Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between MIDDLESEX SURGERY CENTER A/S/O S.W. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: NJS P6 Claimant Counsel: Law Offices of Camilla T. Morch v. Claimant Attorney File No: Respondent Counsel: Morgan, Melhuish, Abrutyn Respondent Attorney File No: ESU Accident Date: 03/16/2009 Esurance Insurance Company RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Cynthia J. Celentano, 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: SW An oral hearing was waived by the parties. Hearing Information An oral hearing was conducted on: May 15, 2012 Claimant or claimant's counsel appeared by telephone. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: N/A NJ Page 1 of 7

2 Findings of Fact and Conclusions of Law SW was involved in a motor vehicle accident on March 16, On the date of the accident SW was eligible to receive PIP medical benefits from respondent, Esurance Insurance Company (respondent or Esurance ). The present action was filed by the claimant, Middlesex Surgery Center (hereinafter referred to as claimant or MSC ), for reimbursement of $16, in PIP medical benefits. Prior to the hearing claimant amended the Demand to $12, to reflect partial payment for CPT code Based upon the itemized summary provided by claimant, claimant made a mathematic error when adding the itemized claimant. The claim is for $15, ($4, x 3 + $632.55) and not $12, as stated on the summary. Claimant demands reimbursement for a bilateral transforaminal injection performed on April 29, 2010 and a three level discogram performed on September 7, I have reviewed the following documents submitted on behalf of the parties: Demand for Arbitration with attachments. Claimant s submission dated May 9, 2012 with summary of claim with attachments. Certification of Services. Claimant s post-hearing submission with letter from Horizon authorizing the discogram on appeal. Respondent s response to the Demand for Arbitration. Respondent s Arbitration Submission dated April 25, 2012 with attachments. In rendering the award in this matter I have considered the evidence submitted by the parties and the oral arguments of counsel at an arbitration hearing conducted on April 15, At the conclusion of the hearing the claimant requested that the hearing be held open to permit MSC to submit a copy of the Horizon letter authorizing the discogram. The hearing was held open. I have considered claimant s post-hearing submission when rendering this award. All services were rendered after the enactment of the new ambulatory surgery center fee schedule. Under the newly enacted fee schedule, ambulatory fees are classified by ASC Group Numbers. As summarized by the provider, MSC demands payment for the following: Date CPT code Billed FS Paid Due 04/29/ $9, $1, $1, $ /07/ $4, $5, $0 $4, $4, $5, $0 $4, $4, $5, $0 $4, NJ Page 2 of 7

3 In accordance with N.J.A.C. 11:3-5.6(d) and Rule 43, the following issues were identified by the parties and submitted for my determination: 1. Whether the discogram is supported as being reasonable and medically necessary; 2. Whether the multiple procedure reduction formula ( MPRF ) applies to discogram billed CPT code 62290; and 3. Whether respondent correctly reimbursed claimant for CPT codes No other issues were identified at the hearing or will be considered. Based upon the evidence submitted I make the following findings of fact: All services were rendered after August 10, MSC is an ambulatory surgical facility. For the implementation of the Ambulatory Surgical Center Fee Schedule, MSC is located in the North Region. The ASC Facility Fee Schedule is found at Appendix, Exhibit 7 of the fee schedule. ASC facility fee Group Numbers are indicated by CPT code on the physician s fee schedule, subchapter Appendix, Exhibit 1. Group 1 services are reimbursable at $1, Group 9 services are reimbursable at $5, CPT code is assigned ASC Group Number 1. CPT code was billed with modifier 50. Modifier 50 is to be billed for a bilateral procedure. Pursuant to N.J.A.C. 11:3-29.4(f)(3) bilateral procedures billed with modifier 50 are reimbursable at 150% of the allowable fee. CPT code has not been assigned an ASC Group Number. Claimant contends that there is no basis in law or fact to support the respondent s denial of payment for the discogram on medical necessity grounds when the discogram was approved by respondent. In support of this claimant MSC provides a letter from Horizon Casualty Services authorizing the discogram. From the letter it appears that precertification was initially denied; however on appeal the decision to deny benefits was overturned. According to the respondent s submission, the procedure was authorized following an independent medical examination performed on September 29, As it appears that the discogram was authorized by respondent and medical necessity is not disputed, it is not necessary to address medical necessity in this award. Claimant submits that in the absence of an assigned ASC Group Number CPT code should be assigned ASC Group Number 9. ASC Group Number 9 is reimbursable at $5,086.97; however, claimant billed CPT code at $4, Claimant is entitled to payment of the lesser of these amounts. Claimant further argues that it is entitled to reimbursement for three (3) units of CPT code without reduction for the multiple procedure reduction formula. Respondent does not challenge claimant s argument regarding the billing of CPT code as an ASC Group Number 9 procedure. NJ Page 3 of 7

