Award of Dispute Resolution Professional. Hearing Information

Transcription

1 In the Matter of the Arbitration between Specialty Medical Services/ C. N. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: The Law Offices of Hillary Blumenthal, PLLC v. Claimant Attorney File No: Respondent Counsel: McDermott & McGee, LLP Respondent Attorney File No: WH Accident Date: 05/30/2010 Allstate New Jersey RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Jennifer Remington-Knodel Esq. I, The Dispute Resolution Professional assigned to the above matter, pursuant to the authority granted under the "Automobile Insurance Cost Reduction Act", N.J.S.A. 39:6A-5, et seq., the Administrative Code regulations, N.J.A.C. 11:3-5 et seq., and the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey of Forthright, having considered the evidence submitted by the parties, hereby render the following Award: Hereinafter, the injured person(s) shall be referred to as: CN An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: April 25, 2012 Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: The parties stipulated that Respondent made post-filing payments to Claimant, thereby rendering Claimant a successful party entitled to fees and costs. The Demand was amended to $ to reflect the post-filing payments. NJ Page 1 of 6

2 Findings of Fact and Conclusions of Law CN was involved in a motor vehicle accident on 05/30/10 from which the within matter arises. In accordance with N.J.A.C. 11:3-5.6(d) and Forthright Rule 43, the following issues were identified by the parties at the hearing and submitted for my determination as the only issues in dispute: 1. Sufficiency of documentation to support the charges for 2 units of CPT UCR of CPT Propriety of re-coding and bundling CPT Codes 92541, 92542, 92544, and into CPT UCR of CPT No other issues were identified at the hearing or will be considered, including any other issues raised in either party s pre or post hearing submissions. The presentation of an issue and/or argument prior to the hearing does not place said issue and/or argument under my consideration unless orally argued and presented to the undersigned during the hearing. The failure to orally argue and present an issue and/or argument during the hearing constitutes a waiver of same. Evidence Considered: In rendering my decision, I considered and reviewed all documents submitted by the Claimant and Respondent. I also considered the arguments of counsel which were made during the oral hearing in this matter. Issue 1: At issue is the sufficiency of documentation to support the charges for 2 units of CPT Respondent denied reimbursement for the second unit of CPT based upon its allegation that there was insufficient documentation to support the charges. Claimant argues that it is entitled to the second unit of CPT as the charges are clearly documented in the records. In support, Claimant submits the VNG testing report which shows that rotational testing was performed in both vertical and horizontal planes. As such, Claimant submits that it appropriately billed for two units of CPT Claimant argues that Respondent has not set forth any evidence to support its position that the billing of two units of CPT was improper. Based upon the preponderance of the evidence, I find that Claimant has proven that the charges for two units of CPT are clearly and adequately documented in the records by Claimant. Indeed, the VNG testing report shows that rotational testing was performed in both vertical and horizontal planes. As such, it is clear that Claimant properly billed for two units of CPT Further, Respondent has not set forth any evidence to support its position that the billing of two units of CPT was improper. As Claimant has sustained its burden, it follows that Claimant is entitled to reimbursement of the second unit of CPT Issue 2: At issue is the UCR of CPT Claimant billed 2 units of CPT at $ per unit for a total of $ Respondent reimbursed Claimant for 1 unit of CPT at $ pursuant to Ingenix. NJ Page 2 of 6

