In the Matter of the Arbitration between
Neurosurgical Spine Specialists of NJ A/S/O D.O.
CLAIMANT(s),
Forthright File No: NJ1102001370534
Insurance Claim File No: 0336333740101035 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: 11P1175 (BM) Accident Date: 04/10/2009
GEICO Insurance Company
RESPONDENT(s).
Award of Dispute Resolution Professional
Dispute Resolution Professional: Nanci G. Stokes 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: D.O.
Hearing Information
An oral hearing was waived by the parties. An oral hearing was conducted on: 04/25/12.
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 demand is amended to $186,929.59.
Findings of Fact and Conclusions of Law
Nature of Dispute:
I. Were lumbar surgical procedures paid properly and/or denied? The following documentation was submitted for consideration:
Claimant:
Demand including: bills and assignment.
Submission dated 1/25/12 including: letter memorandum, medical records, Awards, Ingenix data, NCCI materials, EOBs and operative records.
Letter memorandum dated 4/25/12 with coding materials. Certification of Services.
Respondent:
Submission dated 4/22/12 with letter memorandum, IME reports, peer review, Audit and additional materials.
I. At issue are reduced or unpaid services for lumbar procedures, namely, decompression/laminectomy at bilateral L3 through S1and open discectomy at L4-5 and L5-S1.
The following codes and amounts were billed and paid:
CPT 63047 ($36,423.00 billed, paid at $9,430.06) defined as “Laminectomy, facetectomy and foraminotomy (unilateral or bilateral with decompression of spinal cord, cauda equina and/or nerve root[s], [eg, spinal or lateral recess stenosis]), single vertebral segment; lumbar” (L3)
CPT 63048 x3 ($11,813 billed, $0 paid) Laminectomy, facetectomy and foraminotomy (unilateral or bilateral with decompression of spinal cord, cauda equina and/or nerve root[s], [eg, spinal or lateral recess stenosis]), single vertebral segment; each additional segment, cervical, thoracic, or lumbar (List separately in addition to code for primary procedure)(L4, L5, S1)
CPT 69990 ($4,000 billed, paid at $2,037.76 ) Use of microscope for dissection.
63030-59 ($30,123 paid at $4,482.18) Laminotomy (hemilaminectomy), with decompression of nerve root(s), including partial facetectomy, foraminotomy and/or excision of herniated intervertebral disc; 1 interspace, lumbar, L4-5
63035-59 ($9,844 paid at $2,312.81) Laminotomy (hemilaminectomy), with decompression of nerve root(s), including partial facetectomy, foraminotomy and/or excision of herniated intervertebral disc; each additional interspace, cervical or lumbar (List separately in addition to code for primary
procedure), L5-S1
CPT 22612 ($38,622 paid at $4,395) Arthrodesis, posterior or posterolateral technique, single level; lumbar (with lateral transverse technique, when performed).
CPT 22614 ($10, 905 x 2 paid $0) Arthrodesis, posterior or posterolateral technique, single level; each additional vertebral segment (List separately in addition to code for primary procedure)
CPT 38230 ($4,408 paid at $714.35) Bone marrow harvesting.
CPT 20926 ($2,682.00 paid at $2,010.30) Tissue grafts, other (eg, paratenon, fat, dermis). CPT 20936 ($1,877 paid at $1,214.01) Harvesting, local bone, Autograft ($1,700)
CPT 20937 ($2,502 paid at $1,557.96) Autograft for spine surgery only (includes harvesting the graft); morselized (through separate skin or fascial incision) (List separately in addition to code for primary procedure).
CPT 77002-26 ($4123 paid at $90.75) Fluoroscopy (paid at the fee schedule)
It is noted that claimant acknowledges no reimbursement is owed for the charge of CPT 77002-26. The respondent supplies an EOB as to the payment of the office visit on 6/3/10 such no further amount is due and owing.
Medical necessity is not truly at issue as the IME did approve lumbar spine surgery. However, the IME physician did address coding and need for certain codes billed.