4 Claimant argues that the multiple procedure reduction formula ( MPRF ) does not apply to CPT code In support of this claim the claimant provides information from the Medicare website, DOBI Bulletin and DOBI responses to frequently asked questions. In New Jersey, every standard automobile liability insurance policy shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault. Personal injury protection coverage means and includes payment of medical expense benefits, which must also be in accordance with the benefit plan provided in the policy and approved for reasonable, necessary and appropriate treatment. N.J.S.A. 39:6A-4. Where there is a dispute, the burden rests on the claimant to establish that the services for which he seeks PIP payments were reasonable, necessary and causally related to an automobile accident. Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156, 158 (Law Div. 1980). The claimant must carry that burden of proof by a preponderance of the evidence. State v. Seven Thousand Dollars, 136 N.J. 233 (1994). Respondent submits that the three level discogram is subject to reduction for the application of the multiple procedure reduction formula. Claimant argues that the multiple procedure reduction formula ( MPRF ) does not apply to CPT code In support of this claim the claimant provides information from the Medicare website, DOBI Bulletin and DOBI responses to frequently asked questions. N.J.A.C. 11: (q) provides that when multiple procedures are performed in an ASC in the same operative session, the ASC facility fee for the procedure with the highest payment group number is reimbursed at 100 percent and reimbursement of any additional procedures furnished in the same session is 50 percent of the applicable facility fee. Claimant provides an award addressing this issue. In the award presented it was found that CPT code is not subject to reduction fort the MPRF. Claimant argues that per the Department of Banking and Insurance FAQ s, this code is not subject to the formula. The FAQ states: Q. Does the fact that Medicare includes ASC s in the definition of physician in its rules for interpretation of the National Correct Coding Initiative (NCCI) mean that add-on codes as defined in N.J.A.C. 11:3-29.4(f) are not subject to the multiple procedure reduction formula in an ASC? A. No. As noted above in response to the previous question, the provisions of N.J.A.C. 11:3-29.4(f) only apply to billing by physicians. The rule for application of the multiple procedure reduction (MPR) formula to ASC facility fees is found in N.J.A.C. 11:3-29.4(q). There is absolutely no relation between the NCCI edits and the MPR formula. The NCCI edits prevent unbundling separate billing for parts of one procedure or treatment. If the NCCI edits permit a NJ Page 4 of 7

5 CPT code to be billed as part of a procedure, it is a separate and unrelated question whether the MPR formula applies. As noted in response to the question above, the exceptions to the MRP formula in N.J.A.C. 11:3-29.4(f) do not apply to ASC s. CMS publishes an annual list of procedures performed in ASC s and whether they are subject to the MPR formula. These lists are found as Appendix AA in the Final Changes ASC regulations (CMS-1504-FC for 2011, CMS FC for 2010, etc.) on the CMS website at: Claimant argues that CMS, referred to above, publishes a list every year of the CPT codes that are subject to the formula. Claimant provides this list, which indicates that discograms are not subject to the MPRF formula. Therefore, NJAC 11:3-29.4(q) never enters into the calculation. In N.J.A.C. 11:3-29.4(f), the Department states clearly that surgical codes are subject to the multiple procedures reduction formula and defines those codes as CPT codes through It is a violation of the rule for DRP s to arbitrarily decide that some codes in that range are not surgical or are not subject to the multiple procedures reduction formula. Similarly, the rule expressly states that the only codes not subject to the multiple procedures reduction formula are those CPTs: 1) that have the note of Modifier -51 exempt ; or, 2) that contain a specific descriptor that includes the words each additional or list separately in addition to the primary procedure. N.J.A.C. 11:3-29.4(f)(2). The express language of the rule, and the most elementary principles of statutory construction interpreting same, clearly indicate that any codes not so designated are subject to the multiple procedure reduction formula. Claimant argues that clearly Bulletin did not consider the instructions of N.J.A.C. 11:3-29.4(o) in the statement regarding CPT and Thus, DOBI s bulletin clearly did not envision applying the administrative code as required. Claimant asserts that DOBI s Bulletin is a direct violation of N.J.A.C. 11:3-29.4(o). Based on the evidence submitted and the arguments made by counsel, I find that the MPRF will not apply to the charges herein. The FAQ referred to above clearly states that the exceptions to the MRP formula in N.J.A.C. 11:3-29.4(f) do not apply to ASC s. Therefore, the reference to this code provision in Bulletin applies to physician s charges only. The FAQ goes on to state that for the application of MPR formula to ASCs, one is to look at the list published by CMS. Claimant provides this list, and in the column which is titled Subject to Multiple Procedure Discounting, CPT and have an N next to it. Accordingly, I am persuaded by Claimant s argument that the MPRF shall not apply to CPT Claimant is awarded $14, ($4, x 3). Claimant billed CPT codes with modifier 50 so as to indicate a bilateral procedure. Bilateral procedures are reimbursable at 150% of the amount allowed by the fee schedule. Esurance reimbursed claimant a total of $1, for CPT code when claimant should have been paid a total of $1, the bilateral procedure. Claimant is awarded $ Claimant is awarded a total of $15, NJ Page 5 of 7

6 Claimant is the prevailing party entitled to fees, costs and interest. Claimant demands $2, for attorney s fees and $245.41for costs and fees. The respondent objects to the request for fees and costs arguing that the number of hours and the hourly rate are excessive considering the amount in controversy and the complexity of the issues presented. N.J.A.C. 11:3-5.6 provides that "an award may include attorney's fees for a successful claimant in an amount consonant with the award and with Rule 1.5 of the Supreme Court Rules of Professional Conduct." This is in accord with NAF Rules. An award of attorney's fees to a successful claimant is not mandatory but lies within the sound discretion of the Arbitrator as provided by N.J.A.C. 11:3-5.6(b) (3). 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). The fact finder is given discretion to adjust the fees upward or downward in its discretion. Id. at 158, 160. See Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987); Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, (App. Div. 2001). R.P.C. 1.5 states that consideration must be given to the novelty and difficulty of the question involved, the skill requisite to perform the legal services, the fees customarily charged in the locality for similar services, the amount involved and the results obtained, as well as the experience, reputation and ability of the attorney performing the services. Having given due consideration to the factors set forth in R.P.C. 1.5, the amount of the award and the arguments of the parties, claimant is awarded $1, in legal fees and $ in costs and fees. Interest is awarded. Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To MIDDLESEX SURGERY CENTER $15, $15, MIDDLESEX SURGERY CENTER 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 was awarded pursuant to N.J.S.A. 39:6A-5h. NJ Page 6 of 7

7 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: $ 1, 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: 06/19/12 NJ Page 7 of 7