Award of Dispute Resolution Professional. Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared by telephone.

Transcription

1 In the Matter of the Arbitration between At Home Medical Equipment, LLC, a/s/o R.M. CLAIMANT(s), Forthright File No: NJ Proceeding Type: In Person Insurance Claim File No: Claimant Counsel: Costello Law Firm v. Claimant Attorney File No: Respondent Counsel: Law Offices Pamela D. Hargrove Respondent Attorney File No: Accident Date: 02/20/2013 Allstate New Jersey RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Carolyn K. Karbasian 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: RM In Person Proceeding Information A proceeding was conducted on: September 10, Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared by telephone. The following amendments and/or stipulations were made by the parties at the hearing: Claimant amended its claim to $4, NJ Page 1 of 17

2 Findings of Fact and Conclusions of Law At the oral hearing of this matter, in accordance with N.J.A.C. 11:3-5.6(d) and N.J. No-Fault Arbitration Rule 43, the parties were specifically asked to identify and define the issues presented for resolution in this arbitration for this Dispute Resolution Professional s determination and consideration, and to which this Award is therefore limited. The presentation of an issue or evidence prior to the hearing does not place it/them under consideration, and such are deemed waived unless orally argued/presented at the hearing. PIP No-Fault Rule 43; N.J.A.C. 11:3-5.6(d). Specifically, the sole issues as identified by the parties at the hearing were: 1. Whether claimant failed to comply with respondent s Decision Point Review/Pre- Certification Plan with regard to the utilization of the Internal Appeals Process voids the assignment under which this action is brought, depriving the claimant of standing to proceed with its claim; 2. If not, whether respondent is estopped from disputing medical necessity of the cervical traction unit claimant sold to RM on 8/7/13; 3. If not, whether the cervical traction unit claimant sold to RM on 8/7/13 was medically necessary; 4. Whether respondent is estopped from disputing medical necessity of the right carpal tunnel brace claimant sold to RM on 8/7/13; 5. If not, whether the right carpal tunnel brace claimant sold to RM on 8/7/13 was medically necessary; 6. Whether respondent is estopped from disputing medical necessity of the EMS unit claimant sold to RM on 8/7/13; 7. If not, whether the EMS unit claimant sold to RM on 8/7/13 was medically necessary; 8. Whether respondent is estopped from disputing medical necessity of the EMS unit supplies claimant sold to RM on 8/7, 9/9, 10/9, 11/11, 12/11/13 and 1/14/14; 9. If not, whether the EMS unit supplies claimant sold to RM on 8/7, 9/9, 10/9, 10/11, 12/1113 and 1/14/14 was medically necessary; 10. If not, whether respondent is estopped from disputing medical necessity of the back brace claimant sold to RM on 9/30/13; 11. If not, whether the back brace claimant sold to RM on 9/30/13 was medically necessary; 12. If the back brace claimant sold to RM on 9/30/13 is medically necessary, whether respondent is entitled to cross walk CPT Code L0631 to K0640. I have reviewed and considered the law set forth below, the arguments of counsel as well as the following documents submitted by the parties: All documents submitted by the claimant in conjunction with the filing of the Demand for Arbitration and in conjunction with a prehearing submission of 12/10/13, 2/18, 9/8, 9/9 and 9/10/14; All documents submitted by the respondent in conjunction with a prehearing submission of 8/26/14. At the conclusion of the oral hearing of this matter, the parties were specifically asked whether they had supplemental evidence they intended to submit. Both parties replied that they did not and the hearing was closed. From the reports and records submitted in evidence, I find this matter arises out of an automobile accident which occurred on 2/20/13 in which EM alleges to have injured her neck and back. The 48 year NJ Page 2 of 17