In particular, the IME addendum advised the following:
“I am in review of the operative report. The billing should be as follows-It can be either 63047 (L3-4) and 63048 (L4-5 and L5-S1) OR 63030-59, 63035-59, 63047 for discectomy levels and above level. Cannot bill both at the same level/interspace. Either of these two options are billed with 22612-51, 22614 times 2, 20936, 20937, 38229 and 69990. These are based according to the American Association of Neurosurgical Guidelines.”
It is noted that respondent failed to pay CPT 22614 as recommended. These codes (2) should be paid per the IME physician. Dr. Glass performed an appeal review but nothing additional is added to the denial of the codes at issue.
Claimant asserts it is owed an additional $159,391.88. The surgeon was paid $28,321.77 for the surgery on 8/30/10. The PA who assisted would be entitled to 17% of the primary surgeon’s fees or $27,537.71 per claimant. The PA was paid a total of $4,361.21.
To further support the payments made, respondent supplies an Audit.
In particular, the Audit and EOB as to the PA notes that 20926 and 20936 were not billed by the assistant.
Further, the Audit and EOBs note “option 2” was paid. In addition, respondent notes that the codes are not on the Fee Schedule and applied usual and customary reductions to the charges. The multiple procedure reduction formula was applied to CPT 63030-59, 38230 and CPT 22612. Claimant does not challenge the MPR to these codes or 50% reduction. However, claimant provides the modifier-51
exempt list for codes: 20926, 20936, 20937, 222614, 63035, 63048 and 69990. It does not appear the reduction was applied to these codes per the EOBs.
N.J.A.C. 11:3-29.4(f) states that
The following shall apply to multiple and bilateral surgeries (CPT 10000 through 69999), co-surgeries and assistant surgeons:
1. For multiple surgeries, rank the surgical procedures in descending order by the
fee amount, using the fee schedule or UCR as appropriate. The highest valued procedure is reimbursed at 100 percent of the eligible charge. Additional procedures are reported with the modifier “-51” and are reimbursed at 50 percent of the eligible charge. If any of the multiple surgeries are bilateral surgeries using the modifier “-50,” consider the bilateral procedure at 150 percent as one payment amount, rank this with the remaining procedures, and apply the
appropriate multiple surgery reductions.
2. There are two types of procedures that are exempt from the multiple procedure reduction. Codes in CPT that have the note, “Modifier -51 exempt” shall be reimbursed at 100 percent of the eligible charge. In addition, some related procedures are commonly carried out in addition to the primary procedure. These procedure codes contain a specific descriptor that includes the words, “each additional” or “list separately in addition to the primary procedure.” These add-on codes cannot be reported as stand-alone codes but when reported with the primary procedure are not subject to the 50 percent multiple procedure reduction.
…
4. For surgeries, each surgeon bills for the procedure with a modifier “-62”. For co-surgeries (modifier 62), the fee schedule amount applicable to the payment for each co-surgeon is 62.5 percent of the eligible charge.
5. The eligible charge for medically necessary assistant surgeon expenses shall be 20 percent of the primary physician's allowable fee determined pursuant to the fee schedule and rules. Assistant surgeon expenses shall be reported using modifier -80, -81 or -82 as designated in CPT. When the assistant surgeon is someone other than a physician surgeon, the
reimbursement shall not exceed 85 percent of the amount that would have been reimbursed had a physician surgeon provided the service. Non-physician assistant surgeon services shall be reported using modifier-AS.
6. The necessity for co-surgeons and assistant surgeons for an operation shall be determined by reference to authorities such as the Medicare physician fee schedule database (www.cms.gov). Fees for assistant surgeons and co-surgeons are not rendered eligible for reimbursement simply because it is the policy of a provider or an ASC that one be present Claimant notes that included codes or permitted pairings of codes for reimbursement is addressed by the NCCI edits and CMS, not the American Association of Neurosurgical Guidelines.
NCCI edits are coding methodologies created by the Centers for Medicare and Medicaid Services (CMS) to instill correct coding guidelines as to coding combinations reported on claims with CPT and HCPCS Level II codes. Certain codes are not paid separately when billed with other codes except under certain circumstances. These guidelines are incorporated to the New Jersey regulations addressing coding/billing.
N.J.A.C. 11:3-29.4(g), as in effect for the services in question, states that "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.kov/NationalCorrectCodIniEed/.”
