Award of Dispute Resolution Professional

Transcription

1 In the Matter of the Arbitration between Surgery Anesthesia Associates, PC, Precision Pain Management & Pain & Surgery Ambulatory Center A/S/O A. M. CLAIMANT(s), Forthright File No: NJ Insurance Claim File No: Claimant Counsel: Law Offices of Fano & Krug, P.C. v. Claimant Attorney File No: Respondent Counsel: Law Office of Cindy L. Thompson Respondent Attorney File No: 10P2034 (BM) Accident Date: 07/30/2009 GEICO Insurance Company RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Matthew G. Miller 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: AM An oral hearing was waived by the parties. An oral hearing was conducted on: 03/21/2012 Hearing Information Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: The claim of subrogee, Surgery Anesthesia Associates, P.C. was amended to $328.60, the claim of subrogee, Precision Pain Management was amended to $2, and the claim of subrogee, Pain & Surgery Ambulatory Surgery Center was amended to $7, Further, subrogee Precision Pain Page 1 of 11

2 Management waives its claim for CPT# and stipulates to the applicability of the assessed N.J.A.C. 11:3-4.4(e) pre-certification penalties. Finally, it was stipulated that CPT# is an ASC Group 1 North procedure with a fee-schedule value of $1, NJ Page 2 of 11

3 Findings of Fact and Conclusions of Law This arbitration arise out of a motor vehicle accident that occurred on July 30, 2009 and concern a total of $10, in un/underpaid benefits allegedly due and owing to Precision Pain Management ( PPM /Kristappa Sangavaram, M.D.)($2,658.59) for the performance of rather complicated injection set that was performed at Pain & Surgery Ambulatory Center ( PSAC )($7,070.20) with Surgery Anesthesia Associates ( SAA )($328.60) provided the anesthesia. The claims of both PSAC & SAA are entirely derivative of Dr. Sangavaram s claim. The respondent, GEICO Insurance Company ( GEICO ), first claims that it made payments totaling $1, to PPM for the injection set and has provided proof in the form of an EOB regarding same. The specifics of the subrogees claims are as follows: PPM PSAC SAA CPT Billed Paid Amt. Cld $1, $1, $ $ $ $ LT $ $ 0.00 $ LT $ $ 0.00 $ $ $ $ $ $ 0.00 $ $ $ $ Total $4, $1, $2, CPT Billed Paid Amt. Cld $1, $0.00 $1, TC $ $0.00 $ $1, $0.00 $1, TC $ $0.00 $ $1, $0.00 $1, TC $ $0.00 $ $1, $0.00 $1, TC $ $0.00 $ Total $6, $0.00 $6, CPT Billed Paid Amt. Cld x 5 $ $0.00 $ As noted, GEICO remitted payment to PPM for the performance of the lumbar epidural steroid injection ( LESI ) and does not deny that it owes at lease some compensation to PSAC and SAA for same. 1 For some of the services performed, PSAC claimed the fee-schedule amounts as the amount due and owing rather than the amount it actually billed. However, per N.J.A.C. 11:3-29.4(a), the fee-schedule is a maximum valuation, since (n)othing in this subchapter shall, however, compel the PIP insurer to pay more for any service or equipment than the usual, customary and reasonable fee, even if such fee is well below the automobile insurer s limit of liability as set forth in the fee schedules. NJ Page 3 of 11