3 old treated was seen in the emergency room of Kennedy Hospital. Thereafter, she treated with Dr. Ellery Panaia, Dr. Keith Preis and Dr. Young Lee. On 4/9/13, RM underwent an MRI of her cervical spine which revealed a herniated disc at C5-6 and C6-7. On 4/9/13, RMS underwent an MRI of her lumbar spine which revealed a bulging disc at L4-5 with nerve root entrapment. On 6/3/13, RM underwent an MRI of her thoracic spine which revealed no evidence of any herniated discs. On 6/18/13, RM underwent an EMG/NCV study of her upper extremity which revealed right C5-C6 radiculopathy. On 8/23/13, RM underwent an EMG/NCV study of her lower extremity which revealed right L5-S1radiculopathy. On 3/22/13, RM saw Dr. Keith Preis. Her complaints at that time were headaches, neck pain, mid and low back pain, numbness and tingling in her left leg and numbness and tingling in her hands. Dr. Preis performed a physical examination of RM revealed decreased pinprick and cool temp left C6 and right L5 distribution, positive Tinel s, positive Phalen s test, positive straight leg raising test, positive Lasegue s test, positive Spurling s maneuver on the left, decreased range of motion in cervical and lumbar spine. Dr. Preis formed a diagnostic impression of headache vs. occipital neuralgia, closed head trauma, query cervical radiculopathy vs. neuropathy, myofascial pain syndrome, neuropathic pain syndrome, mild cognitive problems, sleep disorder thoracic sprain/strain and lumbar radiculopathy which he opined was causally related to RM s 2/20/13 automobile accident. He recommended that RM undergo a cervical and lumbar MRI. He prescribed medication for her neuropathic pain. Claimant submitted into evidence Dr. Preis 4/19 and 6/4/13 reports wherein she continued to complain of headaches, muscle spasms in her neck and back, neck pain which radiated into her right arm, mid and low back pain, numbness and tingling in her right leg and numbness and tingling in her hands and his physical examinations of RM revealed positive Tinel s, positive Phalen s test, positive straight leg raising test, positive Lasegue s test, positive Spurling s maneuver on the left, decreased pinprick and cool temp left C6 and right L5 distribution and decreased range of motion in cervical and lumbar spine. On 6/18/13, RM saw Dr. Preis. Her complaints at that time were headaches, neck pain which radiated into her right arm, numbness and tingling in her right arm, decreased handgrip, right wrist pain, spasms in her neck and back, mid and low back pain which radiated down the back of her right leg, numbness and tingling in her right leg, numbness and tingling in her right arm and hand, decreased handgrip and right wrist pain. Dr. Preis performed a physical examination of RM revealed positive Tinel s, positive Phalen s test, positive straight leg raising test, positive Lasegue s test, positive Spurling s maneuver on the left, decreased pinprick and cool temp left C6 and right L5 distribution and decreased range of motion in cervical and lumbar spine. Dr. Preis discussed the results of the EMG with RM and amended his diagnosis to include right carpal tunnel syndrome. He prescribed a right wrist splint for her to wear four hours a day, a cervical traction unit to help with her neck pain and an EMS unit to help with spasms. On 8/6/13, RM saw Dr. Preis. She complained of numbness and tingling down the legs and a burning pain into her right leg, headaches, neck pain, right arm pain, numbness and tingling in her hands and dropping thing from her hands. He noted that walking and standing caused more spasms and pain. Dr. Preis physical findings upon examination did not change from his prior examination of RM. Nor did his treatment plan change. On 8/23/13, RM saw Dr. Preis. She reported that she had received some improvement especially in the numbness in her right and some of the spasms as a result of using the cervical traction, EMS unit and NJ Page 3 of 17

4 right wrist splint. Dr. Preis physical findings upon examination did not change from his prior examination of RM. He recommended that she continue using the cervical traction and EMS unit and continue wearing the right wrist splint. He also recommended that she consult Dr. Lee for pain management. On 9/16/13, RM saw Dr. Young Lee. She complained of neck pain which radiated to her right upper extremity, numbness and tingling in her upper extremities and hands, mid back pain and low back pain which radiated down her right lower extremity with numbness and tingling in her right leg. Dr. Lee performed a physical examination of RM which revealed positive Spurling s maneuver, positive straight leg test on the right, tenderness on cervical facet joints from C3 to C7, trigger points in her lumbar spine, positive facet loading maneuver and decreased range of motion in her lumbar spine. Dr. Lee formed a diagnostic impression which included lumbar radiculopathy, annular tear at L4-5 and L5-S1, muscle spasms which he related to her 2/20/13 automobile accident. Dr. Lee recommended that RM under a lumbar epidural injection. He ordered a lumbar spine to relieve her lower back pain. He recommended that she continue using the EMS unit to increase blood flow to her muscles, increase her range of motion and muscle strength as well as to enhance her muscle endurance and or alleviating muscle atrophy and for her to continue wearing the right wrist brace for relieving her symptoms from the right carpal tunnel syndrome. Claimant submitted into evidence Dr. Preis Statement of Medial Necessity dated 6/18/13 wherein he opined that RM needed to use cervical traction, an EMS unit and a right carpal tunnel brace to treat an relieve chronic and irretraceable pain, alleviate and reduce muscle spasms, swelling or inflammation. Respondent submitted into evidence claimant s 6/20/13 fax transmittal to respondent of Dr. Keith Preis 6/20/13 APTP for a cervical traction unit, an EMS unit and EMS unit supplies to be purchased between 6/20/13 and 6/20/1/14. Respondent submitted into evidence Procura s 6/25/13 fax transmittal to claimant of its denial of claimant s APTP wherein it requested the purchase of an EMS unit, EMS unit supplies and cervical traction based upon the report of Dr. Mormino. The aforementioned letter further advised that [i]n accordance with the Allstate New Jersey Insurance Company and Allstate New Jersey Property and Casualty Insurance Company DPR Plan, any properly submitted 1st Level Appeal that has not been resolved must be referred to Allstate New Jersey Insurance Company and Allstate New Jersey Property and Casualty Insurance Company directly, for a 2nd Level Appeal process, at the following address: Allstate New Jersey Insurance Company and Allstate New Jersey Property and Casualty Insurance Company, Attention: 2nd Level Appeals, P.O. Box 250, Pluckemin, New Jersey Claimant submitted into evidence its 7/31/13 fax transmittal to respondent of Dr. Keith Preis 7/31/13 APTP for a cervical traction unit, an EMS unit and EMS unit supplies to be purchased between 7/31/13 and 7/31/14. Respondent did not submit into evidence its response to claimant of its 7/31/13 precertification request for a cervical traction unit, an EMS unit and EMS unit supplies to be purchased between 7/31/13 and 7/31/14. There was no response from respondent to Dr. Preis regarding his 7/31/13 APTP for a cervical traction unit, an EMS unit and EMS unit supplies to be purchased between 7/31/13 and 7/31/14 submitted into evidence. NJ Page 4 of 17

