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 e Matter of e Arbitration between: OZ 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, Paul Weidenbaum, e undersigned arbitrator, designated by e American Arbitration Association pursuant to e Rules for New York State No-Fault Arbitration, adopted pursuant to regulations promulgated by e Superintendent of Insurance, having been duly sworn, and having heard e proofs and allegations of e parties make e following AWARD: Injured Person(s) hereinafter referred to as: IP Hearing(s) held on 04/13/2017 Declared closed by e arbitrator on 04/13/2017 Steven Miranda from Law Offices of Gabriel & Shapiro, LLC. participated in person for e Applicant Philippa Tapada from Geico Insurance Company participated in person for e Respondent The amount claimed in e Arbitration Request, $ 2,935.24, was NOT AMENDED at e oral hearing. Stipulations WERE NOT made by e parties regarding e issues to be determined. Summary of Issues in Dispute The IP, a 32 year old female, sustained injuries in a motor vehicle accident which occurred on 1/25/14. Thereafter, e IP sought medical treatment consisting of office visits [CPT Code 99212], acupuncture [CPT Codes and 97811], and cupping [Code 97799] from e Applicant. At issue in is case are claims totaling $2, representing e unpaid portion of bills in e total sum of $2, ($2, minus e amount e carrier paid: $949.39, leaving a disputed balance of $1,467.34)--for charges billed prior to e IME cutoff date of 5/9/14; in addition to bills totaling $1, for all post-ime billing, for which e carrier made no payments at all. The Applicant rendered e services in question between 1/27/14 and 7/10/14. Page 1/12

2 Respondent's defense to e pre-ime billing is fee schedule based, while e Respondent's denials of all post-ime billing is e report of e acupuncture Independent Medical Examination (IME) prepared by Dr. Iozzio following his 4/29/14 examination of e IP. The issues us presented are: Wheer an acupuncturist can bill for cupping and, if so, what e appropriate amount of reimbursement should be? Wheer Applicant is entitled to reimbursement for acupuncture treatment and cupping procedures in light of Respondent's IME by Dr. Iozzio dated 4/29/14? 4. Findings, Conclusions, and Basis Therefor This arbitration arises out of medical treatment for e IP, a 32 year old female, related to injuries sustained in a motor vehicle accident at occurred on 1/25/14. Applicant seeks reimbursement for payment for dates of service from 1/27/14 rough 7/10/14. Respondent timely denied payment based upon an IME conducted by Dr. Iozzio on 4/29/14, and e IME cutoff date was 5/9/14. The Applicant's pre-ime bills are broken down as follows: Amount Billed Amount Paid Disputed Balance Dates of Service $54.73 $20.52 $ /27/14 $55.69 $38.09 $ /29/14 $55.69 $38.09 $ /30/14 $ $ $ /5/14-2/16/14 $ $ $ /18/14-2/17/14 $ $ $ /3/14-3/26/14 $ $76.18 $ /18/14-3/27/14 $ $ $ /2/14-4/30/14 $ $ $ /3/14-4/24/14 Page 2/12

3 TOTAL: TOTAL: TOTAL: $2, $ $1, The post-ime bills consist of e following: Amount Billed Amount Paid Disputed Balance Dates of Service $ $0 $ /12/14-5/30/14 $ $0 $ /14/14 $ $0 $ /2/14-6/23/14 $ $0 $ /10/14 TOTAL: TOTAL: $1, $1, The decision in is case is based upon e oral arguments of e parties' representatives at e arbitration hearing and upon my review of e submissions as contained in e Electronic Case Folder maintained by e American Arbitration Association. I have reviewed e documents in MODRIA as of e date of closing of is file, and incorporate and rely upon said documents in making my decision. A heal care provider-applicant establishes its prima facie entitlement to No-Fault benefits by submitting proof at its claim was mailed to and received by e insurance carrier-respondent, and at payment is overdue. Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 N.Y. 3d 498, 14 N.Y.S. 3d 283 (2015). Once Applicant has established a prima facie case, e burden shifts to e Respondent to present sufficient evidence to establish a lack of medical necessity for e services rendered. The insurer bears e burden of production. Bronx Expert Radiology, P.C. v. Travelers Ins. Co., 13 Misc. 3d 136A, 831 N.Y.S. 2d 351 (Table) (App. Term 1 st Dept. 2006). Alough a defense based upon Fee Schedule for services rendered after 4/1/13 is now a non-precludable defense, it remains e burden of e Respondent to establish at e fees charged by a provider exceed e amounts set for in e appropriate fee schedule. Liberty Chiropractic, P.C. v. 21 st Century Ins. Co., 53 Misc. 3d 133A, 2016 WL Page 3/12

