American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Huntington Regional Chiropractic PC (Applicant) - and - State Farm Mutual Automobile Insurance Company (Respondent) AAA Case No. 17-16-1029-6695 Applicant's File No. 1808125 Insurer's Claim File No. 327D29880 NAIC No. 25178 1. ARBITRATION AWARD I, Meryem Toksoy, the undersigned arbitrator, designated by the American Arbitration Association pursuant to the Rules for New York State No-Fault Arbitration, adopted pursuant to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and having heard the proofs and allegations of the parties make the following AWARD: Injured Person(s) hereinafter referred to as: Assignor (BH) Hearing(s) held on 02/21/2017 Declared closed by the arbitrator on 02/21/2017 Helen Mann Ruzhy, Esq. from Israel, Israel & Purdy, LLP participated in person for the Applicant Matthew Kelly, Esq. from Richard T. Lau & Associates participated in person for the Respondent 2. The amount claimed in the Arbitration Request, $ 530.07, was AMENDED and permitted by the arbitrator at the oral hearing. After this case was filed in arbitration, Respondent issued payment on the balance remaining for services rendered from 10-27-15 to 11-12-15, to wit: $95.77 (including interest). Consequently, Applicant's counsel adjusted the amount in dispute to $434.30. Stipulations WERE NOT made by the parties regarding the issues to be determined. 3. Summary of Issues in Dispute Page 1/12
In dispute are claims by Applicant, Huntington Regional Chiropractic, PC, MD, PLLC, as the assignee of a 34-year-old female who was injured as a driver in a motor vehicle accident on 09-02-15. Applicant seeks to be reimbursed $434.30 for services that were provided from 09-04-15 to 12-02-15. Where applicable, I must decide: Whether Respondent's fee schedule defense validates its decision to reduce/deny Applicant's reimbursement; The issue of non-receipt; and Whether Applicant is entitled to attorney fees for a portion of the claim which was paid after the case was filed in arbitration. 4. Findings, Conclusions, and Basis Therefor The case was decided on the submissions of the parties as contained in the electronic file maintained by the American Arbitration Association, the oral arguments of the parties' representatives, as well as the New York State Workers' Compensation Fee Schedule, of which I take judicial notice. Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 871 N.Y.S.2d 680 (App Div, 2 nd Dept, 2009). There were no witnesses. DECISION FOR DEFENSE/ISSUE TOTAL RESULT CHIROPRACTIC MANIPULATION & MANUAL THERAPY TECHNIQUES FEE SCHEDULE $208.08 GRANTED DOS BILLED PAID BALANCE 09-04-15 09-09-15 Page 2/12
09-10-15 09-11-15 09-14-15 09-16-15 09-21-15 10-01-15 10-12-15 10-13-15 10-14-15 10-22-15 11-18-15 11-19-15 11-23-15 11-25-15 12-02-15 12-04-15 TOTAL: $832.32 $624.24 $208.08 For each of these listed dates of service, Applicant billed under CPT code 98941 (chiropractic manipulation) and CPT code 97140 (manual therapy therapy techniques). The total amount charged for each date of service was limited to in order to account for Ground Rule 3 of the Physical Medicine section of the Chiropractic Fee Schedule (otherwise known as the 8-Unit Rule). The record reflects that Respondent paid for the chiropractic manipulation (billed under code 98941 for ) but denied the charges for the manual therapy techniques (billed under code 97140 at an adjusted rate of ). The Explanation of Benefits accompanying the denials sets forth the following reason: Page 3/12
Per AMA guidelines the use of 97140 in conjunction with CMT/OMT codes requires an appropriate modifier to indicate a distinct procedural service was performed. If CMT/OMT and the services described by 97140 were provided to the same region, it is not appropriate to separately report code 97140. To support this assertion, Respondent looks to the affidavit of Certified Professional Coder (CPC), Mercy Acuna. Within her affidavit, Ms. Acuna refers to an article published in the January 2005 edition of CPT Assistant. On page 47 of this source, it states: Coding Consultation: Questions and Answers Medicine, 97140, 98940, 98941, 98942, 98943 (Q&A) Question Would it be appropriate to report CPT code 97140, Manual therapy techniques (eg, mobilization/manipulation, manual lymphatic drainage, manual traction), one or more regions, each 15 minutes, separately when chiropractic manipulation techniques (CMT)..CPT codes 98940-98943..are provided at the same session? AMA Comment From a CPT coding perspective, CPT code 97140 is not intended to include CMT. The appropriate CMT procedure code(s) should be reported for those manipulation techniques. Since it is possible that manual therapy techniques(s) may be required in addition to CMT procedure(s), it is appropriate to additionally report the manual therapy technique(s)(based on 15-minute intervals of service). For example, manual traction is performed to treat a cervical spine injury and on the same day the chiropractor also performs chiropractic manipulation to the lumbar region. Therefore, code 97140 with modifier 59 and code 98940 should be reported. Ms. Acuna then sets forth her analysis of Applicant's claim. She writes: The treatment notes indicate that the spinal manipulation, myofascial release and manual traction were all performed on the same body areas/regions (cervical, thoracic and lumbar) therefore the 59 modifier would not be appropriate. Based on the documentation submitted, CPT code 97140 is not separately reimbursable. Page 4/12
