Opinion
CV-732531-17/KI
09-20-2021
JJ & R CHIROPRACTIC PC, AAO Dorine Fleury, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant.
Plaintiff's Firm, Gary Tsirelman, Attorney at Law, Gary Tsirelman, P.C., 129, Livingston St, Suite 2 Brooklyn, New York 11201, Telephone: (718) 438-1200 gary@gtmdjd.com Defendant's Firm: David Trompeter, Attorney at Law, Law Office of Goldstein, Flecker, & Hopkins, 2 Huntington Quadrangle, Suite 2N01, Melville, NY 11747, Telephone: (516)-714-7383, Dtrompeter@geico.com
Plaintiff's Firm, Gary Tsirelman, Attorney at Law, Gary Tsirelman, P.C., 129, Livingston St, Suite 2 Brooklyn, New York 11201, Telephone: (718) 438-1200 gary@gtmdjd.com
Defendant's Firm: David Trompeter, Attorney at Law, Law Office of Goldstein, Flecker, & Hopkins, 2 Huntington Quadrangle, Suite 2N01, Melville, NY 11747, Telephone: (516)-714-7383, Dtrompeter@geico.com
Patria Frias-Colón, J.
Decision following virtual trial via the Teams application platform held on July 6, 2021 and post-trial briefs submitted by counsel representing both parties.
Papers submitted for the above listed case Received:
Defendant's post-trial closing brief August 13, 2021
Plaintiff's post-trial closing brief August 16, 2021
Procedural History
Plaintiff JJ & R Chiropractic PC ("Plaintiff") filed this case against Defendant Geico General Insurance Company ("Defendant") on September 18, 2017 seeking assigned first-party no-fault benefits for services it rendered to Assignor Dorine Fleury. Defendant filed its answer on December 18, 2017. Plaintiff filed a motion to compel discovery on August 9, 2018. Plaintiff then filed a motion to preclude on January 29, 2019 that was subsequently withdrawn on January 23, 2020. In its complaint, Plaintiff alleged that Defendant improperly denied the claims for no-fault insurance benefits totaling $2,330.56. The matter was first on August 28, 2018 when the Court decided Plaintiff's motion for discovery. The matter was next on February 13, 2019 to determine Plaintiff's motion to preclude, which was adjourned to January 23, 2020 on which date it was withdrawn. The matter was then adjourned for trial to July 6, 2021.
On the July 6, 2021 trial date, the parties stipulated that each side established its respective prima facie case. Specifically, that the underlying claims were submitted timely by Plaintiff and were denied timely by Defendant as a result of Plaintiff using inappropriate fee schedule and the only issue to be determined at trial was whether the appropriate fee schedule was applied given the services rendered to the assignor.
There were two other accompanying cases adjourned for trial on July 6, 2021 involving the same parties, the same witnesses and the same dispositive issues of law as in the instant matter. To avoid having three trials, the parties entered into a stipulation that the Decision and Order on the instant matter would result in consent Orders for the other two cases, to wit, CV-737843-17/KI (JJ & R Chiropractic PC, a/a/o Cazemb Awai v. Geico General Ins. Co. ) and CV-737845-17/KI (JJ & R Chiropractic PC, a/a/o Christopher Pierson v. Geico General Ins. Co. ). See Trial Transcript ("T"), July 6, 2021, at pages 4-5 (T. 4-5).
Following the July 6, 2021 trial, the parties submitted post-trial briefs in support of their respective positions. Plaintiff seeks a judgment award in its favor totaling $2,330.56 for diagnostic and treatment services it rendered to Assignor Dorine Fleury, as well as statutory interest and attorney and filing fees. Defendant opposes such an award, arguing that Plaintiff submitted its claim using an incorrect billing code and failed to provide the services for which it billed Defendant.