5 Claimant submitted into evidence its 9/20/13 fax transmittal to respondent of Dr. Lee s 9/20/13 APTP wherein he requested the purchase of a back brace between 9/20/13 and 9/20/14. Respondent submitted into evidence Procura s 9/24/13 fax transmittal to claimant of its denial of claimant s APTP wherein it requested the purchase of a lumbar brace based upon the report of Dr. Park. The aforementioned letter further advised that [i]n accordance with the Allstate New Jersey Insurance Company and Allstate New Jersey Property and Casualty Insurance Company DPR Plan, any properly submitted 1st Level Appeal that has not been resolved must be referred to Allstate New Jersey Insurance Company and Allstate New Jersey Property and Casualty Insurance Company directly, for a 2nd Level Appeal process, at the following address: Allstate New Jersey Insurance Company and Allstate New Jersey Property and Casualty Insurance Company, Attention: 2nd Level Appeals, P.O. Box 250, Pluckemin, New Jersey Respondent submitted into evidence its DPRP. Respondent s DPRP provides in pertinent part on page 6 that a health care provider who accepts an assignment of benefits by an insured person shall utilize The Internal Appeal Process before filing arbitration. Failure to comply with the Decision Point Review/Pre-Certification Plan or the requirements of the Internal Appeal Process prior to filing litigation including arbitrations will void any and all prior assignments of benefits under this policy. Under the heading INTERNAL APPEAL PROCES on page 7, subsection entitled 2nd Level Appeal it states that any disputes not resolved through the 1st Level Appeal Process must be submitted to Allstate New Jersey Insurance Company/Allstate New Jersey Property and Casualty Insurance Company (ANJIC/ANJP&C) for a 2nd Level Appeal. No second level appeal may be filed until the 1st Level Appeal Process has been completed. The 1 st Level of Appeal process id described in detail on page 7 of respondent s DPRP submitted into evidence and states: If a health care provider disagrees with our determination related to decision point review, precertification or payment of medical expenses, the health care provider may submit an internal appeal for reconsideration of the decision. Consistent with the terms of the Decision Point Review Plan and the Assignment of Benefits provision a provider proceeding under an Assignment of Benefits must utilize the internal appeals process which shall be a condition precedent to the filing of a demand for alternative dispute resolution for any issue related to bill payment, bill processing, Decision Point Review Request or Precertification request. All appeals for reconsideration of a decision point review or precertification medical determination must include not only the basis for the appeal but also the medical criteria to support the dispute of a medical determination. All appeals for reconsideration must be submitted no later than 30 calendar days from the date of the adverse determination. The injured party, and/or health care providers, may be requested to submit additional documentation in order to complete the internal review. Requests for reconsideration must be submitted in writing to Procura Management Inc. via fax to Procura Management Inc. at or via to Procura Management Inc. at AIMS-ANJ@procura-inc.com. Any notice of a 1st Level Appeal not sent via the aforementioned fax or address, must be submitted, via certified mail/return receipt requested or via courier that provides proof of delivery to Procura NJ Page 5 of 17

6 within 30 calendar days from the date of the adverse determination. Proof of receipt by the insurer must be provided by the disputing party at the insurer s request. The 2nd Level of Appeal process is described in detail on pages 7 and 8 of respondent s DPRP submitted into evidence and states: To initiate a 2nd Level Appeal, you must submit written notice of the dispute to ANJIC/ANJP&C at least 30 days prior to filing a Demand for Arbitration. Such notice shall be submitted to ANJIC/ANJP&C in writing via fax at or via at BC2ndlevelappeal@allstate.com Any notice of a 2nd Level Appeal not sent via the aforementioned fax or address must be submitted via certified mail/return receipt requested or via courier that provides proof of delivery to ANJIC/ANJP&C 30 days prior to the filing of the arbitration. Proof of receipt by the insurer must be provided by the disputing party at the insurer s request. The written notice shall set forth the basis of the appeal and the facts underlying the dispute as well as include copies of all relevant supporting documents, including, but not limited to, any unpaid medical bills for medical expenses that may be in dispute and sent to us at the following fax number: All properly submitted 2nd Level Appeal requests will be reviewed by the Insurer within 30 calendar days from calendar days of receipt of the properly submitted request. During this time, you shall cooperate with the insurer in the investigation of the dispute and negotiate in good faith with the insurer in an effort to resolve the dispute amicably. Pursuant to N.J.A.C. 11:3-5.1, any appeal properly submitted that has not been resolved through the internal appeal process may be submitted to Alternate Dispute Resolution. Respondent did not submit into evidence its proof of mailing of its DPRP to RM, Dr. Keith Preis, Dr. Young Lee or claimant. Claimant submitted into evidence its 10/10/13 fax transmittal to of its Appeal of respondent s denial of its 9/20/13 APTP for the purchase of a lumbar brace. Respondent submitted into evidence Procura s 10/14/13 fax transmittal to claimant wherein it acknowledged receipt of its Appeal request regarding its denial of its 10/10/13 APTP and that the Appeal would not be processed because it failed to submit additional documents than what was previously submitted. Respondent submitted into evidence Procura s 10/14/13 fax transmittal to claimant wherein it acknowledged receipt of its 1 st level Appeal and advised that the Appeal would not be processed because it failed to submit additional documents than what was previously submitted. Respondent submitted into evidence its 12/13/13 letter to claimant denying payment of its invoice for the EMS unit supplies it sold to RM on 11/11/13. Claimant submitted into evidence its 1/9/14 fax transmittal to of its Appeal of respondent s denial of payment of its invoice for the EMS unit supplies it sold to RM on 11/11/13. Respondent submitted into evidence Procura s 1/13/14 fax transmittal to claimant wherein it acknowledged receipt of its Appeal request regarding its denial of payment of its invoice for the EMS NJ Page 6 of 17

