A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS

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1 CASE NO. 18 Z A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS In the Matter of the Arbitration between (Claimant) AAA CASE NO.: 18 Z v. INS. CO. CLAIMS NO.: ALLSTATE NEW JERSEY INSURANCE COMPANY DRP NAME: Kate Rabassa Wallen (Respondent) NATURE OF DISPUTE: Fee Schedule, Reasonable and Necessary, Material Misrepresentation AWARD OF DISPUTE RESOLUTION PROFESSIONAL I, THE UNDERSIGNED DISPUTE RESOLUTION PROFESSIONAL (DRP), designated by the American Arbitration Association under the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey, adopted pursuant to the 1998 New Jersey Automobile Insurance Cost Reduction Act as governed by N.J.S.A. 39:6A-5, et. seq., and, I have been duly sworn and have considered such proofs and allegations as were submitted by the Parties. The Award is DETERMINED as follows: Injured Person(s) hereinafter referred to as: Insured. 1. ORAL HEARING held on 7/8/ ALL PARTIES APPEARED at the oral hearing(s). NO ONE appeared telephonically. 3. Claims in the Demand for Arbitration were AMENDED and permitted by the DRP at the oral hearing (Amendments, if any, set forth below). STIPULATIONS were not made by the parties regarding the issues to be determined (Stipulations, if any, set forth below). Cherry Hill Pain & Rehabilitation - $20, FINDINGS OF FACTS AND CONCLUSIONS OF LAW: The issue in the case involves treatment by Dr. Anna Lee of Cherry Hill Pain & Rehabilitation. Respondent alleges that (1) IMS treatments were not medically necessary and are experimental; (2) Dr. Lee made material misrepresentations to obtain insurance benefits and therefore, is not entitled to benefits and (2) because the treatments were not certified, the requests for reimbursement were properly rejected.

2 CASE NO. 18 Z With respect to IMS treatments provided to the insured, respondent relies upon the opinion of Dr. Robert Null, medical director at NHR, who stated that IMS has not been generally accepted, and internet information from The Regence Group (Blue Cross Blue Shield in the states of Idaho, Oregon, Utah and Washington) indicating that "Dry needle stimulation and trigger point injection with saline or glucose are considered investigational due to insufficient evidence to permit conclusions concerning the effect of dry needle stimulation and injection of saline alone or glucose on the health outcomes of patients with myofascial pain syndrome." Claimant relies on the following references and documents contained within a packet of "Informative Documentation on the Medical Services Provided by the Cherry Hill Pain and Rehab Institute" to support the use of IMS (dry needle) treatments: The Gunn Approach to the Treatment of Chronic Pain: Intramuscular Stimulation ofr Myofascial Pain of Radiculopathic Origin (by Dr. C. Chan Gunn), Myofascial Pain and Dysfunction: The Trigger Point Manuals (by Dr. Janet Tavell and Dr. David Simons), EOB statements from other insurance companies reflecting payment for IMS treatment, IME reports of Dr. John Nolan, Dr. Louis Spagnoletti (describing Dr. Lee's treatment as trigger point releases after a telephone conversation he had with Dr. Lee), Dr. Vincent Padula, Dr. William Anthony, and Dr. Mark Reiner, all of whom recommended continued IMS treatments, and pre-certification approval by Dr. Clay Miller, MD for Liberty Mutual in which he indicates "The IMS therapy is not considered investigational, and Peer Reviewed scientific research supports the use for these diagnoses." I find based on the evidence presented that IMS is not experimental. With respect to medical necessity, respondent relies upon the 5/8/01 report of Dr. Zohar Stark who concludes that there were no objective findings and claimant reached maximum benefit from treatment. I have reviewed Dr. Lee's progress notes and reports dated 2/7/01, 3/19/01, 4/24/01, 5/1/01 and 5/14/01. Throughout the patient's treatment between 4/17/01 and 10/3/02, the progress reports set forth a frequency plan of 2 times per week. The insured testified at her EUO that she got an evaluation when Dr. Lee wanted to drop her treatments from once a week to two weeks. No report of any reevaluation was provided, nor is there any indication on the progress notes of when this occurred. In fact, the insured at pages of her EUO apparently was the one who asked Dr. Lee if she could drop her treatments down from once a week, and then when she wanted to drop them again because she was feeling better, she talked to her. According to the billing records, the insured received weekly IMS treatment fairly consistently through the end of 2001 and then it dropped to every other week and then monthly. Dr. Lee indicated in her 5/14/01 report that frequency would be tapered when relief is greater than 50%. In addition, in the first progress report, the goal is noted to obtain greater than 50% pain relief on a verbal scale of 0-10 in 24 IMS treatments. When the insured reaches greater than 50% pain relief, a re-evaluation would be made for continued treatment. At the 24th treatment, there is no evaluation in the progress note, nor any change in plan. Her pain level is noted to be at 7/10 compared to the first recorded level of 6/10 following her second treatment. As of treatment number 38, the pain level is rated at 9/10 and apparently, there was no improvement with the administration of IMS treatment. In that progress note, treatment was to be increased to twice a week due to left forearm pain. However, no such increase in treatment occurred.