Certain coding edits are found in a column format. One first looks to the Column 1 code (referred Comprehensive) and then to Column 2 (referred Component) NCCI column edits, to decide whether CPT and/or HCPCS codes billed/coded together by the same physician for the same patient on the same date of service are eligible for separate reimbursement. Each NCCI edit has an assigned indicator (meaning the last column or column 3) that decides whether the various codes may be reimbursed separately when provided on the same date.
Modifiers may be appended to HCPCS/CPT codes only if the clinical circumstances justify the use of the modifier. A modifier should not be appended to a HCPCS/CPT code solely to by-pass an NCCI edit if the clinical circumstances do not justify its use.
Within column 3, an indicator of "0" indicates that allowable NCCI-associated modifiers cannot be used to bypass the edit. Thus, it is not possible to obtain reimbursement for both codes billed by the provider on the same date in any circumstance.
An indicator of "1" means that a correctly coded and the use of modifier -59 or other approved modifiers (such as modifier-25) can be used to allow submitted services or procedures. Thus, the provider may be reimbursed for both codes if billed with the modifier and that modifier is supported as appropriate in the records.
An indicator of "9" indicates that the edit has been deleted, and the modifier indicator is not relevant. As to CPT 63030, claimant supplies NCCI materials that support the primary code CPT 63047 (highest value procedure) in column 1 lists CPT 63030 in column 2 with an inidcator of “1” and thus, requiring a modifier. This would be the same for CPT 63048 and the corresponding additioanl level of 63035. Modifier-59 was billed with both codes to support the billing of both codes. Claimant notes that the medical circumsatnces of the patient warranted the billing of both codes in this patient. The surgon testified as to the basis for the separate billing. Normally, the surgeon would not be requried to bill all codes billid in this case, but the patient had numoerous disc abnormalities requiring distinct procedures. CPT 63030 and 63035 address disc “interspace” and hence only 2 units were billed for the L4-5 and L5-S1inter body discectomy with reomval of the disc. 63047 and 63048 address single vertebral segments and hence L3, L4, L5 and S1 are billed separately to encompass the laminectomy and formainotomy. The patient had disc herniations requiring actual discetomites with disc removal to be perfomed in addition to the stenosis. As the patient presented with stenosis in addition to the herniated discs, 63047 and 63048 were justifed (as is addressed in the definitions for these codes). It is noted that Dr.
Steinberger does not provide actual billing guidelines and did not have the actual billing showing that a modifier was used. In this case, I find that Dr. Cifelli’s explanation is compelling and is supported by the separate diagnoses and the NCCI note an indicator of “1” meaing that there are clincal circumstances that would allow for separate billing or non-inclusion.
As amended and in effect at the time of the services, N.J.A.C. 11:3-29.4(e) advises that: [T]he insurer's limit of liability for any medical expense benefit for any service or equipment not set forth in or not covered by the fee schedules shall be a reasonable amount considering the fee schedule amount for similar services or equipment in the region where the service or equipment was provided or, in the case of elective services or equipment provided outside the State, the region in which the insured resides. Where the fee schedule does not contain a reference to similar services or equipment as set forth in the preceding sentence, the insurer's limit of liability for any medical expense benefit for any service or equipment not set forth in the fee schedules shall not exceed the usual, customary and reasonable fee.
1. For the purposes of this subchapter, determination of the usual, reasonable and customary fee means that the provider submits to the insurer his or her usual and customary fee. The insurer determines the reasonableness of the provider’s fee by comparison of its experience with that provider and with other providers in the region. The insurer may use national databases of fees, such as those published by Ingenix (www.ingenixonline.com) or Wasserman (http://www.medfees.com/),
for example, to determine the reasonableness of fees for the provider’s geographic region or zip code.
2. All applicable provisions of this section concerning billing and payment apply to fees for services provided outside of New Jersey and to fees that are not on the fee schedule.
Claimant supplies EOBs and Awards relative to the code billed to demonstrate its usual and customary practices. Further, claimant notes that numerous providers bill above the amount paid by the
respondent. The Ingenix Customized Fee Analyzer at 95% would also pay more in certain instances. A billing certification is also supplied to support that the rate charged is the usual and customary rate for the code at issue. Claimant asserts it is has sustained its burden and is owed the balance of its fees and overcome the respondent’s payment analysis.