7 unit supplies it sold to RM on 11/11/13 and that the Appeal would not be processed because it was received more than 30 days after it was notified of the adverse determination. It is the bill for the cervical traction unit, right carpal tunnel brace, EMS unit, EMS unit supplies and lumbar brace that claimant sold to RM that is alleged to be unpaid and is at issue herein. Claimant contends that it did comply with respondent s Internal Appeal Process as evidenced by its fax transmittals of its Notice of Appeal, thus, it has standing to proceed with its claim. Claimant contends that respondent is estopped from disputing medical necessity of the cervical traction unit, right carpal tunnel brace and EMS unit that it sold to RM on 8/7/13 as well as the EMS unit supplies that it sold to RM on 8/7, 9/9, 10/9, 11/11, 12/11/13 and 1/14/14 because respondent failed to reply to its 7/31/13 precertification request for the purchase of a cervical traction unit, right carpal tunnel brace and EMS unit. Claimant contends that respondent is estopped from disputing medical necessity of the lumbar brace that it sold to RM on 9/30/13 because respondent failed to timely reply to its 9/20/13 precertification request for the purchase of a lumbar brace. Claimant submitted Dr. Preis reports, letter of medical necessity and appeals in support of its contention that the cervical traction unit, right carpal tunnel brace and EMS unit that it sold to RM on 8/7/13 as well as the EMS unit supplies that it sold to RM on 8/7, 9/9, 10/9, 11/11, 12/11/13 and 1/14/14 is established by a preponderance of the evidence as reasonable and medically necessary to treat the injuries RM sustained as a result of her 2/20/13 automobile accident. Claimant submitted Dr. Lee s reports, letter of medical necessity and appeals in support of its contention that the lumbar brace that it sold to RM on 9/30/13 is established by a preponderance of the evidence as reasonable and medically necessary to treat the injuries RM sustained as a result of her 2/20/13 automobile accident. Claimant contends that the 2013 New Jersey Fee Schedule contains the amount it is entitled to receive for CPT Code L0631, the lumbar brace, it sold to CS and therefore the code should not be crosswalked to another code. Claimant contends that respond has not submitted an expert opinion which refuted the opinion of Dr. Lee who prescribed this particular lumbar brace for RM. Respondent contends that claimant is barred from filing this arbitration because it failed to comply with its Internal Appeal Process because it failed to timely fax its Internal Appeals to respondent as required under the Plan. Should claimant be found to have standing, respondent contends that it properly denied payment of the DME claimant sold to RM based upon the reports of Dr. Joseph Mormino and Dr. Kenneth Park wherein they opined that that medical necessity had not been showed for the DME as the documentation was illegible and did not contain a history of the accident, the injuries RM sustained as a result of the accident, prior treatment received and her response to the treatment and a clinical examination of RM, that efficacy for lumbar support brace had not been established to provide long term benefit in peer reviewed studies and that RM s examination did not demonstrated signs of lumbar instability. Respondent contends that should it be determined that the lumbar brace is medically necessary, then CPT Code L0631 should be cross walked to CPT Code K0640 as the back braces are similar. Respondent submitted and relied upon DRP Reynolds decision in At Home Medical Equipment a/s/o MN v. Allstate, Forthright # , in support of its contention that the lumbar brace claimant sold to CS is almost identical and similar in nature to K0640. Where there is a dispute on the issue of medical necessity, the claimant bears the burden of proof to a preponderance of the evidence to establish that treatment for which PIP payment is sought was reasonable, medically necessary and causally related to an automobile accident. Miltner v. Safeco Ins. Co. of America, 175 N.J. Super. 156 (Law Div. 1980). NJ Page 7 of 17