4 (Table), 2016 NY Slip Op 51409(U) (App. Term 2d, 11 & 13 Jud. Dists. 2016), citing Rogy Med, P.C. v. Mercury Cas. Co., 23 Misc. 3d 132A, 885 N.Y.S. 2d 713 (Table) (App. Term 2d, 11 & 13 Jud. Dists. 2009). Applicant has established its prima facie case wi proof at it submitted a proper claim, setting for e fact and e amount charged for e services rendered and at payment of no-fault benefits was overdue (see Insurance Law 5106 a; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD 3d 742, 774 N.Y.S. 2d 564 [2004]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc. 3d 128A, 784 N.Y.S. 2d 918, 2003 NY Slip Op 51701U [App Term, 2d & 11 Jud Dists]). The burden shifts to e insurer to prove at e services were not medically necessary. Pre-IME Charges-Cupping (97799) Regarding e instant matter, utilizing CPT Code 97799, Applicant billed $50.00 per session of cupping. There were a total of nineteen (19) sessions of pre-ime cupping. The total amount representing cupping is $ There were no partial payments. Respondent did not reimburse Applicant for e cupping services at all. Respondent's pre-ime denials for e supping charges state: "There is no allowance for is procedure in e New York State Workers Compensation Fee Schedule under e provider's specialty." Respondent essentially argues an acupuncturist may not bill for cupping. Alternatively, at e hearing, Respondent argued at if an acupuncturist may bill for cupping, e Applicant should be reimbursed at $13.87 per session. Respondent proffers e Affidavit of Steven Schram, L. Ac., D.C. The Affidavit is a generic Affidavit which appears to be used in general support of a fee schedule defense in No-Fault cases. The Affidavit sets for Mr.Schram's opinion of what amounts ought to be billed for moxibustion, cupping and acupressure services. He attempts to determine e closest CPT Code at ese services can be billed under in e absence of guidance from e New York State Workers Compensation Medical Fee Schedule ("Fee Schedule"). It should be noted at e outset at Mr. Schram's Affidavit actually undermines Respondent's argument at an acupuncturist may not bill for cupping. Mr. Schram states at cupping, in fact, falls wiin e scope of practice of an acupuncturist and is a treatment technique taught in acupuncture schools. Additionally, ere is noing in e Fee Schedule which limits an acupuncturist solely to ose codes listed in e chiropractic fee schedule. The Fee Schedule and its codes may be used by multiple providers of different specialties wi e caveat at e provider bills at e appropriate rate of reimbursement. Since Respondent offers no support for its contention an acupuncturist may not bill for cupping, I now turn to a determination of e proper rate of reimbursement. Wiout entirely discounting Mr. Schram's opinion, and Respondent's effort to justify its fee schedule defense, Mr. Schram is neier a professional fee coder nor an expert. The Page 4/12

5 opinion of an individual practitioner, wiout more, and in e absence of any auoritative support, cannot be deemed to be a universal rule. Moreover, Mr. Schram makes certain general statements which are completely unsupported. For example, he states at cupping requires little overhead apart from skin lubricant and requires a minimal amount of technical skill. This statement is, of course, entirely subjective and reflects only Mr. Schram's personal opinion. Just as a peer reviewer must set for e standard of care and generally accepted practice, Mr. Schram is required e general practice for cupping and to support any such statement of practice wi more an merely his own opinion. Mr. Schram does not identify e basis of his knowledge of e fee schedule or furnish any auority for e amounts an acupuncturist may charge for cupping. As Mr. Schram does not establish what e correct rate of reimbursement should be, e question of wheer e Applicant is entitled to $50.00 per session as charged remains to be resolved. Guidance is to be found in e recent Appellate Term, Second Department decision of Bronx Acupuncture Therapy, P.C. v. Hereford Ins. Co., 54 Misc. 3d 135A, 2017 WL (Table), (App. Term 2d, 11 & 13 Jud. Dists. 2017), which states in relevant part: The record reflects at plaintiff submitted ree claim forms to defendant which included charges for 21 sessions of moxibustion, under code 97039, which is described as "Unlisted modality (specify type and time if ere was constant attendance)" and for one session of acupressure, under Code 99199, which is described as "Unlisted special service, procedure or report". The Workers Compensation Fee Schedules do not assign a relative value to eier of ose codes, but instead have assigned em a "By Report" designation, which requires a provider to furnish certain additional documentation to enable e insurer to determine e appropriate amount of reimbursement. Plaintiff did not provide such documentation wi its claim forms and defendant did not, wiin 15 business days of its receipt of e claim forms, request any additional verification required by e insurer to establish proof of claim [11 NYCRR (b)]. As defendant failed to demonstrate upon its motion at it had requested any additional verification from plaintiff seeking e information it required in order to review plaintiff's claims for services billed under codes and of e Workers Compensation Fee Schedule, defendant was not entitled to summary judgment dismissing so much of e complaint as sought to recover for services rendered under ose codes. In e instant matter, falls under e "unlisted" modality/physical medicine procedure umbrella. It is erefore a "By Report" code. Even if e Applicant should have provided documentation to support its billing amounts, to date, ere is no case which places e onus on e Applicant to substantiate its billing amounts as part of its prima facie burden. It is e Respondent which bears e burden of establishing its defense, notwistanding at a fee schedule defense is a non-precludable defense. The proper recourse in is instance would have been for e Respondent to request verification from e Applicant relating to its billing under 97799, as stated by e Appellate Term in Bronx Acupuncture Therapy, supra. Page 5/12