4 However, per peer reviews performed by Richard A. Domsky, M.D. and Jon Glass, M.D., GEICO denied payment for the other services, arguing that same were simply not medically necessary. GEICO also argued that if the CPT# s.i. joint injection is found to be compensable, then the multiple procedure reduction formulas of N.J.A.C. 11:3-29.4(f)(1) and N.J.A.C. 11:3-29.4(q) should apply to same, reducing the valuation of same by 50%. It also argued that its application of the MMR to the CPT# major joint injection was appropriate. Next, GEICO argued that it properly assessed an N.J.A.C. 11:3-4.4(e) 50% pre-certification co-payment penalty to the CPT# psoas compartment block. 2 Finally, GEICO argued that the separate billing of the various radiological procedures by PSAC (only) violated N.J.A.C. 11:3-29.4(g) s prohibition on unbundling and should not be compensable. On the other hand, the subrogees argue that all of the treatment in question was reasonable, necessary and causally related to the accident and was properly coded and billed. It was noted that there was no question the reviewing doctors had approved the LESI and that there was no excuse for PSAC and SAA not to have received at least some compensation for same. The details of the subrogees' arguments will be analyzed below. Subrogor s Medicals I have been provided with rather limited medicals, but it appears that following the accident, the subrogor was seen by a chiropractor (Charles J. Santoro, D.C.?) and on September 10, 2009, she underwent MRIs of the cervical and lumbosacral spines which were interpreted as revealing disc bulges at C5-6-7 as well as at L3-4-5 and a disc herniation at L5-S1. AM was seen by Dr. Sangavaram on January 26, 2010 with complaints of headache and diffuse spinal pain with radiation into the buttocks and lower extremity. She had previously undergone injection therapy (unspecified) without sedation and was terrified to undergo same again. 3 CMT had helped to a degree, but after the last epidural injection block when the patient could no move the chiropractor provided the necessary medical attention improving the patient s discomfort so that at least she could walk and do minor activities in life. She had undergone an EMG/NCV, but the doctor did not know the results. An exam revealed complaints of primarily right-sided headaches with nausea and severe photophobia, phonophobia and dizziness. There were multiple trigger points in the temporalis muscles and severe tenderness in the supraorbital notches. Dr. Sangavaram felt that he was suffering from bilateral posterior, occipital neuralgia, supraorbital, supratrochlear neuralgia, myofascial trigger points of the neck and upper back muscles that are causing severe headaches. AM was complaining of a constant burning sensation which worsens with activity starting in the entire neck radiating on the right side and web of the neck up to the shoulder girdle (r>l). There was also pain in the interspinous ligament starting from the C4 all the way up to the T10. There was pain throughout the neck and shoulders and in the right shoulder girdle with severe tenderness in the right AC joint. She also had pins and needles with numbness in the entire hand extending up to the forearm with pain in the right elbow and wrist with an extensor tendon problem. 2 As noted, the subrogees have conceded that this penalty was appropriately assessed.. 3 Apparently an LESI with Roman Kosiborod, M.D. NJ Page 4 of 11

5 She also had pain in the entire low back which radiated into the buttocks and sides of the hips and groin (r>l). There was no spasm, but she gets pins and needles with numbness of the right side. The pain also radiates on the lateral surfaces of the legs (r>l) with stabbing in the buttocks. There were subjective radicular complaints, but no real objective evidence of radiculopathy. Range of motion ( ROM ) was restricted throughout the spine and there was lumbar facet joint tenderness as well as s.i. tenderness at the joint and sulcus on both sides (r>l). There were also pelvic restrictions, but no direct hip pain, but there was pain in the joints. She was diagnosed with cervical disc disease with radiculopathy, cervical facet arthropathy, myofascial trigger points, right lateral epicondylitis and extensor compartment syndromes along with lumbar disc disease, facet arthropathy, s.i. joint arthropathy and psoas compartment syndrome. It was recommended that she undergo a caudal epidural injection to treat the radiculopathy, bilateral psoas compartment syndrome and a bilateral s.i. joint arthrogram and injection block. He also recommended a number of cervical procedures, including a CESI, AC joint arthrogram and trigger point injections as well as a number of other possibilities depending on her progress. The procedure was performed on February 5, 2010 and consisted of; Fluoroscopy, caudal epidurogram, caudal epidural injection block, bilateral psoas compartment myogram, bilateral psoas compartment injection block, left sacroiliac joint arthrogram, left sacroiliac joint injection block, left trochanteric of the hip injection block. This was performed to treat, lumbar disc disease with radiculopathy, lumbar facet arthropathy, left sacroiliac joint arthropathy, left trochanteric bursitis of the hip. The psoas compartment myograms showed extensive spasm, the right one more severe than the left one. No other abnormalities are noted except for the spasm. The left s.i. arthrogram was unremarkable... I have not been provided with any additional medicals by either party. The case was first reviewed by Dr. Domsky on February 1, 2010, who noted the prior LESI as well as Dr. Sangavaram s exam. He approved, per ASIPP guidelines after which AM should be re-examined. However, he felt that it was contraindicated to perform an SI injection at the same time as the LESI and saw no need for the psoas compartment block, which he felt was not soc. 4 PPM appealed the partial denial and same was reviewed by Dr. Glass on 3/30/10. He reviewed Dr. Dom sky s report, the MRI report and Dr. Sangavaram s office note. He upheld the prior determination, finding the LESI to be medically necessary, but (w)ith regard to the other injections, there are also local injections to the region around the lumbar spine. There is no indication for more than 1 treatments (sic) 1 area at the same time. Therefore, the requested sacroiliac and psoas injections are not medically necessary. Medical Necessity The burden of proof on the issue of whether treatment is reasonable, necessary and causally related to the accident and well as billed/coded appropriately, is the claimant s to show by a preponderance of the 4 I would gather standard of care. NJ Page 5 of 11