8 Medically Necessary is defined in N.J.A.C. 11: as medical treatment or diagnostic testing which is consistent with the clinically supported symptoms, diagnosis or indications of the injured person. Clinically supported is further defined as encompassing a personal examination in which the physician makes an assessment of subjective testing, complaints, observations, objecting findings, neurologic indications and physical tests. The necessity of medical treatment is a matter to be decided in the first instance by the claimant's treating physicians, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on the credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Thermographics Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491 (1991). Where there is a conflict of testimony of medical experts, generally greater weight is to be given to the testimony of the treating physician. Mewes v. Union Bldg. & Construction Co., 45 N.J. Super. 89 (App. Div. 1957); Bialko v. H. Baker Milk Co., 38 N.J. Super. 109 (App. Div. 1955); Abelit v. General Motors Corp., 46 N.J. Super. 475 (App. Div. 1957). While it is true that the opinion of a treating provider is not entitled to a conclusive presumption of accuracy, Black & Decker Disability Plan v. Nord, 123 S.Ct (2003) (relating to ERISA Plans), it is accorded an appropriate measure of deference. The Administrative Code defines "clinically supported" as meaning that a health care provider prior to selecting, performing or ordering the administration of a treatment or diagnostic has "(1) personally examined the patient to insure that the proper medical indications exist to justify ordering the treatment or tests; (2) physically examine the patient including making an assessment of any current and/or historical subjective complaints, observations, objective findings, neurologic indications and physical tests; (3) considered any and all previously performed tests that relate to the injury ; (4) recorded and documented these observations " In the absence of such clinical support, medical necessity cannot be maintained. Further, after treatment to effectuate a cure or rehabilitation has ended and the patient s condition has plateaued, medical expenses for palliative treatment may continue, but only to the extent that such expenses are deemed reasonable and necessary. The reasonableness and necessity of palliative expenses must be evaluated in the context of the quantum of pain involved, plaintiff s tolerance of pain and the overall effect of the pain on plaintiff s life. Perun v. Utica Mutual Ins. Co., 280 N.J. Super. 280, (Law Div. 1994). The services must be shown by competent medical testimony to be such as are reasonable and necessary for the particular patient, taking into consideration his individual condition and need. Howard v. Harwood s Restaurant Co., 25 N.J. 72 (1957). In determining what is reasonable and necessary, the touchstone is not the (patient s) desires or what he (sic) thinks is to be most beneficial. Rather it is what is shown by sufficient competent evidence to be reasonable and necessary to cure and relieve him (sic). Squeo v. Comfort Control Corp., 99 N.J. 588 (1995).N.J.S.A. 39:6A-4(a) provides that medical treatment, diagnostic tests and services provided by the policy shall be rendered in accordance with commonly accepted protocols and professional standards and practices. Protocols shall be deemed to establish guidelines as to standard appropriate treatment for injuries sustained in automobile accidents. Those guidelines are set forth in the Care Paths. The Care Paths are recommended extensive courses of care based on professional recognized standards. The Care Paths identify typical courses of intervention. That is, the Care Paths were promulgated to establish the typical treatment protocols for neck and back injuries as a measuring stick to help determine whether treatment is medically necessary. There may be patients who require more or less treatment. However, cases that deviate from the Care Paths may be subject to more careful scrutiny and may require documentation of special circumstances to justify the deviations. Deviations may be justified by individual circumstances, NJ Page 8 of 17

9 such as pre-existing conditions and/or co-morbidities. The Care Paths encourage result oriented medical treatment practices. The guidelines established in the Care Paths are designed to avoid the continuation of treatment and therapy, week after week, over many months and years without any observable improvement. Such practice is not only wasteful, but may cause a patient to suffer unnecessarily before more effective and beneficial care might be available from a different type of treatment. The Care Paths, then, do not deprive the patient of the opportunity to seek the treatment of choice, but rather they encourage alternative choices if a treatment plan becomes unproductive. Comments of DOBI, December 21, N.J.A.C. 11:3-4.6(c) provides that treatments that vary from the Care Paths shall be reimbursable only when warranted by reason of medical necessity. Palliative care is compensable under PIP when it is medically reasonable and necessary. Elkins v. N.J. Manufacturers Insurance Co., 244 N.J. Super. 695 (App. Div. 1990). After treatment to effectuate a cure or rehabilitation has ended and the patient s condition has plateaued, medical expenses for palliative treatment may continue, but only to the extent that such expenses are deemed reasonable and necessary. The reasonableness and necessity of palliative expenses must be evaluated in the context of the quantum of pain involved, plaintiff s tolerance of pain and the overall effect of the pain on plaintiff s life. Perun v. Utica Mutual Insurance Company, 280 N.J. Super 280, (Law Div. 1994). The services must be shown by competent medical testimony to be such as are reasonable and necessary for the particular patient, taking into consideration his individual condition and need. Howard v. Harwood s Restaurant Company Rest. Co., 25 N.J. 72 (1957). In determining what is reasonable and necessary, the touchstone is not the (patient s) desires or what he (sic) thinks is to be most beneficial. Rather it is what is shown by sufficient competent evidence to be reasonable and necessary to cure and relieve him (sic). Squeo v. Comfort Control Corp., 99 N.J. 588 (1995). N.J.A.C. 11:3-4.7(c)(4) requires that a decision point review plan filing shall include procedures for prompt review, not to exceed three business days of decision point review and precertification requests by insureds or providers. All determinations on treatment or tests shall be based on medical necessity and shall not encourage over or under utilization of benefits. Denials of decision point review and precertification requests on the basis of medical necessity shall be the determination of a physician. N.J.A.C. 11:3-4.7(c)(4) requires that a decision point review plan filing shall include procedures for prompt review, not to exceed three business days of decision point review and precertification requests by insureds or providers. All determinations on treatment or tests shall be based on medical necessity and shall not encourage over or under utilization of benefits. Denials of decision point review and precertification requests on the basis of medical necessity shall be the determination of a physician. Where a decision point review or precertification request for the treatment was properly submitted to the insurer, the insurer shall not retrospectively deny payment for treatment diagnostic testing or durable medical equipment on the basis of medical necessity, unless the request involved fraud or misrepresentation, as defined in N.J.A.C. 11: by the provider or person receiving the treatment, diagnostic testing or durable medical equipment. N.J.A.C. 11:3-4.7(g). N.J.A.C. 11:3-4.7 specifically refers to requests for Decision Point Review/Pre-Certification as emanating from providers. Pursuant to N.J.A.C. 11:3-4.2, a provider is defined as those persons NJ Page 9 of 17

