Opinion
Index No. CV-742814-18/KI
04-06-2022
Andrew Nicholas DEMAS a/a/o Hector Quitian, Andrew Nicholas Demas a/a/o Fatumata Bayo, Andrew Nicholas Demas a/a/o Farah Felix, Andrew Nicholas Demas a/a/o Rosario Alonso, Andrew Nicholas Demas a/a/o Clotilde Pinela, Andrew Nicholas Demas a/a/o Keisha Brathwaite, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
Freiberg, Peck & Kang LLP (Kimberly Sarlo of counsel), Armonk, for defendant. Law Office of Zara Javakov, Esq. P.C. (Zachary Albright Whiting of counsel), New York City, for plaintiff.
Freiberg, Peck & Kang LLP (Kimberly Sarlo of counsel), Armonk, for defendant.
Law Office of Zara Javakov, Esq. P.C. (Zachary Albright Whiting of counsel), New York City, for plaintiff.
Richard Tsai, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion, Affirmation, Coder Affidavit and Exhibits Annexed
Affidavit, Exhibits A-I, Affirmation of Service 1-5
Affirmation in Opposition, Affidavit, Affidavit of Service 6-8
Reply Affirmation, Affirmation of Service 9-10
In this action seeking to recover assigned first-party no-fault benefits for the unpaid balance for cupping provided to six different assignors, defendant moves for summary judgment dismissing the complaint on the grounds that plaintiff billed in excess of the New York workers' compensation fee schedule (Motion Seq. No. 001). Plaintiff opposes the motion.
The issues presented are whether defendant's fee coder properly downcoded cupping from CPT Code 97799 to CPT 97039, and whether the fee coder properly assigned the appropriate Relative Value Units for cupping when dealing with a "By Report" code. Another issue presented is whether the fee coder properly disallowed additional cupping treatments that were billed on the same date of service. Resolution of these issues require the parties to address, among other things, whether cupping is a therapeutic medical/rehabilitation service or procedure or a modality, and which sources a fee coder may rely upon for guidance when faced with coding issues.
BACKGROUND
According to the complaint, plaintiff's assignors Hector Quitian, Rosario Alonso, Keisha Brathwaite, Clotilde Pinela, Farah Felix, and Fatumata Bayo allegedly sustained injuries in automobile accidents which occurred on September 26, 2017, March 7, 2018, April 21, 2018, March 7, 2018, November 28, 2017, and February 17, 2018 (see defendant's exhibit A in support of motion, complaint ¶ 2). Plaintiff allegedly rendered services to its assignors and submitted bills to defendant in the amounts of $844.36, $1,320.30, $477.38, $1,956.62, $613.70, and $1,633.98 (id. ¶¶ 4-5). Defendant allegedly partially paid plaintiff $577.85, $1,231.35, $353.66, $1,682.93, $446.71, and $1,101.36 (id. ¶ 6).
According to the explanations of review for the bills submitted, defendant paid plaintiff in full for the billed services, except as to cupping, which was billed under CPT code 97799. For cupping, defendant reduced the amount billed from $25.00 to $19.07. Although plaintiff had billed for cupping applied to the multiple areas of the body in a single visit (e.g., neck, mid back, and low back), defendant largely reimbursed plaintiff for only one unit of cupping per date of service.
For assignor Rosario Alonso, defendant did not disallow additional treatments of cupping, but rather paid $19.07 for each additional unit of cupping (see plaintiff's Exhibit G in support of motion, Explanation of Review). For assignor Clotilde Pinela, defendant similarly did not disallow additional treatments of cupping for dates of service from April 5-23, 2018, but rather paid $19.07 for each additional unit (see plaintiff's Exhibit F in support of motion, Explanation of Review). Defendant asserts that plaintiff was overpaid for the claims of those assignors (see affirmation in support of defendant's motion at 2 n 1).
On September 19, 2018, plaintiff commenced this action to recover the full amount of cupping billed to defendant, with interest, plus attorneys' fees (see defendant's exhibit A in support of motion, summons and complaint). On November 27, 2018, defendant allegedly answered the complaint (see defendant's exhibit B in support of motion, answer and affidavit of service).