6 I erefore find at e Respondent herein did not follow a proper course of claims processing. First, Respondent denied e claim, stating at e Applicant cannot bill for cupping. This basis for e denial, however, cannot be sustained for e reasons set for at leng above. And while it is true at e Respondent may still raise a fee schedule defense, e Respondent here attempts to support its defense wi an Affidavit from Mr. Schram which is deficient. Had e Respondent sought verification, it may have been established at e cupping procedure was more complex, and involved greater skill and more time, an Mr. Schram's subjective description suggests. Respondent could have required verification but chose not to do so, and in so electing it has placed itself in a position from which it cannot credibly challenge e billing amounts. As it is not e Applicant's burden to establish its billing amounts, notwistanding e "By Report" code nature of 97799, and since Respondent failed to seek verification, I find at e Applicant is entitled to reimbursement of $50.00 per session of cupping. Applicant's claims totaling $ for 19 sessions of cupping between 2/5/14 and 4/28/14 are granted. Pre-IME Charges-Acupuncture (97810 and 97811) Relating to e dates of services between 1/29/14 and 4/28/14, Respondent issued partial payments for charges billed under Codes and totaling $782.32, and denied e remainder of $ The basis of e denials is as follows: "The Superintendent has not adopted or established a Fee Schedule applicable to e provider. Payment has been adjusted for consistency wi charges permissible for similar procedures under schedules already adopted or established by e Superintendent. Based upon identical New York State acupuncturist licensing requirements, payment is issued at e rate listed in e New York Workers Compensation Chiropractic Fee Schedule." I take judicial notice at e appropriate fee schedule in Region IV for CPT Code is $20.52, and e appropriate fee schedule for CPT code is $ The combined total for ese two codes is $ Respondent paid e sum of $ for ose bills submitted under ese codes [20 bills submitted under Code at $17.57 each, for a subtotal of $351.40; and 21 bills submitted under Code at $20.52 each, for a subtotal of $430.92; and a grand total of $782.32]. Accordingly, I find e payments issued by e Respondent for ose bills submitted under Codes and were sufficient, and e Applicant is not entitled to any additional reimbursement. Pre-IME Charges-Office Visits (99212) Office visits were billed between 1/27/14 and 4/28/14 totaling $165.34, and e entire amount was denied, wiout any partial payment being made by e Respondent. The basis for e denials was as follows: "There is no allowance for is procedure in e New York State Workers Compensation Fee Schedule under e provider's specialty." find at e Respondent has failed to meet its burden of establishing its fee schedule defense for e same rationale annunciated in connection wi e pre-ime charges I Page 6/12

