ARBITRATION AWARD. Malgorzatta Rafalko, Esq. from Baker Sanders, LLC participated in person for the Applicant

Transcription

1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Co-op City Chiropractic P. C. (Applicant) - and - Allstate Property and Casualty Insurance Company (Respondent) AAA Case No Applicant's File No. BS Insurer's Claim File No NF 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: LS Hearing(s) held on 03/24/2017 Declared closed by the arbitrator on 03/24/2017 Malgorzatta Rafalko, Esq. from Baker Sanders, LLC participated in person for the Applicant Brian Kretenstein, Esq. from Peter C. Merani Esq. participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ , was AMENDED and permitted by the arbitrator at the oral hearing. The claim was amended to $69.36 to bring it into compliance with the fee schedule and to reflect payments made. Stipulations WERE made by the parties regarding the issues to be determined. The parties stipulated to the timely service of all bills and denials. Page 1/7

2 3. Summary of Issues in Dispute The issues to be determined are whether Applicant's is subject to the terms of a PPO contract, whether Applicant's billing is further limited in accordance with the so called "8 Unit Rule", and medical necessity of chiropractic treatment for which reimbursement was denied following an IME and global denial. 4. Findings, Conclusions, and Basis Therefor LS, a female who was then 49 years old, was involved in an automobile collision on 9/24/14 while driving. She sustained various injuries and, obtained chiropractic treatment from the Applicant from 12/3/14 through 12/15/14. Reimbursement was partially denied predicated on a PPO defense in addition to an 8 Unit defense. Prima Facie Entitlement to Reimbursement Although not stipulated to, Applicant's establishment of its prima facie entitlement to reimbursement is not contested. All of the denials in issue admit receipt of the bills and therefore serve to establish that the bills were in fact presented. PPO and 8 Unit Reduction Applicant amended its bills for the 11/14/14 through 12/18/14 dates of service to reflect a maximum billing of $46.24 per day for treatment rendered in Region IV pursuant to Chiropractic Ground Rule 3, thereby reducing its claim to $55.33 over and above the payments already tendered by the Respondent. Respondent asserts that there is a PPO agreement that binds the Applicant to accept no more than 10% of the rates permitted in the New York Workers' Compensation Chiropractic Fee Schedule and further that the sums due are to be further reduced to account for concurrent care rendered by another provider that overlapped treatment rendered by the Applicant. Respondent therefore contends that the amounts reimbursed are correct. This case was heard at the same time as a companion matter involving LS and all the same parties and PPO issues. That matter bears AAA Case No I have utilized documents in both case files in making my determination in both cases because, to the extent that anything necessary to determine the issues is not contained in one file, it would result in inconsistent awards and would be inequitable to ignore proof that is before me in the other. It is well settled that where a PPO agreement to which a provider is a party is shown to exist, that provider is bound by the terms of that agreement with respect to its fees and that an Applicant seeking No-Fault reimbursement, as assignor, cannot take a position with a No Fault carrier that it would be unable to assert with its patient's medical carrier. See, e.g., American States Ins. Co. v. Huff, 119 A.D.3 d 478 (First Dep't. 2014). Page 2/7