DISCUSSION
"On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action"
( Xiang Fu He v Troon Mgt., Inc. , 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).
" Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 ‘shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers' compensation board for industrial accidents’ " ( Government Empls. Ins. Co. v Avanguard Med. Group, PLLC , 127 AD3d 60, 63 [2d Dept 2015], affd 27 NY3d 22 [2016], quoting Insurance Law § 5108 [a] ).
To meet its prima facie burden that it fully paid the claims in accordance with the fee schedule, the defendant must submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller ( Merrick Med., P.C. v A Cent. Ins. Co. , 64 Misc 3d 142[A], 2019 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Renelique v American Tr. Ins. Co. , 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Oleg's Acupuncture, P.C. v Hereford Ins. Co. , 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018][certified medical coder and biller]; Compas Med., P.C. v American Tr. Ins. Co. , 56 Misc 3d 133[A], 2017 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [professional coder]).
If defendant applied a CPT code different from the CPT code under which the services had been billed, the affidavit must offer an explanation to support the conclusion that another CPT code is more appropriate (see Z.M.S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co. , 58 Misc 3d 140[A], 2017 NY Slip Op 51860[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [defendant did not explain recoding of services billed under CPT codes 97810, 97811, 97813 and 97814]; see Spineisland for Chiropractic, P.C. v 21st Century Advantage Ins. Co. , 55 Misc 3d 141[A], 2017 NY Slip Op 50598[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017] [defendant sufficiently demonstrated that it had properly applied CPT code 95833 to the services that had been billed by plaintiff under CPT code 95831]; accord Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016][defendant's submissions sufficiently demonstrated that it had properly applied CPT code 97140 to the services that had been billed under CPT code 97799]).
The affidavit must show that defendant properly applied the appropriate relative value units and conversion factor assigned to the CPT code(s) for the services rendered in calculating the amount for which plaintiff was entitled to be reimbursed (see Renelique , 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U], supra ; Renelique v American Tr. Ins. Co. , 57 Misc 3d 145[A], 2017 NY Slip Op 51450[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [conversion factor not provided]; see also Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A], 2017 NY Slip Op 51808[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [defendant failed to demonstrate that it had used the correct conversion factor]; Liberty Chiropractic, P.C. v 21st Century Ins. Co. , 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [defendant failed to demonstrate correct conversion factor was applied]).
Lastly, the applicable portion of the fee schedule must be annexed to defendant's papers ( Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co. , 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Here, defendant submitted an affidavit from Bandy L. Donbeck, RN, CPC, a professional coder credentialed with the American Academy of Professional Coders (affidavit of Brandy L. Donbeck at 1). Plaintiff billed cupping under CPT code 97799, but Donbeck contends that the correct code for cupping is CPT code 97039, citing the AMA CPT Knowledge Base, and that the correct Relative Value Unit (RVU) is 3.30, which is the RVU for CPT code 97016, the code for vasopneumatic devices (id. at 46-47). According to Donbeck, "97016 was selected as the reference code after reviewing the WebMD article on cupping and CPT Assistant description of 97016" (id. at 46). Lastly, Donbeck contends that, as downcoded, plaintiff was allowed to bill CPT code 97039 only once per date of service, citing the AMA CPT Assistant Archives from June 2010 (id. at 47).
In opposition, plaintiff maintains that the Acupuncture Society of New York endorses CPT code 97799 for cupping (affidavit of Andrew Nicholas Demas, L.Ac. ¶ 17). According to plaintiff, cupping was correctly billed under CPT Code 97799 "because cupping is a rehabilitative procedure as opposed to a modality" (id. ¶ 18). Plaintiff references an advisory memorandum from the Department of Health and Human Services, which he argues supports his contention that cupping is a procedure, as opposed to a modality (id. ¶ 19). Additionally, plaintiff argues that the court should give no weight to Donbeck's opinion regarding what medical procedure was performed and what a relative service would be, because she "is not a licensed medical professional in the fields or acupuncture or physical medicine" and "has not establish any expertise in acupuncture or chiropractic studies or performance in order to compare cupping to vasoneumatic [sic] treatment" (id. ¶ 20). Lastly, plaintiff insists that the CPT Assistant is not binding on the court (id. ¶ 21).
