ARBITRATION AWARD. Steven Miranda 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: XYJ Acupuncture P.C. (Applicant) - and - Geico Insurance Company (Respondent) AAA Case No Applicant's File No. GS Insurer's Claim File No NAIC No ARBITRATION AWARD I, Steven Celauro, 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: SS Hearing(s) held on 04/10/2017 Declared closed by the arbitrator on 04/10/2017 Steven Miranda from Law Offices of Gabriel & Shapiro, LLC. participated in person for the Applicant Christa Varone from Geico Insurance Company 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 is entitled to reimbursement for medical services? This arbitration arises out of medical treatment for the EIP (SS), a 39 year old female, related to injuries sustained in a motor vehicle accident that occurred on 11/19/15. Applicant seeks reimbursement for cupping performed between and Respondent timely denied payment of the services. 4. Findings, Conclusions, and Basis Therefor Page 1/6

2 The only issue before the Arbitrator is whether Applicant billed appropriately for the procedure known as cupping and whether the Respondent has properly denied the claim. Cupping works by reducing the pain in the body by creating a partial vacuum inside cups placed on the skin. Skin is drawn into the cup by a vacuum or by heat, blood stasis is formed, and localized healing takes place. It is mainly performed on the back because there are five meridians on the back. Cupping is mainly recommended for the treatment of pain. Applicant billed for cupping utilizing code 97799, a by-report code in the Physical Medicine section of the Workers' Compensation Fee Schedule. Applicant billed at the rate of $50.00 per session for 6 sessions. The Respondent denied the claims on the basis that there is no allowance for this procedure in the Fee Schedule under the provider's specialty. There were no partial payments made as the Respondent did not make any reimbursement to the Applicant. The Applicant argues that the denial is defective. It well settled that a no-fault insurer is bound by the "four corners of the denial" and "must "stand or fall upon the defense upon which it based its refusal to pay." Todaro v. Geico General Insurance Company, 46 A.D.3d 1086, 848 N.Y.S.2d 393 (3rd Dept. 2007). Moreover, a denial must "promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated." General Accident Insurance Company v. Cirucci, 46 N.Y.2d 862, 414 N.Y.S.2d 512 (1979). The Respondent bases its denial on its position that there is no allowance for cupping under the Fee Schedule and completely denies payment. In essence, the Respondent states that an acupuncturist cannot be reimbursed for cupping. It then undermines its own position by submitting an affidavit of Dr. Steven Schram, L.Ac., D.C. dated which sets forth what he deems to be an appropriate Relative Value Unit for cupping which would calculate to a reimbursement rate of $13.87 per session to be paid to the acupuncturist. The Respondent based its refusal to pay on flawed reasoning and then attempted to remedy the situation by supplying an affidavit which attempts to set forth a valid basis for the denial. Pursuant to Great Wall Acupuncture v. GEICO General Ins. Co., 16 Misc.3d 23, 28, 842 N.Y.S.2d 131, 135 (App. Term 2d & 11th Dists. 2007), payment for acupuncture sessions performed by acupuncturists at the rate for acupuncture performed by chiropractors is appropriate. However, the fee schedule is not restricted by provider specialty. It is set up by provider specialty for convenience only, and any code may be used by any other provider. CPT code happens to be in the Physical Medicine Medical Fee Schedule, as an unlisted physical medicine/rehabilitation service, but Applicant had the right to bill for "cupping" under that code. Rather than denying the claims outright, the Respondent could have requested additional documentation from the Applicant to justify the by-report cupping claims. In Bronx Acupuncture Therapy P.C. v. Hereford Ins. Co., 2017 N.Y. Slip. Op (U) (App. Term. 2 Dept., 2017), a matter decided on January 20, 2017, the Appellate Term, Second Department held that the Civil Court was incorrect in granting an insurer's Page 2/6

3 motion for summary judgment after the carrier argued it "fully" paid CPT codes and (two by-report codes). The Court held that: 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 insurer 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 its 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 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." In addition, upon a close inspection of the affidavit of Dr. Steven Schram submitted by the Respondent, it appears as if it was not prepared with respect to this particular claim. It is generic and does not specifically address the EIP or the cupping at issue. Although there is a general discussion of cupping, there is also general discussion of other unrelated treatments. Furthermore, Dr. Shram is not a Certified Professional Coder. I find Dr. Shram's argument to be conclusory and unpersuasive. In addition, it contradicts the basis for the Respondent's denial. Accordingly, with respect to the claims for 6 sessions of cupping, I find in favor of the Applicant in the amount of $ Rather than deny the claim outright as it did, the Respondent could have requested verification, as stated by the Appellate Term, and paid an amount that was sufficiently justified. I therefore find for the Applicant. Reimbursement in the total amount of $ is due and owing herein. This decision is in full disposition of all claims for No-Fault benefits presently before this Arbitrator 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) Page 3/6

4 A. 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: Medical From/To Claim Amount Status XYJ Acupuncture P.C. 03/03/16-03/11/16 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 10/18/2016, which is a relevant date only to the extent set forth below.) Interest runs from the filing date for this case until the date that payment is made at two percent per month, simple interest, on a pro rata basis using a thirty day month. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below After calculating the sum total of the first-party benefits awarded in this arbitration plus the interest thereon, Respondent shall pay Applicant an attorney's fee equal to 20% of that sum total, subject to a minimum of $60 and a maximum of $850. See, 11 NYCRR (c) and (e). However, if the benefits and interest awarded thereon is equal to or less than the Respondent's written offer during the conciliation process, the attorney's fee shall be based upon the provisions of 11 NYCRR (b). For cases filed after February 4, 2015, there is no minimum fee and a maximum fee of $ 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. Page 4/6

5 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, Steven Celauro, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 04/23/2017 (Dated) Steven Celauro 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 5/6

6 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: adc4b283e3f025c8c31a65c0c6b80e33 Electronically Signed Your name: Steven Celauro Signed on: 04/23/2017 Page 6/6