Statement of Facts and Evidence from the Trial
Assignor Dorine Fleury was injured in a motor vehicle accident on or about June 18, 2017. Plaintiff diagnosed and treated the assignor's injuries on June 29, 2017. On or about July 5, 2017, Plaintiff billed Defendant for $1,019.62 for pain fiber nerve conduction studies ("pf-NCS") of the Assignor's lower extremities, and $1,310.94 for pf-NCS of the Assignor's upper extremities, for a total of $2,330.56. Plaintiff submitted the claims under Current Procedural Terminology ("CPT" ) Code 95904. Defendant denied said disputed claims due to lack of medical necessity for said services and using incorrect fee schedule for said bills.
See Defendant's Exhibit 3 in evidence.
CPT codes are uniform codes for medical, surgical and diagnostic services that have been developed and published by the American Medical Association and are standardized throughout the country. See also T. 62-63.
On or about July 27, 2017, Defendant denied Plaintiff's claim because the fees were not in accordance with fee schedules. Plaintiff then filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for its alleged failure to pay it $2,330.56 for services rendered to Assignor Fleury, as well as statutory interest and attorney's fees, and served it on Defendant on or about October 20, 2017.
See Exhibit A of Defendant's motion under Index number CV-732531-17/KI — Summons and Complaint for Plaintiff.
On or about December 13, 2017, Defendant served and filed its answer which listed affirmative defenses, including but not limited to that there was no medical necessity for Plaintiff to have performed the tests, that Plaintiff billed Defendant under the wrong code, and that, to the extent that services were rendered, the tests performed by Plaintiff should, at most, result in reimbursement in the amount of $291.32 ($145.66 for the upper extremity and $145.66 for the lower extremity).
See Exhibit B of Defendant's motion under Index number CV-732531-17/KI — Defendant's Answer. Defendant informed the Court that it was not pursuing its defense that the tests performed on the assignor by Plaintiff were not medically necessary. (T. 172).
On July 6, 2021, this Court conducted a virtual trial via the Microsoft TEAMS video platform wherein Defendant and Plaintiff presented witnesses. Testifying for Defendant were Dr. Kenneth Einberg, M.D., and certified professional coder Cerean Edwards.
The parties stipulated to the following: that each side established prima facie ; admission into evidence of the fee schedule (Defendant's Exhibit 1), the CPT assistant (Defendant's Exhibit 2), Plaintiff's bills (Defendant's Exhibit 3) and its medical records (Defendant's Exhibit 4). (See T. 9-10, 13-17, 28); that witness Cerean Edwards was an expert in medical billing coding and Dr. Kenneth Einberg was an expert in neurology (T. 20-22); that witness Dr. Joseph Gambino was an expert in chiropractic medicine (T. 24).
During his testimony, Dr. Einberg described both pf-NCS and EMG/NCV testing. (T. 35-39, 160). Dr. Einberg testified that for EMG/NCV (hereinafter NCV) testing, three factors had to be evaluated: 1) latency, which he stated was the time it takes for a stimulus to generate a waveform; 2) amplitude and 3) velocity (T. 38-39). Dr. Einberg further testified that NCV testing is devoid of patient participation to the point where the patient can be unconscious, which makes it a "purely objective" test (T. 39-40).
This acronym stands for Electromyography /Electromyogram /EMG/Nerve Conduction Velocity/NCV.
Plaintiff's counsel objected to the testimony regarding EMG/NCV testing because it was irrelevant to whether Plaintiff was entitled to payment for the pf-NCS tests it performed. Defendant's counsel asserted this testimony was relevant because the billing code used by Plaintiff was for EMG/NCV testing. (T. 37-38).
Dr. Einberg testified that pf-NCS testing does not lend itself to measuring the variables latency, amplitude and velocity and the test is "dependent upon patient participation" (T. 40). Dr. Einberg testified that, based on the medical records, including the medical charts, pf-NCS testing had been done (T. 42, 52). To the extent that the medical records provided stated the words "velocity and latency", Dr. Einberg testified that the charts did not actually measure velocity (T. 45, 47). Further, he could find no identifiable latency measurement in said records (T. 48). From the records, Dr. Einberg concluded that the tests performed by Plaintiff was not a NCV test (T. 48). During his cross-examination, Dr. Einberg said he did not examine the machine that Plaintiff used on the patient (T. 50-51) and he never billed for pf-NCS testing (T. 51).