Contrary to plaintiff's arguments, Donbeck's affidavit may be considered because she is a professional fee coder ( Oleg's Acupuncture, P.C. , 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] ; Compas Med., P.C. , 56 Misc 3d 133[A], 2017 NY Slip Op 50946[U] ). As defendant correctly points out, Donbeck may rely on the AMA CPT Assistant in determining whether the claims were paid in accordance with the fee schedule (see Matter of Glob. Liberty Ins. Co. v McMahon , 172 AD3d 500, 501 [1st Dept 2019] ["because CPT Assistant is incorporated by reference into the CPT book, which is incorporated by reference into the Official New York Workers' Compensation Medical Fee Schedule applicable to this claim under the No—Fault Law, the award rendered without consideration of CPT Assistant is incorrect as a matter of law]).
The excerpts from the AMA CPT Assistant for Summer 1995, annexed to Donbeck's affidavit state, in relevant part:
"In CPT 1995, Physical Medicine and Rehabilitation is now divided into three sections:
Modalities
Therapeutic Procedures
Tests and Measurements
Modalities
‘Any physical agent applied to produce therapeutic changes to biologic tissues; includes but not limited to thermal, acoustic, light, mechanical or electric energy.’
The definition of modalities was added to CPT 1995 to indicate the different types of service included in this section. To clarify the work performed by the provider, the section is divided into two parts; Supervised and Constant Attendance . Supervised modalities are defined as the application of a modality that does not require direct (one on one) patient contact by the provider. Constant attendance is defined as the application of a modality that requires direct (one on one) patient contact by the provider.
* * *
Therapeutic Procedures
‘A manner of effecting change through the application of clinical skills and/or services that attempt to improve function.’
The definition of therapeutic procedures was added to CPT 1995 to clarify the differences between therapeutic procedures, modalities, and tests and measurements. These procedures require direct one on one patient contact by a physician or therapist " (emphasis added).
According to the chiropractic fee schedule (effective June 1, 2012), CPT code 97799 is an "unlisted physical medicine/rehabilitation service or procedure," whereas CPT code 97039 is an "unlisted modality."
In downcoding cupping to CPT code 97039, Donbeck relied on AMA CPT Knowledge Base No. 6662. There, someone asked, "Is code 97799 ... the appropriate code to use to report a cupping procedure (suction cups) performed by an acupuncturist?" In response, someone replied, "No. cupping is considered a modality ... and should be reported with code 97039 ." However, defendant did not establish that the responses in the AMA CPT Knowledge Base are, like the AMA CPT Assistant, authoritative.
But that is not to say that plaintiff correctly billed cupping under CPT code 97799. Plaintiff himself stated, "direct one-to-one contact is not necessary as the cups may be placed on the patient and the patient may be left unattended" (Demas aff. ¶ 19). However, this would contradict the definition of a therapeutic procedure mentioned in CPT Assistant, that therapeutic procedures require direct one on one patient contact. Although plaintiff cited the Acupuncture Society of New York and the Department of Health and Human Services, plaintiff did not demonstrate that these sources are authoritative on the question of fee coding. In any event, plaintiff did not submit a copy of the advisory memorandum from the Department of Health and Human Services, and the web page to the Acupuncture Society is now a broken link (see https://www.asny.org/AcuNF [last accessed April 5, 2022]).
Even assuming, for the sake of argument, that the AMA CPT Knowledge Base is an authoritative source, like the AMA CPT Assistant, CPT Code 97039 is a "By Report" code, which is not assigned an RVU. Instead, "a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement" ( Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. , 57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d Dep, 2d, 11th & 13th Jud Dists 2017], affd 175 AD3d 455 [2d Dept 2019] ).
In the excerpt of the chiropractic fee schedule submitted by defendant, General Ground Rule 2 states, "For any procedure where the relative value unit is listed in the schedule as ‘BR,’ the chiropractor shall establish a relative value unit consistent in relativity with other relative value units shown in the schedule. The insurer shall review all submitted ‘BR’ unit values to ensure that the relative consistency is maintained."