10 licensed or certified to perform health care treatment or services compensable as medical expenses and shall include, but not be limited to providers of other health care services or supplies, including durable medical goods. Pre-Certification is defined in the regulations as the procedure in an insurer s approved decision point review plan for the insurer to receive notice and respond to requests for listed specific medical procedures, treatments, diagnostic tests, other services and durable medical equipment N.J.A.C. 11: Failure to request decision point review or precertification where required or failure to provide clinically supported findings that support the treatment, diagnostic test or durable medical equipment requested shall result in an additional co-payment not to exceed 50% of the eligible charge for medically necessary diagnostic tests, treatments or durable medical goods that were provided between the time notification to the insurer was required and the time the proper notification is made and the insurer has an opportunity to respond in accordance with its approved decision point review plan. N.J.A.C. 11:3-4.4(e). Pursuant to N.J.A.C. 11:3-4.2, decision point means those junctures in the treatment of identified injuries indicated by hexagonal boxes on the Care Paths where a decision must be made about the continuation or choice of further treatment. The determination whether to administer one of the tests listed in N.J.A.C. 11:3-4.5(b) is also a decision point for both identified and all other injuries. Pursuant to N.J.S.A. 39:6A-4(2), benefits payable shall not be assignable, except to a provider of service in accordance with the policy terms approved by the commissioner. Pursuant to N.J.A.C. 11:3-4.7(c)(8), a decision point review plan filing shall include reasonable restrictions on the assignment of benefits pursuant to N.J.A.C. 11:3-4.9(a). Insurers may file for approval policy forms that include reasonable procedures for restrictions on the assignment of personal injury protection benefits, consistent with the efficient administration of the coverage. Insurers may not prohibit the assignment of benefits to providers. Reasonable restrictions include a requirement that as a condition of assignment, the provider agrees to follow the requirements of the insurer s decision point review plan for making decision point review and precertification requests. N.J.A.C. 11: See also Coalition for Quality Health Care v. DOBI, 348 N.J. Super. 272, (App. Div. 2002), where the Court stated it is thus clear that insurers may impose reasonable conditions on assignments. Id. at 315. Pursuant to N.J.A.C. 11:3-4.7(d)(9), the informational materials for policyholders, injured persons and providers shall include an explanation of the insurer s restrictions on assignment of benefits. Decision Point Review Plan filings shall include an internal appeals procedure that permits the provider to provide additional information and have a rapid review of a decision to modify or deny reimbursement for a treatment or the administration of a test. N.J.A.C. 11:3-4.7(c)(6). N.J.A.C. 11 :3-4.7(d)(8) requires that the insurer provide an explanation of the alternatives available to the provider if reimbursement for a proposed treatment, diagnostic test or durable medical equipment is denied or modified, including insurer s internal appeal process and how to use it. NJ Page 10 of 17

11 On 10/28/10 the New Jersey Department of Banking & Insurance issued Bulletin #10-30 which expressly deals with the use of an insurer's Internal Appeals Process prior to filing for arbitration. The Bulletin maintains that: " (A) number of DRPs have stated that there is no authority in Statute, the Administrative Code or in Case Law that would permit the insurer to bar providers access to the statutorily created dispute resolution process based upon the failure of the provider to comport with what one DRP described as, 'the unexplained terms conditions of an internal appeals process established by, shaped by, managed by and governed by the respondent carrier.' These DRPs have described the internal appeals process as an 'arbitrarily determined procedure.' Other DRPs have opined that the only 'penalty' permitted by the Decision Point Review Plan is a penalty deductible, not denial of a payment for claim. Still other DRPs have decided that it is 'unreasonable' to dismiss a provider's Demand for Arbitration for failure to submit an internal appeal within the required time frames in the insurer's Decision Point Review Plan. These arguments are contrary to the whole purpose of the appeals process and the Department's rules. In N.J.A.C. 11:3-4.9(a)(1), the Department permits insurers as part of an insured s' Assignment of Benefits to providers, to require the providers to comply with all requirements of the Decision Point Review Plans. Moreover, N.J.A.C. 11:3-4.7(c)(6) requires insurers' Decision Point Review Plan to contain an internal appeals process and such plans may require that the internal appeals process be exhausted prior the initiation of PIP arbitration. These limited restrictions on the Assignment of Benefits do not deny payment of a claim or prohibit a provider from accessing the statutorily mandated external dispute resolution process. They merely establish a pre-requisite for doing so. It is only reasonable and logical for insurers to require that, before using the expensive and lengthy external dispute resolution process, an insurer or provider under Assignment should first utilize the insurer's internal appeals process. The internal and external appeal processes established by the Department for Healthcare follow this pattern. Thus, where a provider agrees in an Assignment of Benefits to follow the requirements of the Decision Point Review Plans, the provider also agrees to comply with the insurer's internal appeals process contained therein, and with any penalties imposed in the plan for failure to comply with the internal appeals process. N.J.A.C. 11:3-29.4(e) states that an 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. 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 insurer determines the reasonableness of the provider s fee by comparison of its experience with that provider and with other providers in the region NJ Page 11 of 17