3 I have carefully reviewed the documents in the ECFs and find that Respondent has conclusively established the existence of a PPO contract with MultiPlan, Inc. and the Applicant and its principal. The terms of the contract as well as a letter from a MultiPlan account executive, establishes that the Applicant is only entitled to reimbursement in a sum that is 10% below the state fee schedule. I find that because they terms broadly refer to pricing being "below state fee schedule", all fee schedule ground rules also apply in determining Applicant's maximum permissible billing rate under the contract. On the two days where there was no treatment by another provider, the Applicant was reimbursed in the sums of $41.61 and $41.62, the latter of which which is 10% less than the Chiropractic Ground Rule 3 maximum 8 Units of $ Therefore, since Applicant amended to the maximum 8 units permitted, the only question that remains is whether treatment by another unrelated provider serves to further reduce Applicant's maximum allowable reimbursement. The ECF reflects that there were four days of overlapping treatment with Greater New York Physical Therapy (Greater NY), i.e., 12/3/14, 12/8/14, 12/9/14, and 12/15/14. The Applicant received $31.22 each for 12/3/14 and 12/9/14 and $31.21 for each of the other two treatment dates, leaving a total of $41.63 in dispute at the PPO rate (including the extra penny owed on the "full" reimbursement of $41.61). On each of these four days of overlapping treatment, Greater NY reported CPT Codes (application of electrical stimulation), (therapeutic exercises to develop strength and mobility) and (application of hot or cold packs). These codes are among those listed in Ground Rule 11 of the Physical Medicine chapter of the Medical Fee Schedule as being limited to 8 relative value units on any given day. On each of the overlapping dates of treatment, the Applicant reported CPT Codes (mechanical traction), and (chiropractic manipulation). These too are listed in Ground Rule 3 of the Physical Medicine Chapter of the Chiropractic Fee Schedule as being limited to 8 relative value units per day. I will continue to refer to this limitation as the "8 Unit Rule". The Respondent proved that there were overlapping visits and payments to Greater NY by virtue of filing all the relevant NF10s and EOBs for both practitioners. The EOBs were very clear in establishing what was paid and what was not, as well as the CPT codes involved. I note that the Applicant rendered its treatment to LS in its office in Nassau County while Greater NY provided its services in New York County. The ECF also reflects that both the Applicant and Greater NY were treating LS for complaints involving her back. There is no question that the codes reported are among those listed in the ground rules and that seemingly Physical Medicine Ground Rules 11 and Chiropractic Ground Rule 3 would require that the reimbursement to a physical therapist and chiropractor treating the same body parts on the same day with the same treatment modalities be limited to eight relative value units. However, the Workers' Compensation Board has said: If a claimant is treating with a chiropractor and physical therapist and they both bill modality CPT code(s) that are subject to the RVU per day limitations in the Fee Schedule, both may not be paid. The carrier may object to the bills based on concurrent Page 3/7

4 care...if the physical therapist and the chiropractor are providing different treatments, it would not be considered concurrent care. The Board also said in response to an inquiry on the same subject prior to an amendment to the section: The proposed changes to the CFS will limit the number of relative value units (RVU) that a chiropractor can bill in one visit. However, pursuant to part 324 of Title 12 NYCRR which will take effect for dates of service on or after December 1, 2010, chiropractors must treat injuries to the neck and mid and low back according to the treatment guidelines for those body parts, which set the number of manipulations and modalities for particular injuries to the neck and back. If a Claimant is treating with a chiropractor and a physical therapist and they both bill the same CPT for modalities in the same body part for the same day, the insurance carrier is not required to pay both bills. None of the codes reported by the Applicant or Greater NY is duplicated in the other's billing. On the basis of the billed codes alone, I cannot find any overlap in treatment modalities, even though some of the same body parts were involved. I reject Respondent's argument that the 8 Unit limitation is a strict limitation that will not allow any of the codes listed in either of the ground rules to exceed a total of eight relative value units by a chiropractor and a physical therapist. The quoted language above makes it eminently clear that such a result was not intended by the Board when the ground rules were promulgated. It also makes no sense that the rules were intended to require a patient to take extra days off from work just to be covered for different treatments by different unrelated providers, especially when the providers clearly have no relationship with each other. Moreover, in order to establish an issue of fact with respect to a defense of concurrent care, the insurer must submit sufficient evidence such as an affidavit from a person with the relevant training and/or educational background to competently assess whether the claims sought payment for treatment actually constitute concurrent care. Ying Eastern Acupuncture, P.C. v. Global Liberty Insurance, 20 Misc.3 d 144(A), 873 N.Y.S.2 d 238 (Table), 2008 N.Y. Slip Op (U), 2008 WL (App. Term 2 d & 11 th Dists. Sept. 3, 2008). Accordingly, the relevant denials are reversed to the extent set forth herein. 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. Page 4/7

5 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 Co-op City Chiropractic P. C. 12/03/14-12/15/14 Awarded: $ $41.63 Total $ Awarded: $41.63 B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 08/12/2016, 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). Page 5/7

6 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. 03/31/2017 (Dated) Michael B. Parson 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: 04285f3403b20ab934b244ea9a0176e2 Electronically Signed Your name: Michael B. Parson Signed on: 03/31/2017 Page 7/7