6 credible evidence. Miltner v. Safeco Ins. Co., 175 N.J. Super. 156 (Law Div. 1980). See also Langley v. Allstate Ins. Co., 206 N.J. Super. 365 (App. Div. 1985). When there is a difference of medical opinion, generally, the treating provider is afforded greater weight. Mewes v. Union Bldg. & Const. Co., 45 N.J. Super. 88 (App. Div. 1957), Abelit v. Gen. Motors Corp., 46 N.J. Super. 475 (App. Div. 1957) and Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491 (1991). The necessity of medical treatment is a matter to be decided, the first instance, by the claimant s treating physician, and objectively reasonable belief in the utility of a treatment or diagnostic method based upon the credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics, supra, 125 N.J. at 512. Medically necessary is defined as treatment or a diagnostic test that is consistent with the clinically supported symptoms, diagnosis or indications of the injured person. In addition, that treatment is the most appropriate level of service that is in accordance with the standards of good practice and standard professional treatment protocols including the Care Paths and is not primarily for the convenience of the injured person or provider. N.J.A.C. 11: The term clinically supported is defined in N.J.A.C. 11:3-4.2 and essentially means that there must be sufficient medical evidence and analysis to justify the performance of the requested treatment. This includes a physical examination, a review of both subjective complaints and objective findings, prior tests and a record of these observations and conclusions. In addition, the treatment must be palliative or curative of a condition, not simply something that was provided for the patient s personal comfort. See Perun v. Utica Mut. Ins. Co., 280 N.J. Super. 280 (Law Div. 1994). See also Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990); Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984); N.J.A.C. 11: In reviewing the evidence supplied by the parties, I am not enthralled with the arguments of any of the medical experts. However, I am less impressed with the because I say so type of arguments proffered by Drs. Domsky & Glass. While I note the reference to the standard of care, which is included in the definition of medical necessity, other than a brief reference to the ASIPP guidelines that supports the performance of the LESI, neither of the reviewing doctors proffers any outside support for their positions, or for that matter, any real detail. On the other hand, Dr. Sangavaram does go into some detail into explaining the reasoning for the injections; The patient is showing MULTIPLE PAIN GENERATORS in the neck, upper back, upper extremity, lower back, buttock and lower extremity which are causing SEVERE DISABILITY, DYSFUNCTION, IMPAIRMENT, and POOR QUALITY OF LIFE AND PRODUCTIVITY. I find that Dr. Sangavaram s explanations for the performance of the multiple injections, at least in this case, is simply more impressive than the near net opinion positions of Drs. Domsky & Glass. Dr. Sangavaram, in examining the patient, found multiple pain generators, while neither of the reviewing doctors provides any real analysis of the subrogor s condition. NJ Page 6 of 11