In opposition, Applicant relies upon the affidavit of Mary Beth Perdikos, an employee with Israel, Israel & Purdy who states, in part, that she has been trained in, and has worked with, the New York State Workers' Compensation Fee Schedule as an examiner and medical biller for 17 years. In her affidavit, Ms. Perdikos explains that Applicant billed for its services according to the information and applicable ground rules set forth in the Chiropractic Fee Schedule. Ms. Perdikos goes on to note that Ms. Acuna's analysis depends upon CPT Assistant, and she points out that there is nothing in the Chiropractic Fee Schedule, itself, which imposes the limitation articulated in CPT Assistant. On this particular issue, I find Applicant's position to be more persuasive. There is no statute or regulatory provision that mandates the use of CPT Assistant in determining the reimbursement rate for fees relating to services covered under No-Fault. In this case, the evidence shows that Applicant billed for its services by using the information contained in the Chiropractic Fee Schedule. It reflects that the correct formula was applied for calculating the reimbursement rate for each code (i.e., multiplying the assigned Relative Value Unit by the applicable Conversion Factor). The record also reveals that Applicant reduced the total amount billed for each date of service to in order to account for the limitation articulated in Ground Rule 3 (i.e., the 8-Unit Rule). Applicant did what was required to be done; and I am not inclined to impose upon Applicant an additional limitation which is referenced in CPT Assistant but is nowhere to be found in the fee schedule itself. In view of the foregoing, Applicant is awarded $208.08. DECISION FOR DEFENSE/ISSUE TOTAL RESULT EVALUATION (ON 09-22-15), CHIROPRACTIC MANIPULATION & MANUAL THERAPY TECHNIQUES NON-RECEIPT $199.81 GRANTED Applicant's argument: Page 5/12
Applicant maintains that a bill in the amount of $292.29, was submitted to the Respondent for six dates of service covering the period from 09-14-15 to 09-30-15. Applicant asserts that Respondent did not process the charges for four of the six dates, namely 09-22-15, 09-23-15, 09-24-15, and 09-30-15. It should be noted that the bill is formatted in such a way that the charges are printed across two separate pages, as follows: Date of Service Description Code Billed 1st page 09-14-15 09-14-15 Chiropractic Manipulation Manual Therapy Technique 98941 97140 09-16-15 Chiropractic Manipulation 98941 09-16-15 Manual Therapy Technique 97140 09-22-15 Re-Evaluation 99212 $26.41 2 nd page 09-22-15 Chiropractic Manipulation 98941 09-23-15 Chiropractic Manipulation 98941 09-23-15 Manual Therapy Technique 97140 09-24-15 Chiropractic Manipulation 98941 09-24-15 Manual Therapy Technique 97140 09-30-15 Chiropractic Manipulation 98941 09-30-15 Manual Therapy Technique 97140 [The bill, as well as its corresponding cover letter, and medical reports can be found on pages 29 through 38 of Applicant's main submission]. Respondent's argument: Respondent raises the issue of non-receipt and contends that Applicant's submission only included the page which lists the charges for 09-14-15 and 09-16-15. Page 6/12
Upon review of the evidence, I find in favor of the Applicant. My determination takes into account the following: Each bill in this action was sent with a cover letter and was accompanied by medical reports. Respondent does not dispute that each bill was received in conjunction with a cover letter and medical reports. Each cover letter accurately memorializes the service date range of the underlying bill and the total amount listed on the bill. Each date of service is accounted for in the medical records. In every instance where Applicant submitted a claim containing two or more service dates, the charges were listed on two separate pages. With the exception of the four service dates listed here, Respondent processed all of the other charges appearing on all of the other bills. The foregoing leads me to conclude that: Applicant is consistent and accurate with its submissions; Respondent is familiar with Applicant's format; Respondent is aware that the format consists of documents which cross-reference each other; Respondent can readily determine whether anything is missing and whether a request for additional verification should be issued; Respondent knows to expect that an individual claim form may list fees on more than one sheet of paper. Furthermore, with regard to the instant claim: The cover letter for this bill clearly states that the claim is for $292.29 and that it pertains to services rendered from 09-14-15 to 09-30-15. The medical reports identify each of the six dates of service. The 1 st page which was received by the Respondent - i.e., the sheet that itemizes the charges for 09-14-15 and 09-15-15 - lists the total for all six dates of service ($292.29). See page 20 of Respondent's main submission. Page 7/12