7 under code for cupping services. Accordingly, Applicant is awarded e sum of $ representing e ree (3) office visits billed under code prior to e IME cutoff date. All Post-IME Charges The charges billed under codes 99212, and 97811, as well as under code for services rendered after e IME cutoff date of 5/9/14 total $1,467.90, and e totality of ese charges were denied based upon e negative IME findings contained in Dr. Iozzio's report. Where an insurer asserts at e medical test, treatment, supply or oer service was medically unnecessary, e burden is on e insurer to prove at assertion wi competent evidence of e lack of medical necessity such as an Independent Medical Examination (IME, a peer review, or oer proof which sets for a factual basis and a medical rationale for denying e claim. See A.B. Medical Services, PLLC v. Geico Insurance Co., 2 Misc. 3d 26 [App. Term, 2d &11 Jud. Dists.2003] Dists. 2003], Kings Medical Supply, Inc. v. Country Wide Insurance Company, 783 N.Y.S. 2d 448, 452; amaze Medical Supply, Inc. v. Eagle Insurance Company, 2 Misc. 3d 128 [App. Term 2d & 11 Jud. Dists. 2003]). When an insurer relies upon a peer review or Independent Medical Examination [IME] report to demonstrate at a particular service was not medically necessary, e peer reviewer's or IME doctor's opinion must be supported by sufficient factual evidence or proof and cannot simply be conclusory. As per e holding in Jacob Nir, M.D. v. Allstate Insurance Co., 7 Misc. 3d 544 (2005), e peer review must establish a factual basis and a medical rationale to support a finding at e services were not medically necessary, including setting for generally accepted standards in e medical community. The opinion of e insurer's expert, standing alone, is insufficient to carry e insurer's burden to prove at e services were not medically necessary. Citywide Social Work & Psychological Services, PLLC v. Travelers Indemnity Co., 3 Misc. 3d 608, 777 N.Y.S. 2d 241 (N.Y. Civ. Ct., Kings Co. 2004). Respondent has submitted e report of an Independent Medical Examination performed by Dr. Iozzio dated 4/29/14. In his 4/29/14 report, Dr. Iozzio states e results of e acupuncture examination were entirely wiin normal limits wi regard to vitality, skin color, tongue exam, palpation/pulse, voice and respiration. Moreover, e range of motion testing conducted by Dr. Iozzio revealed e IP had normal ranges of motion in all planes of movement in her cervical, lumbar and oracic spine, her bilateral shoulders, elbows, wrists, hands, hips, knees, ankles and feet. Dr. Iozzio rendered a diagnosis of cervical and lumbar spine sprain and strain, resolved; in addition to left shoulder sprain/contusion, left hand sprain/contusion, and left knee sprain/contusion, resolved. Wi regard to e acupuncture examination, Dr. Iozzio found e Qi and blood stagnation in e UB and DU channels of e cervical spine and e lumbar spine to have been resolved. The stagnant Qi and blood in Li channels of e left upper extremity had Page 7/12

8 been resolved, and e stagnation Qi and blood in Li channels of e left lower extremity had been resolved. Dr. Iozzio reported e IP does not exhibit any signs or symptoms of Qi and blood flow stagnation in e blood channels, and at no furer acupuncture treatment was necessary. Where e Respondent presents sufficient evidence to establish a defense based on lack of medical necessity, e burden shifts to e Applicant which must en present its own evidence of medical necessity. [see Prince, Richardson on Evidence, Sections 3-104, [Farrell, 11 ed.]). Andrew Caroers, M.D., P.C. v. GEICO Indemnity Company, 2008 NY Slip Op 50456U, 18 Misc. 3d 147A, 2008 N.Y. Misc. LEXIS 1121, West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co., 13 Misc. 3d 131, 824 N.Y.S. 2d 759, 2006 NY slip Op 51871U (Sup. Ct. App. T. 2d Dept. 2006). Applicant submitted contemporaneous medical treatment records. These records show at e applicant initially examined e IP on 1/27/14, at which time e IP presented wi complaints consisting of pain in her neck and low back. The Traditional Chinese Medicine (TCM) assessment was Qi and blood stagnation, and e recommendation was to continue acupuncture treatment 3 to 4 times per week. The follow-up examination reports, including e 5/30/14 report, and e totality of e evidence, persuades me at e IP was suffering from symptoms which were causally related to e 1/25/14 motor vehicle accident at had not resolved as of e date of e Independent Medical Examination (4/29/14). On 5/30/14, e IP was re-evaluated by e Applicant, at which time she presented wi complaints consisting of headaches, in addition to lower back pain and stiffness, Examination revealed e IP had a swollen tongue, a pulse which was sinking and wiry, restricted ranges of motion in most planes of movement of e lumbar spine, in addition to Qi and blood stagnation in her neck and lower back. Therefore, I find at e post-ime services rendered by e Applicant at issue herein were medically necessary. I find at Respondent has offered no objective evidence in support of its denial based upon lack of medical necessity. An IME report asserting at no furer treatment is medically necessary must be supported by a sufficiently detailed factual basis and medical rationale, which includes mention of e applicable generally accepted medical/professional standards. Carle Place Chiropractic v. New York Central Mut. Fire INS Co., 19 Misc.3d 1139(A), 866 N.Y.S.2d 90 (Table), 2008 N.Y. Slip Op (U), 2008 WL (Dist. Ct., Nassau Co., May 29, 2008, Andrew M. Engle, J.). An IME report must set for a factual basis and medical rationale for e conclusion at furer services are not medically necessary. E.g., Ying Eastern Acupuncture, P.C. v. Global Liberty Insurance, 20 Misc.3d 144(A), 873 N.Y.S.2d 238 (Table), 2008 N.Y. Slip Op (U), 2008 WL (App. Term 2d & 11 Dists. Sept. 3, 2008). Applicant was apparently confronted wi certain subjective complaints as well as objective clinical findings, and determined at furer evaluation and treatment was medically necessary. A treating physician cannot merely discount and disregard his/her patient's subjective complaints as unfounded and irrational. Since ere is such a divergence of medical opinions as to e necessity of e disputed medical treatment, I feel bound to defer to e opinions of IP's treating physicians raer an to e opinions Page 8/12