Expert coder Cerean Edwards testified that CPT codes are applied in medical billing and reimbursement is tandem with a conversion factor. The rates set by New York State Workers’ Compensation are broken-down by regions within New York, which is Region Four in the instant matter (T. 63). Ms. Edwards testified that these variables are applied to the Workers’ Compensation fee schedule (T. 63-64). There were two disputed bills in this case: $1,019.62 and $1,310.64, totaling $2,330.56 (T. 65). Plaintiff submitted the bills applying CPT code 95904. (T. 66, 115). Code 95904 required that amplitude, latency, and velocity be measured (T. 66-67, 98, 110). Plaintiff should have used CPT code 0110T because "it's a quantitative sensory testing and it indicates that [pf-NCS] test is not the same as a [NCV] test" (T. 67, 71, 74, 109). Based on Ms. Edwards’ review of the medical records submitted by Plaintiff, the test performed by Plaintiff was pf-NCS (T. 70). The 0110T code is used to bill per extremity, whereas the 95904 code is billed per nerve (T. 73-74). Since Plaintiff did not test for all three variables of amplitude, latency, and velocity, Plaintiff could not be reimbursed under the 95904 code (T. 74). After applying the correct conversion factors and relative values applicable in New York State Region Four, the lower and upper extremity tested in each of the two bills should have resulted in a total of $145.66 for one bill and $145.66 for the other bill, as opposed to each nerve in each extremity being billed (T. 75).
During her cross-examination, Edwards testified that: CPT code 95904 does not explicitly state that amplitude, latency and velocity have to be tested (T. 76-78); that said code reads "amplitude and latency/velocity (T. 84, 101, 107); code 95904 does not require patient participation (T. 95); code 95904 does not list a waveform but does list the word "sensory" (T. 96-97). Neither bill was paid, even at the lower rate of $292.32 (T. 97). In her career, Edwards has examined thousands of pf-NCS and NCV bills (T. 111).
Dr. Gambino testified that he performed a small pain fiber nerve conduction study test (i.e., pf-NCS) on the patient (T. 119, 157); he measured the amplitude and the "latency, velocity" (T. 120-121, 125, 134); placed a probe, or electrode, over each nerve (T. 121-122). He has performed this test a few thousand times since 2008 or 2009 (T. 123); learned how to perform and bill for the test from the American Academy of Sensory Electrodiagnostic Medicine ("AASEM") (T. 124-125, 139-140, 157). Plaintiff's medical records show measurements for amplitude and for latency/velocity (T at 130). He further testified that Defendant improperly coded the procedure because it used a circa-2011 coding manual that failed to reflect Dr. Gambino's addition of a potentiometer device to the machine in February 2012 that allowed him to test every nerve as opposed to the extremity itself, i.e., his machine had a potentiometer that tested for amplitude and a pedal connected to the machine that tested for latency/velocity, thereby justifying the higher reimbursement rate (T. 135-137, 150). He submitted the disputed bills under code 95904 rather than 0110T because 0110T is a code used for experimental procedures where one tests the extremity itself instead of the individual nerves, which were tested here (T. 139, 141). Further, code 0110T does not reference amplitude or latency/velocity, whereas 95904 does (T. 142, 144, 145). Not all three of the elements of amplitude, velocity and latency need to be tested to bill under code 95904 (T. 155-156, 161). Dr. Gambino also testified that AASEM certifies the machine in addition to providing training and billing on the machine he uses (T. 157). During his testimony, he confirmed: the test he performed on the assignor was necessary to "objectively identify and quantify [the assignor's neuropathic physiology"; he was not an expert in neurology or neurophysiology (T. 146-147); his chiropractic practice performs pf-NCS testing, not EMG/NCV testing (T. 148-149, 160).