12 In Cobo v. Market Transition Facility, 293 N.J. Super. 374 (App. Div. 1996) set forth the burdens of each party where the issue of usual, customary and reasonable charges is raised. The health care provider will set its own customary fee, not the insurer or the insurer s auditor. Cobo at 386. The Appellate Court relied upon the following response by the Commissioner at 24 N.J.R (April 6, 1992) as guidance on this issue: the provider, in submitting the billings, makes the initial determination as to what his or her usual, customary and reasonable fee is. It is incumbent on the insurer, based on its experience with the particular provider or other providers in the region, to determine whether, in fact, the usual, customary and reasonable fee has been billed. The effectiveness of medical fee schedules in reducing the cost of automobile- insurance in New Jersey is dependent upon adherence by insurers to this review process while defendants certainly may retain independent auditors to review providers' bills to assure that they are charging their "usual and customary" rates, they may not ask auditors to set a reasonable fee and then apply that fee inflexibly." Cobo at 389. On October 28, 2010, the Department of Banking and Insurance issued Bulletin No which read in part: 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 v. Market Transition Facility, 293 N.J. Super. 374 (App. Div. 1996) as the authority for this position. 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. Department of Banking and Insurance, 410 N.J. Super. 6, (App. Div. 2009), 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. Both parties have submitted and relied upon the decisions of other DRPs in support of its respective positions which I have reviewed and considered. The awards are not binding in this matter as each of those DRPs received different evidence, may have heard different arguments and may have assigned different weight to a particular piece of evidence. The threshold issue regarding whether claimant has standing by way of assignment to pursue this arbitration must be determined first before the issues of whether respondent is estopped from disputing medical necessity of the DME, medical necessity of the DME and crosswalking are addressed. I find from respondent s DPRP submitted into evidence that it does include an Internal Appeals Process which sets forth in detail two levels of Appeals and requires a provider that has accepted an Assignment of Benefits to complete the Internal Appeal process regarding any dispute regarding decision point review, precertification, or payment of medical bills before filing arbitration. The requirement of compliance with respondent s two levels of Appeals is repeated on the 9/24/13 letter Procura faxed to claimant that NJ Page 12 of 17

13 was submitted into evidence. I find from claimant s Appeals submitted into evidence that it was aware of the requirements of complying with respondent s internal appeal process prior to filing its Demand for Arbitration. Respondent did not contend that claimant failed to file an internal appeal but rather than it did not timely file its Notice of Appeal within 30 days of the adverse determination. I find that respondent failed to submit into evidence its response to claimant s 7/31/13 APTP for the purchase of a cervical traction unit, right carpal tunnel brace, EMS unit and EMS unit supplies, its EOBs denying payment of the cervical traction unit that it sold to RM on 8/7/13, the right carpal tunnel brace that it sold to RM on 8/7/13, the EMS unit that it sold to RM on 8/7/13 or the EMS unit supplies that it sold to EM on 8/7, 9/9, 10/9, 12/11/13 and 1/14/14 or its letters to claimant setting forth a denial payment of the cervical traction unit that it sold to RM on 8/7/13, the right carpal tunnel brace that it sold to RM on 8/7/13, the EMS unit that it sold to RM on 8/7/13 or the EMS unit supplies that it sold to EM on 8/7, 9/9, 10/9, 12/11/13 and 1/14/14. After considering the evidence submitted, I find that it was not necessary for claimant to file an Internal Appeal prior to filing this arbitration since respondent never provided claimant with a written denial of the DME in issue which would trigger the requirement of respondent s Internal Appeal Process. After considering the evidence submitted, I find that claimant complied with the requirements of the respondent's Decision Point Review Plan and has standing to bring its claim for payment of the cervical traction unit that it sold to RM on 8/7/13, the right carpal tunnel brace that it sold to RM on 8/7/13, the EMS unit that it sold to RM on 8/7/13 or the EMS unit supplies that it sold to EM on 8/7, 9/9, 10/9, 12/11/13 and 1/14/14. Respondent submitted into evidence Procura s 12/13/13 letter to claimant enclosing its EOB setting forth the basis of the nonpayment of the EMS unit supplies that claimant sold to RM on 11/11/13 which triggered the requirement of claimant to file an Appeal. I find from claimant 1/9/14 fax transmittal to respondent of its Appeal of respondent s denial of payment of its invoice for the EMS unit supplies it sold to RM on 11/11/13 and respondent s 1/13/14 fax transmittal to claimant wherein it acknowledged receipt of its Appeal request regarding its denial of payment of its invoice for the EMS unit supplies it sold to RM on 11/11/13 that claimant timely filed a 1 st Level Appeal in accordance with respondent s DPRP. I find from respondent s 1/13/14 fax transmittal to claimant wherein it acknowledged receipt of its Appeal request regarding its denial of payment of its invoice for the EMS unit supplies it sold to RM on 11/11/13 and that the Appeal would not be processed because it was received more than 30 days after it was notified of the adverse determination that since respondent would not process its 1 st Level Appeal, it was not necessary for claimant to file a 2 nd Level Appeal regarding respondent s non payment of the EMS unit supplies that it sold to RM on 11/11/13. After considering the evidence submitted, I find that claimant complied with the requirements of the respondent's Decision Point Review Plan and has standing to bring its claim for payment of the EMS unit supplies that it sold to RM on 11/11/13. Respondent submitted into evidence Procura s 9/24/13 fax transmittal to claimant of its denial of claimant s 9/20/13 APTP for the purchase of a lumbar brace which triggered the requirement of claimant to file an Appeal. I find from claimant 10/10/13 fax transmittal to respondent of its Appeal of respondent s denial of its precertification request for the purchase of a lumbar brace and Procura s 10/14/13 fax transmittals to claimant wherein it acknowledged receipt of its Appeal request regarding its denial of its 10/10/13 APTP and that the Appeal would not be processed because it failed to submit additional documents than what was previously submitted that claimant timely filed a 1 st Level Appeal in accordance with respondent s DPRP. From respondent s DPRP submitted into evidence I find that respondent s DPRP does not require a provider to submit new documents but the basis for the appeal and the medical criteria to support the dispute of a medical determination. I find from claimant s 10/10/13 cover sheet wherein it states that: [p]lease carefully review all enclosed clinical notes, NJ Page 13 of 17