7 Without performing any type of detailed review of the 1/26/10 note (rather than the facile reviews which were performed), I find that the peer reviews to be unpersuasive and that the subrogees, by and through Dr. Sangavaram, have proven by a preponderance of the credible evidence that all of the procedures performed on 2/5/10 were reasonable, necessary and causally related to the accident. Application of N.J.A.C. 11:3-29.4(f)(1) Turning attention to the issue of billing and coding, the respondent argued that the multiple procedure reduction formulas of N.J.A.C. 11:3-29.4(f)(1) and N.J.A.C. 11:3-29.4(q) should be applied to the 2nd and 3rd levels of the discogram as well as the CPT# radiographical interpretations. This code section reads; (f) The following shall apply to multiple and bilateral surgeries (CPT through 69999), co-surgeries and assistant surgeons; (1) When multiple or bilateral procedures are performed on the same patient by the same provider at the same time or during the same visit, it is virtually never appropriate for the fee to be the sum of the fees for each procedure. The primary procedure at a single session shall be paid at 100 percent of the eligible charge, the second procedure at no more than 50 percent of the upper limit in the fee schedule for that particular procedure, and if performed, any additional procedures at no more than 25 percent of the upper limits of the fee schedule for those procedures. N.J.A.C. 11:3-29.4(f)(1) (q) 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. For example, if two Group 2 procedures and a Group 1 procedure are all performed in the same operative session, reimbursement of the ASC facility fee is 100 percent of the first Group 2 fee plus 50 percent of the second Group 2 fee, plus 50 percent of the Group 1 fee. N.J.A.C. 11:3-29.4(q) While PPM and PSAC argued that these provisions should not apply to either CPT# or CPT# 20610, neither could provide any authority that would contradict the plain language of either section. The exceptions of N.J.A.C. 11:3-29.4(f)(2)(3) (which cover PPM) do not apply in that neither CPT# nor CPT# is an each additional or modifier -51 exempt code. Given the above, I find that the MMR indeed applies to both codes and that PPM & PSAC have failed to prove that it is entitled to any more than 50% of the billed amount of applicable fee-schedule valuation. NJ Page 7 of 11

8 Unbundling of CPT#s 72275, 73542, & as to PSAC GEICO argued that, per the NCCI edits, PSAC was not entitled to compensation for the CPT# fluoroscopy, the CPT# epidurogram, the CPT# s.i. joint arthrography or the CPT# psoas compartment myogram that was performed in conjunction with the discogram. Effective 8/10/09, the Administrative Code was amended to read as follows; N.J.A.C. 11:3-29.4(g) Artificially separating or partitioning what is inherently one total procedure unto subparts that are integral to the whole for the purpose of increasing medical fees is prohibited. Such practice is commonly referred to as unbundling or fragmented billing. Providers and payors shall use the National Correct Coding Initiative Edits, incorporated by reference as updated quarterly by CMS and available at Further, the July, 2010 Auto Medical Fee Schedule Frequently Asked Questions includes the following question and answer; Q. The Fee Schedule rule at N.J.A.C. 11:3-29.4(o)4 5 states that diagnostic and therapeutic items are included in the ASC facility fee. Does this mean that all diagnostic tests (CPT codes 7000 through 89999) are included in the facility fee? In particular, is CPT 77003, Fluoroscopic guidance, included in the facility fee? A. The Department follows relevant provisions of the Medicare payment system. Since the adoption of the amendments to the Fee Schedule, Medicare has updated its ASC payment system. It publishes a list of ASC Covered Ancillary Services Integral to Covered Surgical Procedures. The entire list, which can be downloaded from CMS, includes 15 CPT codes that are on the Department s Physicians Fee Schedule. These codes (listed below) from Addendum BB have indicator N1 Packaged service/item; no separate payment made Contrast x-ray, thorax spine Contrast x-ray, lower spine Epidurography X-ray c/t spine disk X-ray of lower spine disk 5 Also effective 8/10/09. NJ Page 8 of 11