See Defendant's Exhibit 4 (D4) in evidence.
Issues Presented:
Is Plaintiff entitled to the higher reimbursement rate, the lower reimbursement rate, or no reimbursement?
Positions of the Parties:
Plaintiff claims that it used the proper CPT billing code (95904) for the pf-NCS treatment that it provided to the assignor, and that its billing for each nerve totaling $2,330.56 was correct. In its post-trial brief, Plaintiff cited several American Arbitration Association ("AAA") New York No-Fault decisions involving the same parties, with different assignors, to support its position. JJ & R Chiropractic PC v. Geico Gen. Ins. Co. , Case 17-14-9025-0794, July 4, 2015, wherein the disputed bills totaling $2,330.56 was for pf-NCS testing to detect and quantify the presence of neuropathy or radiculopathy. Defendant challenged said bills through the affidavit of a physician who conducted an independent peer review and whose report covered not only the assignor in that case, but eleven other assignors treated by Dr. Gambino and concluded that Dr. Gambino's testing was not medically necessary and applying billing code 95904 was wrong because it should only be applied where a NCV test is done. In ruling for the Plaintiff, the arbitrator noted that by stating that it had reviewed medical records covering twelve cases, the peer review report failed to address the specific services provided to each individual patient making it a "general" report that could not "refute medical necessity". Regarding the coding issue, the arbitrator agreed with Plaintiff, citing Plaintiff's submission of an affidavit from its retained medical auditor who recommended Plaintiff be reimbursed the full amount and concluding that the American Medical Association ("AMA") guidelines do not mandate that all three parameters of amplitude, latency and velocity be measured in order for the test to be billed using code [sic] 95904." See Case 17-14-9025-0794, at p. 6. Accordingly, the arbitrator awarded Plaintiff $2330.56, the full amount sought.
See JJ & R Chiropractic PC v. Geico Gen. Ins. Co. , Case 17-14-9025-0794, at p. 5.
While plaintiff's medical auditor acknowledged that the test performed was a pf-NCS, she suggested it was an "objective" test analogous to the EMG/NCV test, suggesting that in blending the two tests allowed for using billing code 95904 warranting full reimbursement. Specifically stating that "Applicant billed for the testing pursuant to the CPT Code 95904 [and that] the AANEM ["American Association of Neuromuscular and Electrodiagnostic Medicine"] recommends code # 95904 for all NCV tests." See JJ & R, Case 17-14-9025-0794, at p. 6. (emphasis added ).
Plaintiff also the following arbitration decisions which found for Plaintiff: Case 17-14-9053-5207 (July 5, 2015) (generic peer report rejected for same reasons as in Case 17-14-9053-0794); 17-14-9025-50801 (July 5, 2015) (same peer report doctor as in cases 17-14-9053-0794 and 17-14-90535207); 17-14-1003-1018 (May 28, 2015); 17-15-1004-2462 (May 26, 2015); 17-14-1004-10075 (Aug. 9, 2015); 17-14-1002-1242 (Aug. 21, 2015) and 17-14-1001-6592 (Aug. 14, 2015).
Defendant likewise cited several AAA decisions in support of its position that the appropriate reimbursement rate is the lower amount. Citing In the Matter of the Arbitration between Pro Edge Chiropractic, PC and Geico Insurance Company , Plaintiff-chiropractor billed under CPT code 95904. Relying on its interpretation of the Workers’ Compensation Fee Schedule, the arbitrator stated that CPT code 95904 equated to NCV testing and Plaintiff's medical records reflected pf-NCS testing. Although Plaintiff amended its claim downward from $2330.56 to $291.32, conceding that it had performed pf-NCS of the assignor's upper and lower extremities rather than NCV, the arbitrator denied the claim in its entirety on the grounds that it had billed the insurer initially for NCV services it did not perform, citing 11 NYCRR Section 65-3-8(g)(1) for the position that "no payment shall be due for such claimed medical services under any circumstances: (i) when the claimed medical services were not provided to an injured party; or (ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers."