9 of Respondent's IME consultant who was not personally responsible for e IP's care and treatment. I find Applicant's assessment to be credible and convincing. Accordingly, after a careful review of e records and consideration of e parties' oral arguments, I find as a matter of fact at Applicant has met its burden of establishing a prima facie case and Respondent failed to rebut it wi evidence at e acupuncture services were not medically necessary. I erefore find for e Applicant. Reimbursement in e amount of $1, for post-ime treatment as requested is due and owing herein. This sum is comprised of $ for e irteen (13) post-ime bills submitted under Codes and 97811; $ for e irteen (13) post-ime bills submitted under Code 97799; and $93.93 for e bills submitted e two post-ime office visits [$43.71 and $50.22]. This decision is in full disposition of all claims for No-Fault benefits presently before is Arbitrator. 5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, I do NOT impose e administrative costs of arbitration to e applicant, in e amount established for e current calendar year by e Designated Organization. 6. I find as follows wi regard to e policy issues before me: The policy was not in force on e date of e 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 e MVAIC) The applicant's injuries didn't arise out of e "use or operation" of a motor vehicle The respondent is not subject to e jurisdiction of e New York No-Fault arbitration forum Accordingly, e applicant is AWARDED e following: A. Page 9/12

10 Medical From/To Claim Amount Status OZ Acupuncture, P.C. 01/27/14-07/10/14 Awarded: $2, $2, Total $2, Awarded: $2, Interest: $0.00 B. The insurer shall also compute and pay e applicant interest as set for below. (The filing date for is case was 09/06/2016, which is a relevant date only to e extent set for below.) Interest runs from e filing date for is case until payment is made at two percent per mon, simple interest, on a pro rata basis using a irty day mon. C. Attorney's Fees The insurer shall also pay e applicant for attorney's fees as set for below After calculating e sum total of e first-party benefits awarded in is arbitration and e interest ereon, Respondent shall pay Applicant an attorney's fee equal to 20% of at sum total, subject to a minimum of $60 and a maximum of $850. See, 11 NYCRR Section (c) and (e). However, if e benefits and interest awarded ereon are less an or equal to e Respondent's written offer during e conciliation process, e attorney's fee shall be based upon e provisions of 11 NYCRR Section (b). For cases filed after February 4, 2015 ere is no minimum fee and a maximum fee of $1, D. The respondent shall also pay e applicant forty dollars ($40) to reimburse e applicant for e fee paid to e Designated Organization, unless e fee was previously returned pursuant to an earlier award. This award is in full settlement of all no-fault benefit claims submitted to is arbitrator. Page 10/12

11 State of New York SS : County of NASSAU I, Paul Weidenbaum, do hereby affirm upon my oa as arbitrator at I am e individual described in and who executed is instrument, which is my award. 04/30/2017 (Dated) Paul Weidenbaum IMPORTANT NOTICE This award is payable wiin 30 calendar days of e 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 is award may be appealed to a master arbitrator. An appeal to a master arbitrator must be made wiin 21 days after e mailing of is award. All insurers have copies of e regulation. Applicants may obtain a copy from e Insurance Department. Page 11/12

12 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 8634f9fe703e1b446c1c7da5ae74b1a3 Electronically Signed Your name: Paul Weidenbaum Signed on: 04/30/2017 Page 12/12