3 CASE NO. 18 Z It does appear that treatment frequency was decreased when the pain level dropped from an 8/10 to a 3-4/10 around April of The pain level was also in this range during visits between 6/27/01 and 7/16/01. I find that the IMS treatments were medically necessary on a weekly basis through 7/15/01 and on a biweekly basis thereafter. There is insufficient evidence presented by way of treatment plans to support frequent treatment. Respondent asserts that Dr. Lee has made repeated material misrepresentations to it and that the policy should be void and the benefits denied. Respondent relies upon Dr. Lee's HCFA forms, progress reports as well as the insured's exam under oath. The two primary alleged material misrepresentations claimed involve CPT codes used for IMS (intramuscular stimulation) procedures and the billing of office visits under CPT code With respect to the billing of office visits under CPT code 99212, Dr. Lee billed this code for dates of service between 4/9/01and 9/14/01. (Dr. Lee is not seeking reimbursement of those office visits in this action.) Her progress notes during this time period generally represent that fifteen minutes of evaluation and management (E & M) and ten minutes of counseling were performed and signatures of both a doctor (Dr. Lee or Dr. Ko) and a licensed practical nurse (LPN) were found on the progress notes. During this time period, the insured generally received IMS treatment, aquamed therapy, myofascial release and hot and cold packs according to the HCFA forms. Dr. Lee also billed for the needles used in the IMS procedure through 10/16/01 under CPT code A4556. The first issue to be addressed is whether the billing of office visits under CPT code when no physical examination was done by Dr. Lee during the time period in question rises to the level of misrepresentation of a material fact or circumstance relating to the insurance. Dr. Lee, through her attorney, asserts that no fraud was committed because two out of the three components of billing for a low level office visit (CPT code 99212) were met in this case as required by the AMA's CPT code book: a problem focused history (met according to insured's attorney by the form filled out by the insured on each visit which the insured testified to doing at her EUO) and straight forward medical decision making (deciding which muscle groups should receive IMS based on the form filled out by the insured). The CPT code book page was not submitted but respondent did not challenge claimant's representation of what it states. The medical fee schedule under N.J.A.C. 11:3-29.4(o) contemplates a re-examination when it states: "Follow up evaluation and management services for the re-examination of an established patient shall be reimbursed in addition to physical medicine and rehabilitation procedures only when any of the circumstances set forth in (o) one through four below is present and not more than twice in any thirty days." As set forth in subparagraph 4, one of the requirements for reimbursement as a separately identifiable evaluation and management service is that "it is medically necessary to provide evaluation services over and above those normally provided during therapeutic services." In this case, I find that what Dr. Lee billed under CPT code was the evaluation service normally provided prior to the IMS procedure. Essentially, Dr. Lee billed for a low level office visit for the review of the form the insured filled out listing her reaction