See Case No. 17-16-1035-7760 (Apr. 20, 2017).
Id. at 4.
Id. at 3, 6.
Defendant further contests Plaintiff's suggestion that, at least partially, this Court's decision turns on whether EMG-NCV testing requires all three variables (velocity, amplitude and latency) or whether only two are required. To this contention, Defendant relies on Matter of Arbitration of Brooklyn Precision Chiropractic, P.C. v. Geico Ins. Co., AAA Case No. 17-15-1019-2035 (May 6, 2016), wherein pF-NCS testing was billed under Code 95904. Aside from the decision explicitly stating that Plaintiff should not have billed for pf-NCS testing under CPT Code 95904 because "pf-NCS testing is not NCV testing", quoting Centers for Medicare & Medicaid Services stating that NCV testing requires "assessment of nerve conduction velocity, amplitude and latency " (emphasis supplied).
Id. at p. 3.
See also Matter of MDJ Chiropractic Wellness PC and Geico Ins. Co. , Case No. 17-18-1083-3529 (Aug. 26, 2019) (pf-NCS testing is not equivalent to NCV testing and thus cannot get reimbursement for pf-NCS testing at rates set forth in fee schedule for code 95904); Matter of Arbitration of Pro Adjust Chiropractic PC and Allstate Ins. Co. , Case No. 17-17-1068-5755 (May 14, 2018) (pf-NCS test, which only measures amplitude, is not a NCV test and does not measure all of the variables required for the higher reimbursement code 95904); Matter of Arbitration of SB Chiropractic PC v. MVAIC , Case No. 17-15-1023-0839 (Jan. 25, 2017) (code 95904 improperly applied for pf-NCS testing as it is a component of EMG/NCV testing).
Discussion:
The Court notes the reliance of each side on arbitration decisions. With respect to the arbitration decisions cited by Plaintiff, the Court recognizes said arbitrations involve the same parties as in the instant case. At the same time, in each arbitration, Defendant relied strongly upon independent peer reports of the same doctor who was criticized in at least several decisions for issuing generic reports that did not address the specific services rendered to each individual assignor. In the instant matter, Defendant had Dr. Kenneth Einberg, who actually testified here and noted the specific services rendered here and was also a different doctor than the one referenced in the arbitration decisions. In Plaintiff's cited arbitration decisions, it introduced the affidavit of the same medical auditor in support of the argument that the device used for the billed pf-NCS tests should be billed under CPT Code 95904 and that should be reimbursed at the higher rate, whereas in the instant case Plaintiff did not introduce evidence from any medical auditor or expert coder in support of its position that it's entitled to the higher reimbursement rate. Other than Plaintiff-chiropractor and the physician who testified on Defendant's behalf, the only other witness was Defendant's expert coder.
See, e.g., JJ & R Chiropractic PC v. Geico Gen. Ins. Co. , Case 17-14-9025-0794; JJ & R Chiropractic PC v. GEICO Gen. Ins. Co. , 17-14-9053-5207.
This Court is not constrained or bound by arbitration decisions, much less those involving different causes of action. While those cases are helpful, this Court finds more guidance from the analysis and decision in Pro-Align Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co. , 2018 NY Misc. LEXIS 858, 2018 NY Slip Op 50341 (U), 59 Misc 3d 1201(A) (NYC Civ. Court, Bronx County 2018). In that case, the Court addressed the insurer's summary judgment motion against a service-provider's submission of a $3900 bill for "Pain Fiber Nerve Conduction Studies (PFNCS)" performed on the patient's upper and lower extremities. There, Defendant only paid $291.32: $145.66 for the upper extremities and $145.66 for the lower extremities. In its argument for the lower payment rate, Defendant submitted the affidavit of a retained expert billing coder who incorporated in her report the tests performed upon the patient, as well as the AMA CPT Assistant, the Workers’ Compensation Chiropractic Fee Schedule and information regarding the machine used on the patient. The Court credited the expert's affidavit who stated that "PFNCS testing only measures amplitude and not velocity/latency , [thus] the test performed by plaintiff on [the patient] was a quantitative sensory test. " That court determined that the issue was not so much the conjunctive versus the disjunctive interpretation of "velocity and/or latency", but rather that only amplitude was tested. As such, it was a quantitative sensory test, and the appropriate billing code was 0110T. The court credited the expert's opinion that, for Region 4, the allowable fee for the testing performed was $145.66 for the lower extremity and $145.66 for the upper extremity for a total of $291.42.