3 In support of its UCR of $ per unit of CPT 92546, Claimant submits 2 EOBs showing billing and payment at that rate. According to DOBI Bulletin No , the determinations of the DRPs shall be fair efficient and consistent with substantive law and the Department s rules for the handling of PIP claims. In specific regard to UCR, the Bulletin provides as follows: Usual, Customary and Reasonable (UCR) Fees: Many DRPs incorrectly assert that UCR fees can be demonstrated by simply reviewing examples of provider invoices. The DRPs who do so frequently rely upon language from Cobo vs. Mkt Transition Facility, 293 N.J. Super. 374 (App. Div. 1996). This is legally incorrect and ignores the fact that through amendments to the PIP Medical Fee Schedule rule adopted subsequent to Cobo, the Department established a different process for how UCR is to be calculated. The Department s rule at N.J.A.C. 11:3-29.4(e)1 clearly states that the provider is to submit his or her usual and customary fee for the service and it is the insurer, not the provider that is to determine reasonableness. The rule was upheld by the Appellate Division (In Re Adoption of N.J.A.C. 11:3-29 by the State of N.J. Dept. of Banking & Ins., 410 N.J. Super. 6, (App. Div. 2009)), and clearly permits insurers to use national databases to determine the reasonableness of a provider s usual and customary fee. Further, in accordance with the Appellate Division s decision, the Department in Order A concluded that the Ingenix MDR database can be used by insurers to determine the reasonableness of fees that are not on the fee schedule. Therefore, DRPs should be following this new procedure for determining the appropriate UCR reimbursement. Prior to 08/10/09, N.J.A.C. 11:3-29.4(e) provided as follows: N.J.A.C. 11:3-29.4(e): The insurer s limit of liability for any medical expense benefit for any service or equipment not set forth in or not covered by the fee schedules shall be a reasonable amount considering the fee schedule amount for similar services or equipment in the region where the service or equipment was provided or, in the case of elective services or equipment provided outside the State, the region in which the insured resides. Where the fee schedule does not contain a reference to similar services or equipment as set forth in the preceding sentence, the insurer s limit of liability for any medical expense benefit for any service or equipment not set forth in the fee schedules shall not exceed the usual, customary and reasonable fee. On 08/10/09, N.J.A.C. 11:3-29.4(e) was revised as follows: N.J.A.C. 11: (e): Except as noted in (e) 1 and 2 below, the insurer s limit of liability for any medical expense benefit for any service or equipment not set forth in or not covered by the fee schedules shall be a reasonable amount considering the fee schedule amount for similar services or equipment in the region where the service or equipment was provided or, in the case of elective services or equipment provided outside the State, the region in which the insured resides. Where the fee schedule does not contain a reference to similar services or equipment as set forth in the preceding sentence, the insurer s limit of liability for any medical expense benefit for any service or equipment not set forth in the fee schedules shall not exceed the usual, customary and reasonable fee. N.J.A.C. 11: (e)(1): For the purposes of this subchapter, determination of the usual, reasonable, and customary fee means that the provider submits to the insurer his or her usual and customary fee. The NJ Page 3 of 6

4 insurer determines the reasonableness of the provider s fee by comparison of its experience with that provider and with other providers in the region. The insurer may use national databases of fees, such as those published by Ingenix ( or Wasserman ( for example, to determine the reasonableness of fees for the provider s geographic region or zip code. Applying the aforementioned legal authority to the totality of the proofs presented in this case demonstrates a UCR for CPT code at $ per unit. Accordingly, Claimant is entitled to reimbursement at that rate. Therefore, I Award Claimant a total of $ after deducting for payments already made by Respondent as follows: 2 units of CPT x $ =$ $ (paid) = $ Issue 3: At issue is the propriety of re-coding and bundling CPT Codes 92541, 92542, 92544, and into CPT Claimant billed CPT Codes 92541, 92542, 92544, and Respondent re-coded and bundled all of said codes into CPT Code pursuant to the American Medical Associations Coding of Vestibular function Tests with recording. CPT is defined as basic vestibular evaluation, includes spontaneous nystagmus test with eccentric gaze fixation nystagmus, with recording, positional nystagmus test, minimum of 4 positions, with recording, optokinetic nystagmus test, bidirectional foveal and peripheral stimulation, with recording, and oscillating tracking test, with recording. Do not report CPT in conjunction with 92541, 92542, or CPT is defined as spontaneous nystagmus test, including gaze and fixation nystagmus, with recording. Do not report in conjunction with or the set of 92542, 92544, and CPT is defined as positional nystagmus test, minimum of 4 positions, with recording. Do not report in conjunctions with or the set of 92541, and CPT is defined as optokinetic nystagmus test, bidirectional, foveal or peripheral stimulation, with recording. Do not report in conjunction with or the set of 92541, and CPT is defined as oscillating tracking test, with recording. Do not report in conjunction with or the set of 92541, and The Vestibular Billing Code article submitted provides that CPT should be billed when all four procedures (92541, 92542, 92544, and 92545) are performed on the same day and may not be billed separately. Based upon the preponderance of the evidence, I find that Respondent properly re-coded and bundling CPT Codes 92541, 92542, 92544, and into CPT as per the AMA and Vestibular coding authority and that Claimant has failed to refute the propriety of same. Issue 4: NJ Page 4 of 6

