In the Matter of the Arbitration between BACK PAIN, P.C. A/S/O JC CLAIMANT(s), Forthright File No: NJ1104001382836 Proceeding Type: In Person Insurance Claim File No: 1013647 Claimant Counsel: The Law Office of Jeffrey Randolph, LLC v. Claimant Attorney File No: BCPLI-08 Respondent Counsel: Gutterman, Markowitz & Klinger, L.L.P. Respondent Attorney File No: Accident Date: 07/24/2010 NJ PLIGA RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: Joseph J. Riva, 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: Patient A proceeding was conducted on: 04/05/13 In Person Proceeding Information 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: The amount of the reimbursement claim is $3,261.24. NJ1104001382836 Page 1 of 7
Findings of Fact and Conclusions of Law This arbitration arises out of an automobile accident that occurred on 07/24/10. On that date, J C (patient) was an insured of NJ PLIGA (respondent) and eligible to receive personal injury protection (PIP) benefits when he suffered injuries because of the accident. Patient received medical care at Back Pain, P.C. (claimant). Claimant took an assignment of patient s claim for PIP benefits. After a dispute arose regarding those benefits, claimant commenced this proceeding, seeking reimbursement from respondent of $3,579.62 with interest for unpaid medical expense benefits together with counsel fees and costs. The reimbursement claim is laid out in the post-hearing Arbitration Summary submitted by claimant. The issues identified by the parties, confirmed by counsel at the arbitration hearing held on 04/05/13, and presented for my consideration are: (1) whether claimant improperly billed for the services it provided to patient and (2) whether the services on 02/02/11 were medically necessary. The parties did not present any other issues. They agreed that only the issues presented would be decided. For that reason, I have not considered nor decided any other issues. The parties submitted a number of documents in support of their respective positions for my review, including: Claimant s Demand for Arbitration with attached Exhibits A and B, Claimant s 03/18/13 submission with attached Exhibits A through D, Respondent s Statement of Response, Claimant s 04/19/13 post-hearing submission, Respondent s 05/17/12 submission with attached Exhibits A and B, and Respondent s 06/05/12 submission with attached Exhibit A. I have carefully reviewed all of the parties submissions and considered the arguments of counsel advanced at the hearing. Issues previously raised but not identified at the hearing are deemed abandoned. NCCI edits By way of background, the Centers for Medicare & Medicaid Services (CMS) developed the National Correct Coding Initiative (NCCI) to promote national correct coding methodologies and to control improper coding leading to inappropriate payment in Part B claims. The coding policies were developed based on coding conventions defined in the American Medical Association s CPT manual, national and local policies and edits, coding guidelines developed by national societies, analysis of standard medical and surgical practices, and a review of current coding practices. The National Correct Coding Initiative Coding Policy Manual for Medicare Services is regularly updated by CMS. The purpose of the NCCI edits is to prevent improper payment when incorrect code combinations are reported. The NCCI contains two tables of edits. The Column One/Column Two Correct Coding Edits NJ1104001382836 Page 2 of 7
table and the Mutually Exclusive Edits table include code pairs that should not be reported together for a number of reasons explained in the Coding Policy Manual. The edits are applied to services billed by the same physician for the same patient for the same date of service. The same premise is followed under N.J.A.C. 11:3-29.4(g), which, in pertinent part, states: Artificially separating or partitioning what is inherently one total procedure into 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 herein by reference, as updated quarterly by CMS and available at http://www.cms.hhs.gov/nationalcorrectcodeinited/. Respondent did not reimburse claimant for massage therapy billed under CPT code 97124 when chiropractic services were billed under CPT code 98941. Pursuant to the edits, billing of CPT code 97124 on the same date as chiropractic services is not separately reimbursable unless the proper modifier is utilized. The NCCI documentation also included examples of the usage of the modifier in CMT/PT situations; Medicare covers chiropractic manipulative treatment (CMT) of five spinal regions. Physical medicine and rehabilitation services described by CPT codes 97112, 97124 and 97140 are not separately reportable when performed in a spinal region undergoing CMT. If these physical medicine and rehabilitation services are performed in a different region than CMT and the provider is eligible to report physical medicine and rehabilitation codes under the Medicare program, the provider may report CMT and the above codes using modifier 59. Taking the above into account, it is clear that in very limited circumstances, CPT codes 97124 and 98941 can be billed together; however, the provider must both