See Pro-Align , LEXIS 858 at 18.
Id.
Id. at 17-18.
Id. at 19 (emphasis supplied).
Id.
Id.
Id. at 19-20. Also, the difference, in terms of both the substance and the billing between the two types of tests, is reinforced by the coverage determination by the Centers for Medicare & Medicaid Services ("CMS") which states that pf-NCS is different and distinct from assessment of nerve conduction velocity, amplitude and latency.
The Court in Pro-Align , noted that an insurer could establish its fee schedule defense by tendering an affidavit from a professional coder who has opined that the amounts paid for medical services were in accordance with and pursuant to the relevant fee schedule. In lieu of Plaintiff presenting a divergent opinion by another expert coder, the Pro-Align Court discounted Plaintiff's argument that it was entitled to be compensated for each nerve tested rather than for just the lower and upper extremities.
Id. at 20.
See id. at 21-22.
Additionally, in Allstate Ins. Co. v. A & F Med. P.C. , 2017 U.S. Dist. LEXIS 62827 (E.D. NY 2017) the District Court noted that the AMA made changes to the description and billing guidelines for CPT Code 95904 requiring that Code 0110T be applied to data collection on emerging technology, service and procedures. This takes on additional significance because Dr. Gambino testified that he instructed his billing company to bill under code 95904 rather than 0110T because the 0110T is the code used for experimental procedures (T. 139, 141).
See 2017 U.S. Dist. LEXIS 62827 at 19.
As this Court finds that the CPT codes themselves are reliably sourced, and using the codes key in evidence, this Court further finds that Defendant accurately deciphered the medical diagnoses and treatments administered by Plaintiff to the assignor. Since at the trial Defendant did not raise that the tests performed were not medically necessary, nor that the tests, even if concededly medically necessary, were performed so poorly as to render them so useless from a diagnostic and treatment aspect that they should not be reimbursed at all. See Complete Med. Care Servs. of NY, P.C. v. State Farm Mut. Auto. Ins. Co. , 21 Misc 3d 436 (Civ. Ct. New York City, Queens County 2008).
In Complete Med. Care Servs. of NY, P.C. v. State Farm Mut. Auto. Ins. Co. , Plaintiff billed Defendant insurer for EMG/NCV testing. See 21 Misc 3d at 437. When the trial began, the sole issue was whether the tests were medically necessary, but during the trial, Defendant conceded that the tests as prescribed were medically necessary but claimed that they were done so poorly that the results were useless (and therefore medically unnecessary), and reimbursement should therefore be denied. Id. at 440. The Court rejected Defendant's position, holding that it could not apply what it felt was a retrospective determination of the efficacy of a concededly medically necessary test because to do so would change the intent of the no-fault statute from one designed to provide the insured with medical coverage into one more focused on medical malpractice. Id. at 440-441. Accordingly, that Court held that even if the Defendant had "demonstrated that a prescribed medical service or procedure may not have been conducted properly, reimbursement is warranted so long as said service or procedure was medically necessary."Id. at 442.
Conclusion:
Therefor Judgment is entered for Plaintiff in the amount of $291.32 ($72.83 per limb) in addition to interest, attorney and filing fees, which are to be assessed pursuant to statute.
This constitutes the Decision and Order of the Court.