It does not appear that Donbeck reviewed the RVU that plaintiff used for CPT code 97799, to see if that RVU would be "consistent in relativity" with other RVUs for the listed modalities. Instead, Donbeck apparently looked to another CPT code with a known RVU that she thought was most similar to cupping, i.e. "CPT code 97016 (application of a modality to 1 or more areas; vasopneumatic device)" (affidavit of Brandy L. Donbeck at 46).
According to the excerpts of the chiropractic fee schedule submitted by defendant, plaintiff is a provider located in Region IV, which has a conversion factor of $5.78. Plaintiff billed for one unit of cupping at $25.00, which leads to the conclusion that the RVU that plaintiff used was 4.33 ($25.00/unit ÷ $5.78 = 4.33).
By comparison, the RVUs for listed modalities for the supervised modality codes (CPT codes 97010 to 97028) range from 2.37 to 2.66, while the RVUs for the listed constant attendance codes (CPT codes 97032 to 97036) range from 2.41 to 3.89.
"Inasmuch as the superintendent of insurance has not adopted or established a fee schedule for reimbursement of acupuncture services performed by a licensed acupuncturist, an insurer may consider the ‘charges permissible for similar procedures under schedules already adopted or established by the superintendent’ ( 11 NYCRR 68.5 [b]) for purposes of determining the appropriate reimbursement rate"
( VS Care Acupuncture v State Farm Mut. Auto. Ins. Co. , 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U] [App Term, 1st Dept 2015] ). Here, Donbeck relied on information about cupping obtained from WebMD to determine that cupping was similar to CPT code 97016. However, as plaintiff points out, the information from WebMD was hearsay.
" ‘It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness’ ... [A]n expert may rely on out-of-court material if ‘it is of a kind accepted in the profession as reliable in forming a professional opinion’ or if it ‘comes from a witness subject to full cross-examination on the trial.’
In order to qualify for the ‘professional reliability’ exception, there must be evidence establishing the reliability of the out-of-court material" ( Hambsch v New York City Tr. Auth. , 63 NY2d 723, 725-26 [1984] [internal citations omitted]). Here, defendant presented no evidence to establish the reliability of the Web MD information about cupping to fall within the professional reliability exception. Consequently, Donbeck did not establish a factual basis for her opinion that cupping was similar to CPT code 97016.
In any event, defendant's own submissions undermined Donbeck's opinion that the RVU for CPT code 97016 should be used for cupping.
Defendant submitted an excerpt from Acupuncture Today, which states, in relevant part, "Also, 97016 is for a vasopneumatic device which may be considered reasonable and necessary for the application of pressure to an extremity for the purpose of reducing edema.... Think of a large blood pressure cuff style device placed over an extremity and that is essentially what a vasopneumatic device is. While cupping does create suction and pressure to tissue, it would not fit the definition for use of CPT code 97016 " (emphasis added).
Thus, defendant did not meet its prima facie burden of demonstrating, as a matter of law, that it properly applied CPT code 97039 and the RVU applicable to CPT code 97016, to the cupping that had been billed under CPT code 97799.
Finally, this court agrees with defendant that CPT code 97039 may only be reported once per date of service. The discussion of CPT code 97035 in the August 2010, Volume 20 Issue 8 of CPT Assistant is instructive. It states, "[T]he constant attendance codes (97032-97039) include language in their code descriptors that indicate ‘application of a modality to one or more areas.’ The number of areas of application is not a factor when reporting these codes. Therefore, code 97035 should be reported once for that patient encounter, regardless of the number of areas " (emphasis added).
Nevertheless, given that defendant did not establish that the AMA CPT Knowledge Base was an authoritative source to code cupping under CPT code 97039, it remains an open question as to whether plaintiff was permitted to bill for multiple units of cupping during a single date of service.
CONCLUSION
Upon the foregoing cited papers, it is hereby ORDERED that defendant's motion for summary judgment dismissing the complaint based on a fee schedule defense (Seq. No. 001) is DENIED .
This constitutes the decision and order of the court.