ARBITRATION AWARD. Patricia Doherty from Law Offices of Gabriel & Shapiro, 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: New Future Acupuncture PC (Applicant) - and - State Farm Fire and Casualty Company (Respondent) AAA Case No Applicant's File No. GS Insurer's Claim File No S-354 NAIC No ARBITRATION AWARD I, Walter Winning, 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 Hearing(s) held on 07/06/2017 Declared closed by the arbitrator on 07/06/2017 Patricia Doherty from Law Offices of Gabriel & Shapiro, LLC. participated in person for the Applicant Matthew Kelly from Richard T. Lau & Associates participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 1,073.12, was AMENDED and permitted by the arbitrator at the oral hearing. Applicant concedes that $ remains in dispute. ($ $424.50). Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute a) Was the claim for the initial evaluation properly denied? b) What is "cupping" and how should it be billed? Page 1/5

2 4. Findings, Conclusions, and Basis Therefor I have reviewed the documents contained in the Electronic Case Folder as of the date of the hearing. The case was decided based upon the documents reviewed, and the arguments made by the representatives for the respective parties. No witnesses testified for either side. The Assignor, a 31-year-old male, was involved in a vehicular accident on May 13, 2015, and was examined by J. Zheng, L. Ac. one day later. He reported complaints of pain in the left knee, neck, and lower back. Mr. Zheng determined that the patient was suffering from Qi and blood stagnation, and initiated a treatment plan based upon acupuncture. Handwritten acupuncture treatment notes confirm that the patient appeared regularly, but provide few details. Applicant challenges the denial of its fee for an initial evaluation, and the reduction of its fees for "cupping" through July 20, All other claims have been withdrawn. Applicant billed $80.02 for an initial evaluation, and also billed for treatment administered on that date. Respondent denied the claim for an initial evaluation performed on May 14, The denial letter states that since the procedure is not covered by a code, no fee is allowed. Applicant has reduced the claim to $54.74, and argues that this amount should be granted. The initial report suggests that Mr. Zheng performed a thorough TCM evaluation. No fee is provided under the Fee Schedule for any services provided by an acupuncturist. It appears fundamental to me that a complete TCM evaluation must be conducted before acupuncture treatment is initiated. Accordingly, Applicant is awarded $54.74 for the initial evaluation. Applicant billed $45 for each session of cupping, and Respondent reduced the fee to $16.70 per session. Applicant seeks reimbursement for 15 sessions of cupping. (15 x $28.30). Applicant relies upon the decision in Bronx Acupuncture Therapy v. Hereford Ins. Co., 2017 NY Slip Op (App. Term 2d, 11 th & 13 th Dists. 2017). The Appellate Term did not grant summary judgement to a carrier who had not sought to expand upon the services billed for cupping through the verification process. They have also submitted a number of arbitration decisions where they prevailed. Respondent argues that their Fee Schedule reduction of a "by report" code has been upheld in a number of cases. They have submitted numerous prior arbitration decisions where they prevailed. Both sides agreed that there are many arbitration decisions that define the fees for cupping. My own review finds numerous prior decisions that provide for reimbursement from 0 to $50. per session for cupping procedures. I have reviewed numerous prior awards to determine what is cupping, and for what fee should it be provided. I found the reasoning of Arbitrator Weisman persuasive in Innovative Health Care v. Geico, AAA No (E. Weisman, Arb. April 2017), affirmed F. Godson, Master Arb. AAA No (F. Godson, Master Arb. July 2017). This was a case where the carrier had not availed itself of the verification process to further delve into the cupping procedure. The billed code was CPT No , which is a "by report" code for an unlisted physical therapy modality. Arbitrator Weissman determined that cupping was reimbursable, but that it was analogous to acupuncture treatment with needles. (The time dedicated to treatment is the same). She finds that cupping should be reimbursed in the same way that acupuncture treatment is, and concludes that $20.52 is the correct amount per session. (This is the amount provided under CPT Code for acupuncture with needles, provided without electrical stimulation). I find her reasoning particularly relevant when she argues that acupuncturists believe that they can avoid the Fee Schedule by billing for cupping as an unlisted procedure, but that the fees charged are arbitrary and capricious. See Innovative Health Care v. Geico, supra at page 4. Applying this reasoning to the facts of this case means that an additional $3.82 is owed per session of cupping. Page 2/5

3 ($ $16.70). Applicant is entitled to an additional $57.30 (15 x $3.82) for cupping provided. The total award is $ 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. Medical From/To Claim Amount Amount Amended Status New Future Acupunct ure PC 05/14/15-07/20/15 Awarded: $1, $ $ Total $1, Awarded: $ B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 08/25/2016, which is a relevant date only to the extent set forth below.) Since all claims were timely processed, simple interest begins on 08/25/16. Page 3/5

4 C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below As this matter was filed 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 newly promulgated 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 Nassau I, Walter Winning, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 08/01/2017 (Dated) Walter Winning 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 4/5

5 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 0b8c70f644d0d63ba846f79772a9f2c3 Electronically Signed Your name: Walter Winning Signed on: 08/01/2017 Page 5/5