9 73040 Contrast x-ray of shoulder Contrast x-ray of hip X-ray exam, sacroiliac joint Contrast x-ray of ankle Fluoroscope examination d render w/o postprocess d rendering w/postprocess Echo guide for biopsy Needle localization by xray Fluoroguide for spine inject Therefore, in addition to the plain language of the rule text stating that diagnostic items are included in the facility fee, the current Medicare rules clearly prohibit separate payment for the CPT codes listed above. In response to the above, PSAC was unable to proffer any argument in support of the payment of any of the diagnostic procedures. While CPT# does not appear on the list, since it is an unlisted radiographical code, it would not appear of the fee-schedule, there is simply no way to differentiate this procedure from the other three (3) procedures. In light of the evidence supplied by the respondent and the lack of evidence supplied by the claimant, I have no real alternative but to determine that PSAC has failed to prove by a preponderance of the credible evidence that these services are compensable. Costs and Fees An award of attorney s fees to a successful claimant is not mandatory, but, per N.J.A.C. 11:3-5.6(d)(3), lies within the discretion of the DRP. In determining an appropriate amount of fees, it has been suggested that the most useful starting point is the number of hours reasonably expended on the litigation multiplied by reasonable hourly rate. H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. Super. 144 (Law. Div. 1996). However, per R.P.C. 1.5, the DRP is given discretion to adjust the fees upward or downward in his discretion. Id. at 158, 160. In making those adjustments, the trial court (or DRP) should consider the following: 1. The insurer s good faith in refusing to pay the demand; 2. [The] excessiveness of plaintiff s demand; 3. [The] bona fides of one or both of the parties; 4. The insurer s justification in litigating the issues; NJ Page 9 of 11

10 5. The insured s conduct in contributing substantially to the necessity [of litigation]; 6. The general conduct of the parties; and 7. The totality of the circumstances. See Scullion vs. State Farm Ins. Co., 345 N.J. Super. 431 (App. Div. 2001), quoting Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987). The claimant has submitted a certification of services in the amount of $2, in fees and an additional $ in costs. Having considered the respondent s objections and all relevant circumstances, I find that counsel is entitled to fees totaling $1, This figure comports with the guidance provided by H.I.P., R.P.C. 1.5, Scullion and Enright and fully and fairly compensates counsel. The $ in costs is also awarded. Therefore, the DRP ORDERS: That payment be made to the subrogees by GEICO as follows; PPM PSAC SAA CPT Billed Paid Amt. Due $1, $1, $ $ $ $ LT $ $ 0.00 $ $ $ 0.00 $ $ $ $ $ $ 0.00 $ $ $ $ 0.00 Total $2, $1, $ CPT Billed Paid Amt. Due $1, $0.00 $1, TC $ $0.00 $ $ $0.00 $ TC $ $0.00 $ $ $0.00 $ TC $ $0.00 $ $ $0.00 $ TC $ $0.00 $ 0.00 Total $4, $0.00 $2, CPT Billed Paid Amt. Cld x 5 $ $0.00 $ Disposition of Claims Submitted NJ Page 10 of 11

11 1. Medical Expense Benefits: Awarded: Medical Provider Amount Claimed Amount Awarded Payable To Surgery Anesthesia Associates, PC Precision Pain Management Pain & Surgery Ambulatory Center $ $ Surgery Anesthesia Associates, PC $2, $ Precision Pain Management $7, $2, Pain & Surgery Ambulatory Center The amount awarded takes into account that application of the North physicians and ASC feeschedules, the application of the N.J.A.C. 11:3-29.4(f)(1) multiple procedure reduction formula and the assessment of the N.J.A.C. 11:3-4.4(e) 50% co-payment penalty to CPT# and is subject only to any remaining deductible or N.J.S.A. 39:6A-4.3(f) co-payment. It is not subject to any other reductions. 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 is awarded pursuant to N.J.S.A. 39:6A-5h.: to be calculated by the respondent. 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: 05/07/12 NJ Page 11 of 11