From a general and specific standpoint, the evidence persuades me to find that the bill was sent and received in its complete form and that Respondent failed to process all of the charges. Based on this conclusion, Applicant is entitled to be reimbursed for those services rendered from 09-22-15 to 09-30-15. For the record, I note that even if I were to assume, as true, that the 2 nd page was not received, I would still find in Applicant's favor. This is because Respondent was given enough information to determine whether anything was missing and whether a request for additional verification needed to be issued. Respondent elected to do nothing. Given the record, denying Applicant's claim would mean rewarding the Respondent for its inaction. In light of the foregoing, Applicant is awarded $199.81 DECISION FOR DEFENSE/ISSUE TOTAL RESULT EVALUATION (ON 09-22-15), CHIROPRACTIC MANIPULATION & MANUAL THERAPY TECHNIQUES ATTORNEY FEES N/A GRANTED DOS BILLED PAID BALANCE 10-27-15 $61.09 $26.41 10-30-15 10-31-15 11-04-15 11-06-15 11-11-15 11-12-15 TOTAL: $338.53 $242.76 $95.77 Respondent received the bills for the listed dates of service on 12-14-15. For each date, reimbursement was allowed in the amount of. Denials were issued on 12-18-15 for the remaining balance. Page 8/12
Applicant commenced the instant action on 03-01-16. After the matter was filed in arbitration, Respondent elected to pay the remaining balance (with interest). The check was issued on 03-22-16. See Applicant's supplemental submission. Given this fact pattern, the request for attorney fees is granted. DECISION FOR DEFENSE/ISSUE TOTAL RESULT EVALUATION ON 12-01-15 [NO ISSUE; RESPONDENT CONCEDES] $26.41 GRANTED Applicant is awarded $26.41 for the re-evaluation that was performed on 12-01-15 and billed under CPT code 99212. 5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, 2002. I do NOT impose the administrative costs of arbitration to the applicant, in the amount established for the current calendar year by the Designated Organization. 6. I find as follows with regard to the policy issues before me: The policy was not in force on the date of the 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 the MVAIC) The applicant's injuries didn't arise out of the "use or operation" of a motor vehicle The respondent is not subject to the jurisdiction of the New York No-Fault arbitration forum Accordingly, the applicant is AWARDED the following: A. Medical From/To Amount Status Huntington Regional Chiropractic PC 09/03/15-12/04/15 Awarded: $530.07 $434.30 Page 9/12
Total $530.07 Awarded: $434.30 B. The insurer shall also compute and pay the applicant interest as set forth below. (The filing date for this case was 03/01/2016, which is a relevant date only to the extent set forth below.) Applicant is awarded interest pursuant to the No-Fault regulations. See generally, 11 NYCRR 65-3.9. Interest shall be calculated "at a rate of two percent per month, calculated on a pro rata basis using a 30-day month." 11 NYCRR 65-3.9(a). A claim becomes overdue when it is not paid within 30 days after a proper demand is made for its payment. "If an applicant does not request arbitration or institute a lawsuit within 30 days after receipt of a denial of claim form or payment of benefits calculated pursuant to Department of Financial Services regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken." 11 NYCRR 65-3.9(c). The Superintendent and the New York Court of Appeals has interpreted this provision to apply regardless of whether the particular denial at issue was timely. LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 12 N.Y.3d 217 (2009). Interest is to be calculated from the date this case was filed in arbitration: 03-01-16. C. Attorney's Fees The insurer shall also pay the applicant for attorney's fees as set forth below As the claim was filed subsequent to the Sixth Amendment to 11 NYCRR 65-4 (Insurance Regulation 68-D) which took effect on February 4, 2015, Attorney's Fees shall be calculated pursuant to the amended terms, as follows: 20 percent of the amount of first-party benefits, plus interest thereon, subject to a maximum fee of $1,360. [11 NYCRR 65-4.6(d)]. There is no minimum fee. D. The respondent shall also pay the applicant forty dollars ($40) to reimburse the applicant for the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award. This award is in full settlement of all no-fault benefit claims submitted to this arbitrator. Page 10/12
State of New York SS : County of Nassau I, Meryem Toksoy, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 03/26/2017 (Dated) Meryem Toksoy IMPORTANT NOTICE This award is payable within 30 calendar days of the 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 65-4.10) contains time limits and grounds upon which this award may be appealed to a master arbitrator. An appeal to a master arbitrator must be made within 21 days after the mailing of this award. All insurers have copies of the regulation. Applicants may obtain a copy from the Insurance Department. Page 11/12
ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 5e0be3ed79f6bfff34a1f9f558ebf48c Electronically Signed Your name: Meryem Toksoy Signed on: 03/26/2017 Page 12/12