4 CASE NO. 18 Z to the last IMS treatment and pain rating when coming into the office. If the patient's complaints are necessary in order to determine what areas of the body to treat with IMS, this is no different than the complaints obtained from a patient by a chiropractor before he or she performs an adjustment or a physical therapist before he or she performs physical therapy. Dr. Lee is not seeking reimbursement of CPT code in this proceeding, even though it had been billed. Essentially, Dr. Lee unbundled that part of the IMS procedure which was necessary to performing IMS. Is that unbundling, reflected by Dr. Lee's billing of CPT code 99212, a material misrepresentation? Weighing the evidence presented by both sides, I find that respondent has not met its burden of proof. To the extent that Dr. Lee met two out of three components of CPT code as argued by claimant and not challenged by respondent at the hearing, I do not find that there was a material misrepresentation. (I note that CPT code is described in the medical fee schedule as having no physician present.) I have read the EUO of the insured taken on 4/3/03 and find that it is clear Dr. Lee delegated much of the providing of IMS treatments to her nurses. The insured confirmed that she did not see Dr. Lee at the majority of visits. There is no allegation by respondent that providing IMS treatments is not delegable to LPNs. Dr. Lee changed her billing practices on 9/28/01. Prior to that date, she billed IMS under CPT code 97779; subsequent to that date, she used CPT code Respondent argues that billing under this code which is a surgical code is improper as a material misrepresentation especially where the procedure is delegated to nurses. The administrative code, N.J.A.C. 11: was amended effective 5/21/01 and 7/16/01 to address certain fees that providers were billing for the purpose of increasing medical fees. One of the changes was to place a $90.00 per day cap on Physical Medicine and Rehabilitation procedures (CPT through 98929). Since this amendment, at least acupuncture (which is performed by a medical doctor and not delegated) has been removed from the scope of procedures to which the cap applies. Dr. Lee testified that she hired a consultant to review her practice of billing the IMS procedure under CPT code and the consultant suggested using CPT code because she is treating a nerve injury. Dr. Lee also testified that she made the change due to the cap imposed for treatments billed under CPT codes and Also prior to 9/28/01, Dr. Lee improperly unbundled the "office visit" and billed CPT code Prior to 9/28/01, her progress notes included references to total time of visit (E&M) for fifteen minutes with this patient and total time of counseling for ten minutes. Dr. Lee's billing and record-keeping practices have been aggressively tailored to maximize her recovery under the No-Fault statute. Respondent has the burden of proving that these practices were rose the level of material representation sufficient enough for a finding fraud. Dr. Lee attempts to explain the "reasonableness" of her billing practices in a 5/16/03 informative letter addressing IMS procedures as effective. In the cost analysis section of her submission, Dr. Lee points out that trigger point injections performed by medical doctors are billed under CPT code and reimbursed at a rate of $67.00 per unit of

5 CASE NO. 18 Z the injection. (She testified under cross-examination that when she first started performing IMS six years ago, she billed under CPT code 20550). She indicates that it is quite common for one office visit for trigger point injections to take no more than ten to fifteen minutes of a practitioner's time, involved minimal expenditure and be billed at a minimum of $ for four injections. She describes the IMS procedure as taking a minimum of sixty minutes in treatment time alone due the fifty to eighty needle insertions through the skin and up to five hundred trigger point insertions. However, this time is LPN time, not doctor time. Time spent by an LPN cannot be compared to time spent on a non-delegable procedure performed by a doctor, as in trigger point injections. She lists the considerable expenditures of: physician's time and effort, nurse's compensation, precertification coordinator's compensation, receptionist's compensation, manufacture and acquisition of each intramuscular stimulator, value of research and development of technology for the intramuscular stimulator patent and FDA approval, maintenance of the intramuscular stimulator, monthly overhead, premedication, disposable needles, syringe, cotton balls, alcohol wipes, disposal latex gloves, disposable face shields, disinfectant to clean treatment table, costs of maintaining patient gowns and linens, miscellaneous office supply expenses, and physician efforts to obtain reimbursement for the IMS procedure to justify her charges. She also indicates as she did in her testimony that it is her understanding that Dr. Jennifer Chu who performs IMS procedures at the University of Pennsylvania Hospital, charges $ in cash per treatment as a way to justify Dr. Lee's current $ charge to the insurance companies as being "more than reasonable". Dr. Lee does not indicate whether Dr. Chu herself performs the IMS treatments or has nurses on staff at the University of Pennsylvania Hospital who do it. That is also the distinction that Dr. Lee fails to note between trigger point injections billed by physicians under CPT code and her IMS treatment which is performed by her nurses. Dr. Lee testified on cross-examination that the price she charged for the IMS treatment increased from $ to $ when she adjusted her billing practices to bill IMS under CPT code rather than CPT code because the new code (64999) included needles, office visits and all incidentals. However, as I previously held, the charging for separate office visits (CPT code and 99212) amounted to improper unbundling. I find that the component of the fee charged under CPT representing an "office visit" is improper. However, I do not find that Dr. Lee's change in her billing practice (from CPT code to 64999) was a material misrepresentation. Neither party provided the CPT code book's description of CPT code Claimant's attorney asserted during the hearing that there are other non-surgical nervous system CPT codes in the range that are delegable to nurses. Respondent argues that IMS treatments should be treated as trigger point injections and reimbursed at the fee schedule amount of $67.00 for CPTcode (relying on internet information from the Washington Department of Labor and Regence group listing intramuscular stimulation under trigger point injections). Trigger point injections are not delegable. They are performed by the physician and take approximately 15 minutes of physician time as explained by Dr. Lee in "Informative Documentation." In this case, although the treatment involves needling, it is a delegable procedure lasting from 45 minutes to one hour, delegated by Dr. Lee to LPNs. Because the procedure is only performed by a few providers throughout the country, and Dr. Lee and Dr. Chu are the