utilize the modifier 59 and demonstrate that the services in question be provided to different areas of the body. Here, while claimant included the proper modifier 59, the proofs are insufficient to establish that the procedure/service was distinct or independent from the other services performed. Therefore, I conclude that respondent properly denied payment of the services billed under CPT code 97124. I find unconvincing the proofs submitted by claimant. Office Visits In Clifford Medical & Rehabilitation a/s/o P.A. v. Allstate New Jersey, NJ1345905 (Forthright, Mar. 2, 2012), DRP Maria Daniskas, Esq. held that health care providers are required to utilize modifier -25 to indicate that the patient s condition required significant separately identifiable evaluation and management services on the same date that chiropractic treatment was rendered. The failure of the provider to properly modify the CPT code and justify a separately billable E/M service was fatal to the claim. Relying on this arbitration award, respondent argues that reimbursement for the office visits on 07/27/10, 08/25/10, 09/27/10, 10/06/10, 10/27/10, 11/29/10, 01/21/11, and 02/02/11 should be denied. NJ1104001382836 Page 3 of 7
While respondent acknowledges that claimant billed for these visits with modifier 25, it is respondent s position that the office notes fail to demonstrate that a significant separately identifiable evaluation and management service was performed. I agree. As such, I deny the claim of $419.09 ($59.87 x 7) for CPT code 99213-25 for the 08/25/10, 09/27/10, 10/06/10, 10/27/10, 11/29/10, 12/29/10, and 01/21/11 dates of service. For the reasons discussed below, I deny the $59.87 claim for the 02/02/11 office visit. Medical Necessity Notably, medical necessity for the services from 07/27/10 through 01/31/11 is not disputed as payments were made by respondent during these dates of service. The parties do dispute, however, whether the services on 02/02/11 were medically necessary. Accordingly, I start my analysis of this issue by stating the applicable regulatory provisions and legal principles. The regulatory definition of the phrase medical necessity is set forth in N.J.A.C. 11:3-4.2 as follows: Medically necessary or medical necessity means that the medical treatment or diagnostic test is consistent with the clinically supported symptoms, diagnosis or indications of the injured person, and: 1. The 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 in the Appendix, as applicable; 2. The treatment of the injury is not primarily for the convenience of the injured person or provider; and 3. Does not include unnecessary testing or treatment. The phrase clinically supported is defined in N.J.A.C. 11:3-4.2 as follows: Clinically supported means 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 ensure that the proper medical indications exist to justify ordering the treatment or test; 2. Physically examined the patient including making an assessment of any current and/or historical subjective complaints, observations, objective findings, neurological indications and physical tests; 3. Considered any and all previously performed tests that relate to the injury and the results and which are relevant to the proposed treatment or test; and NJ1104001382836 Page 4 of 7
4. Recorded and documented these observations, positive and negative findings and conclusions on the patient s medical records. The question of whether medical treatment is necessary is initially decided by the patient s treating physician, and an objectively reasonable belief in the utility of a treatment or diagnostic method based on credible and reliable evidence of its medical value is enough to qualify the expense for PIP purposes. Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491, 512 (1991). The treating physician enjoys wide discretionary latitude in determining the extent of treatment needed for a particular patient in that it is not unusual to witness a genuine dichotomy of medical opinion as to the type and extent of treatment needed for a particular injury. Elkins v. N.J. Mfrs. Ins. Co., 244 N.J. Super. 695, 701 (App. Div. 1990); Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400, 410 (Law Div. 1984). As a result, when there is a conflict in the opinions of the medical experts regarding a patient s treatment or condition, the treating physician s objectively reasonable belief should be accorded greater weight. Mewes v. Union Bldg. & Const. Co., 45 N.J. Super. 