705, (App. Div 2d 2009) "The defendants' orthopedic surgeon failed to explain or substantiate, with objective medical evidence, the basis for his conclusion that the restrictions in cervical motion were self-imposed." Upon careful review of the record and oral arguments, I find that the evidence weighs in favor of Applicant. Applicant has sustained its burden of proof by a preponderance of credible evidence. Consequently, Applicant is awarded its claim for these dates of service. Based on the foregoing Applicant is awarded $ Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, Page 5/8

6 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. Medical From/To Claim Amount Status Pugsley Medical Care PC 01/27/14-04/15/14 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 12/29/2015, which is a relevant date only to the extent set forth below.) Applicant's award shall bear interest at a rate of two percent per month, calculated on a pro rata basis using a 30-day month from the date payment became overdue to the date of the payment of the award pursuant to 11 NYCRR (a). The end date for the calculation of the period of interest shall be the date of payment of the claim. General Construction Law 20 ("The day from which any specified period of time is reckoned shall be excluded in making the reckoning.") C. Attorney's Fees Page 6/8

7 The insurer shall also pay the applicant for attorney's fees as set forth below Respondent shall pay Applicant a separate attorney's fee, in accordance with 11 NYCRR (d). Since the within arbitration request was filed on or after February 4, 2015, this case is subject to the provisions promulgated by the Department of Financial Services in the Sixth Amendment to 11 NYCRR 65-4 (Insurance Regulation 68-D). Accordingly, the insurer shall pay the applicant 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 New York I, Preeti Priya, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 05/09/2017 (Dated) Preeti Priya 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 7/8

8 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: ca27def7aed77503cab4bbbaef58a544 Electronically Signed Your name: Preeti Priya Signed on: 05/09/2017 Page 8/8