Respondent is required to prepare an analysis of the provider’s fee(s) to determine whether the fee is usual, customary and reasonable as compared to other providers in the same geographic area “based on its experience.” 24 N.J.R.1348. Respondent supplies no actual database materials or analyses but asserts that it used the Prizm “Connect”” database to determine the figures presented. It is unclear whether this is a national database and no specific analysis is presented. Respondent also supplies the Wasserman/PFR calculation. Certain codes were paid below these figures, but most were paid above. In the case of In Re Adoption of N.J.A.C. 11:3-29 by the State of New Jersey, Dept. of Banking & Ins., 410 N.J. Super. 6, 48-55 (App. Div. 2009), the Appellate Division ratified the amendments to the regulation establishing an effective date of 8/10/09 for the revised fee schedules. Ingenix was enjoined from use until the Department was able to review the credibility of the database based on concerns as to the possibility that Ingenix skewed its results to suggest a reduction in fee reimbursement.
The Department’s Order A10-113 noted its analysis and favorable determination as to the use of Ingenix. That Order noted that the Appellate Division accepted its use of the rates paid by automobile insurers in its fee schedule analysis. In re Adoption, supra, at 38-39.
In upholding the regulations and fee schedules, the Appellate Division noted the following: The proposed rule conforms to Cobo. Under N.J.A.C. 11:3- 29.4(e)(1), the provider submits his or her usual and customary fee. The insurer then determines the
reasonableness of the fee. That is no different than the procedure in Cobo. The new provision allows the insurer to consult with a national database for help in determining the reasonableness of the fee. Such a procedure will provide more protection against arbitrary determinations to the providers. Nevertheless, if a provider disagrees with the insurer's determination, the provider has the option of filing for arbitration. N.J.S.A. 39:6A-5.1. There is accountability and meaningful review.
In re Adoption, supra.
Thus, the Appellate Division essentially affirmed Cobo but made clear that it is the insurer’s
responsibility to assess reasonableness and agreed that databases may be used in that process. Further, the Court considered the newly ratified Fee Schedule as “reasonable” given that the Department had made “considered and informed judgments” in developing its rules and comprehensive fee schedules. However, the Court also noted that it was not “an exact science.”
The Court confirmed that the 75Th percentile applies to the Department’s analysis for preparing a fee schedule but is not applicable in the UCR determinations made by a carrier. Medicare values were not even considered an accurate value by DOBI without a multiplier (not utilized in this case) and that a more accurate determination was based upon actual rates paid by automobile insurers. Id.
The Department recently issued a Bulletin relative to the UCR determinations being made in the arbitration system. Bulletin Number 10-30 advises that national databases are clearly allowable as a means for an insurer to address the reasonableness of the provider’s fees. However, the claimant must first show that its fee is usual and customary. It is noted that both respondent and claimant rely upon separate recognized databases (Ingenix and Wasserman) that show significantly different rates of reimbursement. In that respondent’s own calculations exceed Wasserman, the credibility of these numbers is questionable.
As to CPT 63030, 63035, 63047, 63048, 22612 and 22614 the provider bills in excess of what several other providers bill and was often paid less than the billed rate. Ingenix, however, would support a much higher rate of reimbursement than paid by respondent and supports many of the charges of the claimant in this case. As noted, multiple databases can be utilized to support charges billed and/or paid. The database used by respondent is not in evidence and the disparity as between Wasserman and Ingenix is noted. In this case, based on my review of all the evidence, I find $25,000 is an appropriate UCR for CPT 63030; $8,000 for CPT 63035; $29,000 for CPT 63047; $8,300 x 3 for CPT 63048; $26,000 for CPT 22612 and $8,000 for CPT 22614 x 2. As noted, CPT 63030-59 and 22612 are reduced by 50% per the MPRF.