14 dictation an d/or letter of medical necessity from the ordering physician outlining the need for these items which preceded 6 pages of documents including Dr. Lee s 9/16/13 report and prescription that claimant set forth the basis for its appeal as well as supplied respondent with the medical criteria to support the dispute of a medical determination within 30 days of his receipt of the adverse determination. Since respondent refused to process its 1 st Level Appeal, I find that claimant was not required to file a 2 nd Level Appeal with respect to respondent s denial of its 10/10/13 APTP for the purchase of a lumbar brace. After considering the evidence submitted, I find that claimant has proven by a preponderance of the evidence that it followed an express requirement of the respondent's DPRP and filed an Appeal, which requirement is a condition precedent to the filing of the demand for Alternative Dispute Resolution. Respondent did not submit into evidence its EOB denying payment of claimant s invoice for the purchase of a lumbar brace or its written denial to respondent of its non-payment of claimant s invoice for the purchase of a lumbar brace, thus, it was not necessary for claimant to file an Internal Appeal with respect to respondent s non-payment of its invoice for the lumbar brace that it sold to RM on 9/30/13 since respondent never provided claimant with a written denial of the treatment in issue which would trigger the requirement of respondent s Internal Appeal Process. Therefore, I find that claimant has standing to proceed with its claim for payment of the lumbar brace it sold to EM on 9/30/13. I find that claimant has established by a preponderance of the evidence that it properly submitted to respondent its request for the purchase of a cervical traction unit, right carpal tunnel brace, EMS unit and EMS unit supplies before selling same to RM. From the fax transmittal and fax cover sheet submitted into evidence which contain claimant s name, address, telephone number and fax number as well as from the statement on its 7/31/13 fax cover sheet [p]lease review the attaching for authorization on the above named patient. Please respond back within 72 hours. As per regulations, At Home Medical Equipment is a provider in accordance with N.J.A.C. 11: Please send all responses to this request for precertification to that respondent knew or should have known that claimant submitted a precertification request for the purchase of a lumbar brace and was waiting to receive a reply from respondent. Pursuant to its PLAN and N.J.A.C. 11:3-4.7 and 4.8, respondent had 3 days to respond to claimant with an authorization, denial or schedule for an IME. Pursuant to its PLAN and N.J.A.C. 11:3-4.7 and 4.8, respondent was required to advise claimant, as a provider under the regulations and the entity that actually requested the cervical traction unit, right carpal tunnel brace, EMS unit and EMS unit supplies was denied. After consider the evidence submitted, I find that respondent failed to comply with its PLAN and N.J.A.C. 11:3-4.7 and 4.8 and failed to respond to claimant s 7/31/13 pre-certification request for the purchase of a cervical traction unit, right carpal tunnel brace, EMS unit and EMS unit supplies and is estopped from now challenging medically necessity of the cervical traction unit, right carpal tunnel brace, EMS unit and EMS unit supplies. After considering all of the evidence submitted, I find that claimant has proven by a preponderance of the evidence that the cervical traction unit, right carpal tunnel brace, EMS unit and EMS unit supplies it sold to RM was medically necessary. Therefore, I award claimant $3, ($ $ $ $1,143.12) for the cervical traction unit, right carpal tunnel brace, EMS unit and EMS unit supplies it sold to RM. I find that on Friday 9/20/13, claimant faxed to respondent its 9/20/13 APTP for the purchase of a lumbar brace. On Tuesday 9/24/13, Procura faxed to claimant its denial of claimant s 9/20/13 APTP. I find that respondent timely faxed its response to claimant of its APTP for the purchase of a lumbar brace and, thus, is not estopped from disputing medical necessity. NJ Page 14 of 17