88, 94 (App. Div. 1957). Guided by these regulatory provisions and legal principles, I turn to an examination of the relevant facts, informing my consideration of the medical necessity issue. As a result of the severity of patient s injuries, he was taken to Robert Wood Johnson Hospital where he was admitted. He later began treating for his injuries with claimant. At the time of his initial consultation, he complained of cervical pain radiating to his arms with paresthesia, hand pain with paresthesia, mid back pain, low back pain radiating into the legs with paresthesia, knee pain, right ankle pain, headaches, dizziness, and blurry vision. Physical examination revealed weakness and decreased sensation in the right deltoid and biceps brachial. Decreased intersegmental motion of the cervical, thoracic, and lumbar spinal regions was also noted. The following orthopedic tests were positive: Foraminal Compression, Cervical Distraction, Shoulder Depressor, Lasegue s, Leg Lowering test, Braggard s, Fabre Patrick, Yeoman s, Hibb s, Kemp s, Soto Hall, Valsalva, and Linders. Based on the subjective complaints and objective findings, patient was placed on a conservative chiropractic treatment plan that consisted of spinal manipulation, mechanical traction, and massage. On 10/27/10, patient was re-evaluated by claimant. At that time, he was showing improvement. Physical examination showed increased range of motion in cervical and lumbar spinal regions since the last evaluation and only Foraminal Compression and Kemp s tests were positive. However, he continued to complain of intermittent moderate neck, mid back, and low back pain. Accordingly additional treatment was recommended. On 01/21/11, patient was re-evaluated by claimant. At that time, he was showing constant static progress. Physical examination revealed increased range of motion. Kemp s and Foraminal Compression tests continued to be positive. Patient continued to complain of occasional mild to moderate neck, middle back, and low back pain. As a result, additional treatment was recommended. Patient treated with claimant until 02/02/11. Respondent made partial payments for the services claimant provided to patient. NJ1104001382836 Page 5 of 7
Respondent denied payment for the 02/02/11 services based upon the 01/26/11 chiropractic independent medical examination (IME) performed by Dr. Jay Cohen who opined that patient had reached MMI, and no further chiropractic treatment was medically necessary. Where there is a dispute as to PIP benefits, the burden rests on the claimant to establish by a preponderance of the evidence; that is, the greater weight of the credible evidence, that the services for which PIP payment is sought were reasonable, medically necessary and causally related to an automobile accident. Miltner v. Safeco Ins. Co. of Am., 175 N.J. Super. 156 (Law Div. 1980). While it is true the treating physician s opinion is not automatically accorded conclusive weight, Black & Decker Disability Plan v. Nord, 123 S. Ct. 1965 (2003), (relating to ERISA Plans), it is accorded an appropriate measure of deference. Having considered the arguments of counsel in light of the record and applicable regulatory provisions and legal principles, I conclude that claimant has not proven by a preponderance of the credible evidence the medical necessity of the services on 02/02/11. In reaching this conclusion, I find persuasive the opinion of Dr. Cohen. Accordingly, I deny the claim for the 02/02/11 services. That said, I note that the hearing was left open for respondent to provide Explanation of Benefits (EOBs) reflecting payments allegedly made. Respondent, however, did not provide any EOBs post-hearing. Consequently, I accept as accurate the payment amounts reflected in claimant s post-hearing Arbitration Summary. Therefore, I award $76.99 for CPT codes 98941 and 97012 for the 09/27/10, 09/29/10, 10/01/10, 10/18/10, 10/20/10, 10/22/10, 11/15/10, 12/03/10, 12/10/10, 01/24/11, and 01/28/11 dates of service. The medical necessity of these services provided on these dates is not contested. The total amount awarded is $846.89 ($76.99 x 11). Taking into account the amounts paid by respondent, I also award the following: (1) $109.29 for CPT code 99207-25 for the 07/27/10 date of service; (2) $1.00 for the 08/16/10 date of service, representing the difference between the fee schedule amounts for CPT codes 98941 and 97012 and the amounts paid; (3) $4.92 for the 10/06/10 date of service, representing the difference between the fee schedule amounts for CPT codes 98941 and 97012 and the amounts paid; (4) $11.67 for the 10/08/10 date of service, representing the difference between the fee schedule amounts for CPT codes 98941 and 97012 and the amounts paid; and (5) $50.79 for the 12/01/10 date of service, representing the difference between the fee schedule amounts for CPT codes 98941 and 97012 and the amounts paid. In sum, the total amount awarded is $1,024.55. On a final note, as respondent is a successor to the Unsatisfied Claim and Judgment Fund, counsel fees, costs, and interest are not recoverable in a claim against respondent. See Cheatham v. Unsatisfied Claim & Judg. Bd., 178 N.J. Super. 437 (App. Div. 1981) and Gargiulo v. Rutgers Cas. Ins. Co., 265 N.J. Super. 225 (App. Div. 1993). See also N.J.S.A. 17:30-5, et seq. and N.J.S.A. 39:6-61, et seq. Accordingly, no costs, fees, or interest are awarded. NJ1104001382836 Page 6 of 7
Therefore, the DRP ORDERS: 1. Medical Expense Benefits: Awarded: Disposition of Claims Submitted Medical Provider Amount Claimed Amount Awarded Payable To Back Pain, P.C. $3,261.24 $1,024.55 Back Pain, P.C. *subject to co-payment and deductible 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 not awarded pursuant to N.J.S.A. 39:6A-5h.: N/A 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: $ N/A Attorney s Fees: $ N/A 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: 05/31/13 NJ1104001382836 Page 7 of 7