The provider’s billing exceeds Ingenix at 95% for CPT codes 20926 , 20936, and 20937 and the provider was often paid less than billed in this case. Respondent’s payments were well below Ingenix for CPT 20937 and 20936. Payment as to CPT 20926 was not as disparate. As such, I find adequate reimbursement was paid for CPT code 20926 ($2,078). However, in reviewing all the evidence, I find the appropriate rate of reimbursement for CPT 20937 to be $1,400 and $1,300 for CPT 20936.
As to CPT 38230, the provider was paid in full on numerous occasions and several other providers bill (and were reimbursed) well above what was paid by the respondent. As such, I find that the provider is owed an additional ($2,204 less $714.35) $1,489.65 after considering the MPR at 50% and payment made. Respondent’s payment is well below Ingenix and those amounts paid by other insurers. Respondent suggests reimbursement rate for CPT 69990 at $2,037.76. Claimant supplies numerous proofs supporting the charge of $4,000 as usual, customary and reasonable. Payment was consistently made in full. The code is not subject to MPR as noted by respondent. I find claimant is entitled to a UCR of $3,000 for this code considering all the evidence. Respondent’s consideration at the 75th percentile was rejected by the Court. However, claimant supplies no database materials to support the full charge in this case.
The provider should have been paid $114,282.00. Thus, a balance of $86,050.23 is owed.
A physician’s assistant was used in connection with the procedure and per N.J.A.C. 11:3-29.4(f)(5), she is entitled to 17% of the fee schedule or UCR. The operative report notes the PA was involved in each procedure and did not bill for CPT 20926 or 20936. Respondent asserts that the PA was not needed for CPT 38230 (bone marrow harvesting), but paid this charge. The PA however asserts that the harvesting was properly billed and her involvement is reflected. CMS dictates the appropriateness of assistance during procedures under N.J.A.C. 11:3-29.4(f)(6). Respondent supplies no coding support per CMS as to its position in this case. As such, I find that the PA is entitled to be paid for CPT 38230.
The PA would be owed $18,853.68 based on 17% of the total amount payable to Dr. Cifelli (surgeon) less codes CPT 20926 and 20936 ($110,904). Thus, taking into account payment made, the PA is owed a balance of $14,492.47.
These amounts are subject to the policy limit of $250,000 as well as any remaining co-payment and deductible.
I find that the claimant to be a prevailing party and I award attorney’s fees and costs. In determining the proper amount of fees, "the most useful starting point . . . is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. Super. 144, 157 (App. Div. 1996). The fees awarded are in conformity with
guidelines/factors set forth in R.P.C. 1.5. Depending on the evaluation of these factors, the fact finder is given discretion to adjust the fees upward or downward in its discretion. Id. at 158, 160; see Enright v. Lubow, 215 N.J. Super. 306 (App. Div. 1987); Scullion v. State Farm Ins. Co.,.345 N.J. Super. 431, 437-38 (App. Div. 2001).
Having reviewed the Certification of Services submitted by claimant and considered the opposition of respondent; I award $1,800 in fees and $230 in filing costs. This represents a reduction in the hours billed based on respondent's arguments. Specifically, consideration has been given, but not limited to, the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the fees customarily charged in the locality for similar legal services, the amount involved and the results obtained, as well as the experience, reputation and ability of the lawyer performing the service. Claimant's counsel has considerable experience in this area. This matter involved an
made. Claimant was required to perform a very detailed analysis in this matter. Thus, based on the issues and preparation involved, the fees are appropriate.
Interest is mandatory on overdue claims. N.J.S.A. 39:6A-5(h). Respondent is to calculate interest upon payment per its receipt of the bills and statutorily mandated rates.
Therefore, the DRP ORDERS:
Disposition of Claims Submitted
1. Medical Expense Benefits: Awarded:
Medical Provider Amount Claimed Amount Awarded Payable To
Neurosurgical Spine Specialists (Cifelli) $159,391.88 $86,050.23. Neurosurgical Spine Specialists Neurosurgical Spine Specialists (PA Bodie) $27,537.71 $14,492.47. Neurosurgical Spine Specialists
Subject to co-payment, deductible and the policy limit of $250,000. 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.: Respondent is to calculate interest upon payment per its receipt of the bills and statutorily mandated rates.
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:
THIS AWARD is rendered in full satisfaction of all claims and issues presented in the arbitration proceeding.
Entered in the State of New Jersey