5 At issue is UCR of CPT Respondent reimbursed Claimant $ for CPT pursuant to Ingenix. Claimant argues that the proper UCR for said code is $ In support, Claimant submits one EOB from Travelers showing reimbursement at that amount. In addition, Claimant submits awards showing that the amount that Respondent paid is substantially less than what other providers are charging and being awarded in arbitration. Applying the aforementioned legal authority regarding UCR under Issue #2 above to the totality of the proofs presented in this case demonstrates a UCR for CPT code at $ Accordingly, Claimant is entitled to reimbursement at that rate. Therefore, I Award Claimant a total of $ after deducting for payments already made by Respondent as follows: CPT x $ $ (paid) = $ Attorney s Fees and Costs: Under AICRA, an award of attorney s fees to a successful claimant is not mandatory but lies within the sound discretion of the Arbitrator as provided for under N.J.A.C. 11:3-5.6(b)(3). That provision provides, among other things, than an arbitration award may include attorney s fees for a successful claimant in an amount consonant with the award under Rule 1.5 of the Supreme Court s Rules of Professional Conduct. Forthright Rule 22 provides that The Award may include attorney s fees for a successful claimant in an amount consonant with the amount of the Award and with Rule 1.5 of the Supreme Court s Rules of Professional Conduct. In determining the proper amount of fees, the most useful starting point is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. Super. 144, 157 (App. Div. 1996). Depending on the evaluation of the factors in RPC 1.5, the fact finder is given discretion to adjust the fees upward or downward in her discretion. Id. at 158, 160; See Enright v. Lubow, 315 N.J. Super. 306 (App. Div. 1987); Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, (App. Div. 2001). In making those adjustments, the DRP considers the following factors: (1) the insurer s good faith in refusing to pay the claim; (2) the excessiveness of plaintiff s demands; (3) the bona fides of the parties; (4) the insurer s justification in litigating the issues; (5) the insured s conduct as it contributes substantially to the need for litigation; (6) the general conduct of the parties; and (7) the totality of the circumstances. In addition, consideration is given to the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the fees customarily charged in the locality for similar legal services, the amount involved, the results obtained, as well as the experience, reputation and ability of the lawyer performing the service. I find that Claimant is entitled to attorney s fees totaling $ and $ in costs. This figure reflects a reduction in the amount of time expended based upon Respondent s arguments and also comports with the guidance provided by the aforementioned legal authority and fully and fairly compensates counsel. Claimant s counsel has substantial experience in this area of the law and clearly reflects the amount of time expended on this matter which included a pre hearing submissions dealing with the issues raised in this case. Moreover, Claimant s counsel appeared in person. However, Respondent prevailed in part. Finally, the attorney fee is consonant with the award. Interest: Claimant is entitled to interest which is to be calculated by Respondent based upon its receipt of the bills and statutorily mandated rates. Therefore, the DRP ORDERS: NJ Page 5 of 6

6 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Specialty Medical Services $ $ Specialty Medical Services This Award is subject to any applicable co-pay and/or deductible obligation of the patient. 2. Income Continuation Benefits: Not in issue. 3. Essential Services Benefits: Not in issue. 4. Death or Funeral Expense Benefits: Not in issue. 5. Interest: I find that the Claimant did prevail. Interest is awarded pursuant to N.J.S.A. 39:6A-5h. Attorney's Fees and Costs I find that the Claimant did not prevail and I award no costs and fees. I find that the Claimant prevailed and I award the following costs and fees (payable to Claimant's attorney unless otherwise indicated) pursuant to N.J.S.A. 39:6A-5.2g: Costs: $ Attorney's Fees: $ THIS AWARD is rendered in full satisfaction of all claims and issues presented in the arbitration proceeding. Entered in the State of New Jersey Date: 06/05/12 NJ Page 6 of 6