6 CASE NO. 18 Z only ones utilizing an automated machine rather than manually performing IMS, there is no "database" available for a UCR evaluation. It is unknown whether Dr. Chu delegated the treatment to a nurse or performs it herself. The nurse's compensation is listed by Dr. Lee at $17-$22 per hour, yet the IMS treatment charge (in 2001) was $ Dr. Lee includes additional overhead items as part of her justification for the charge. Pursuant to N.J.A.C. 11:3-29.4(e), I find that IMS treatments are a service not set forth on the fee schedule. A trigger point injection is not a similar service in that it is a non-delegable procedure performed by a physician. The IMS treatment requires direct one-on-one care by an LPN lasting between 45 minutes and an hour. CPT code covers therapeutic activities with direct PT contact and is capped by the fee schedule at $45.95 for each 15 minutes. Respondent in this case did not argue that the IMS treatment should be treated as a modality subject to the $90 per day cap. However, because it was a delegated procedure, unlike acupuncture, trigger point injections or osteopathic manipulations, I find that comparison to delegable rather than non-delegable procedures on the fee schedule is appropriate. That being said, given that CPT is capped at $45.95 for 15 minutes. One hour of supervised therapeutic activities with direct contact would be paid after application of the multiple modality reduction at approximately $ Sixty minutes of physician time in a new patient office visit billed under CPT code would be reimbursed at $ and under CPT code would be reimbursed at $ I find that a reasonable rate for reimbursement of IMS treatment based on the evidence presented is $ Claimant, in its calculations applies the multiple procedure reduction formula (Exhibit A) with the IMS treatment being the first procedure performed, reimbursed at 100% of the UCR. (I note that the rate billed by Dr. Lee for IMS does not depend on the number of muscle groups treated.) Therefore, I award $3, for IMS treatments. I reject respondent's argument that claimant failed to request pre-certification as claimant submitted its request per 10 page fax dated 4/4/01. Once pre-certification was denied, there was no further obligation on the part of the provider to request pre-certification. I find that respondent has not shown sufficient support for its allegation that simple massage, not myofascial release, was performed on the insured. I also find that aquamed therapy was properly coded. However, I find that as of the 5/25/01 date of service, the $90.00 per day cap applies as the maximum amount reimbursed for CPT codes and I also do not award electric stimulator supplies billed under A4556 for $20.00 as there is insufficient support for this figure: in Dr. Lee's "Informative information" she notes that 2-3 disposable monopolar needles are used in 80% of patients at a cost of $3.50 per needle. Therefore, I award an additional $3, for physical therapy modalities ($90 x 35 plus $ plus $14.39). Finally, there was no response to claimant's assertion of additional amounts due and owing for EMG testing. Therefore, I award an additional $ The total amount awarded to claimant is $7, Interest in the amount of $ is awarded.

7 CASE NO. 18 Z I have reviewed claimant's attorney fee certification, and considered respondent's comments. I find that attorney fees of $2, are consonant with the award and with RPC 1.5. The filing fee of $ and certified mail service fee of $8.00 are awarded as costs. 5. MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Cherry Hill Pain and Rehabilitation $20, $7, Provider Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below. 6. INCOME CONTINUATION BENEFITS: Not In Issue 7. ESSENTIAL SERVICES BENEFITS: Not In Issue 8. DEATH BENEFITS: Not In Issue 9. FUNERAL EXPENSE BENEFITS: Not In Issue 10. I find that the CLAIMANT did prevail, and I award the following COSTS/ATTORNEYS FEES under N.J.S.A. 39:6A-5.2 and INTEREST under N.J.S.A. 39:6A-5h. (A) Other COSTS as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $ ($ plus $8.00) (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $2, (C) INTEREST is as follows: Awarded in the amount of $ This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. 9/7/03 Date Kate Rabassa Wallen, Esq.