Callagy Law Arizona: December 2015

Tuesday, December 29, 2015

A Closer Look into Bundling & PIP Regulations | Callagy Law

The Bucket 4 “Carve Out”

After searching various sources, we have found many people have questions when it comes to Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law and medical revenue recovery. Our mission is to answer any questions and give knowledge to many different aspects of these matters

This blog is a little bit “inside baseball,” in that it’s a hyper technical explanation look at a concept in the world of bundling. If you’re a PIP practitioner, however, or deal with ASCs and Hospitals, this is an important concept that could lead to a much larger amount of recovery/reimbursement for ASCs or Hospitals

When DOBI updated the PIP regulations (effective 1/4/13) the update included a new section on the “bundling” of outpatient surgical services. Specifically, N.J.A.C. 11:3-29.5(a)(1-8) and N.J.A.C. 11:3-29.5(b) (which incorporates (a)(1-8)) inform providers and carriers which services are considered “bundled” and are not separately reimbursable.

The code, in relevant part, reads as follows:

11:3-29.5 Outpatient surgical facility fees

ASC facility fees are listed in Appendix, Exhibit 1, by CPT code. Codes that do not have an amount in the ASC facility fee column are not reimbursable if performed in an ASC. The ASC facility fee include services that would be covered if the services were furnished in a hospital on an inpatient or outpatient basis, including:

Use of operating and recovery rooms, patient preparation areas, waiting rooms, and other areas used by the patient or offered for use to persons accompanying the patient;

All services and procedures in connection with covered procedures furnished by nurses, technical personnel and others involved in the patient’s care;

Drugs, biologicals, surgical dressings, supplies, splints, casts, appliances, and equipment;

Diagnostic and therapeutic items and service. Appendix, Exhibit 1 indicates those CPT codes that, according to Medicare (see: www.cms.gov/ASCPayment/ASCRN/list.asp, CMS-1504-FC, Exhibit AA), are considered ancillary services that are integral to surgical procedures and are not permitted to be reimbursed separately in an ASC. Appendix, Exhibit 7 indicates those services that, according to Medicare are considered ancillary services that according to Medicare (see: https://www.cms.gov/HospitalOutpatientPPS/Downloads/CMS1506FC_Addendum_

D1.pdf) are integral to surgical procedures and are not permitted to be reimbursed separately in a HOSF;

Administrative, recordkeeping, and housekeeping items and services;

Blood, blood plasma, platelets, etc.;

Anesthesia materials, including the anesthetic itself, and any materials, whether disposable or re-usable, necessary for its administration; and

Implantable DME and prosthetics.

(b) HOSF fees are listed on subchapter Appendix, Exhibit 7 by CPT code. The hospital outpatient surgical facility fee is the maximum that can be reimbursed for outpatient procedures performed in an HOSF. The hospital outpatient facility fees in Appendix Exhibit 7 include services that would be covered if furnished in a hospital on an inpatient basis, including those set forth in (a)1 through (8) above.

(a)(1-8), which I’ll colloquially refer to as the “8 buckets,” essentially states that each bucket is included in the main surgical procedure that was performed in the ASC or Hospital on that particular date of service, and that the type of service described by that bucket is not separately reimbursable, since DOBI has already included reimbursement for such services in the price of the ain surgical code on the appropriate fee schedule.

There is a catch, however. N.J.A.C. 11:3-29.5(a)(4) states:

Diagnostic and therapeutic items and service.

Appendix, Exhibit 1 indicates those CPT codes that, according to Medicare … are considered ancillary services that are integral to surgical procedures and are not permitted to be reimbursed separately in an ASC.

Appendix, Exhibit 7 indicates those services that, according to Medicare are considered ancillary services that according to Medicare… are integral to surgical procedures and are not permitted to be reimbursed separately in a HOSF;

Callagy Law’s PIP attorneys have been successful in arguing that bucket 4 actually is actually a “carve out,” and should be read and interpreted differently than the other 7 buckets. Our attorneys argue that bucket 4 requires a carrier to not simply state that all diagnostic and therapeutic items and services are automatically included in the main surgical procedure; rather, the carrier must first identify the diagnostic and therapeutic items and services and then proceed to the appropriate fee schedule (Exhibit 1 for ASCs, and Exhibit 7 for Hospitals) to determine whether those services are, in fact, bundled.

There is an entire column in Exhibit 7 (The Hospital Outpatient Surgical Facility Fee Schedule – “HOSF”), for example, titled “Packaged Item; No Separate Payment.” Our argument is that DOBI is directing providers and carriers to examine Exhibit 7 to see whether the particular diagnostic/therapeutic services being provided in a particular case are marked as bundled. (see screenshot of Exhibit 7 below)

Many diagnostic/therapeutic codes on the HOSF do have indicators in the column meaning that they are bundled, but many codes either have no indicator, or do not appear on the HOSF at all. In those cases, it is the position of the Callagy Law PIP attorneys that the diagnostic/therapeutic codes ARE entitled to separate reimbursement.

These diagnostic/therapeutic codes often add up to hundreds or thousands of dollars in a particular outpatient surgery, and so mastery of this concept can mean a great deal of additional recoverable money for a particular provider. This position has been successful with several arbitrators, and the wave of momentum for this argument only seems to be growing stronger.

We hope you have found this information helpful and interesting. Please reach out to us here with any questions or comments regarding healthcare legal matters, or if you are a medical provider that has questions regarding Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

Learn More About Callagy Law Here:

A Closer Look into Bundling & PIP Regulations | Callagy Law

Monday, December 28, 2015

Promises and Failure to Perform | Callagy Law

Expanding the legal analysis beyond contract law limitations.

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the business and commercial litigation. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

When most lawyers are given a factual situation that includes a promise, their mind will undoubtedly begin to analyze it as a potential contract. Promises, in the legal world, are tricky things. Most first year law students spend the better part of a semester distinguishing when a promise is an enforceable contract vs. mere banter. As any of those first year law students will (hopefully) be able to tell you by the end of that semester, is that if the promise lacks “consideration” – or something of value (either a promise, an act or an object) that a promisor receives from a promisee in return for his promise – it is generally unenforceable as a contract. While this is a vast oversimplification of centuries of contract law, it is safe to say that issues involving a promise are almost always analyzed under theories of contract.

This tendency to analyze promises under a contract theory leads to several limitations. First, unless the court finds sufficient consideration, any claims arising from the promise will fail. Second, the damages one may recover under a contract theory are usually limited.

In certain situations however, a promise, and the subsequent failure to deliver on that promise, is still actionable. Instead of a contract, though, the promise is actually considered under a “tort” theory, specifically, a claim for fraud. For example, in Arizona, to prevail on a constructive fraud claim, a plaintiff must prove: (1) Defendants had a fiduciary or confidential relationship with Plaintiffs that gave rise to a legal or equitable duty; (2) Defendants breached that duty; (3) the breach tends to deceive others, violates public or private confidences, or injures public interests; and (4) the breach induced detrimental and justifiable reliance.” Dawson v. Withycombe, Provided that the Plaintiff can prove the first three elements, a promise to perform, which is not ultimately fulfilled, can be used to satisfy the fourth element.

It is the general law that to constitute a fraudulent misrepresentation, the representation must be relative to a present or preexisting fact and cannot be based on unfulfilled promises or statements as to future events. Law v. Sidney. However, a promise made without a present intention to perform the promise, is considered to be a matter of fact which exists in the present. Starkovich v. Noye and Ahmed v. Collins. Many states in addition to Arizona provide for recovery under a similar set of facts and circumstances.

As such, a promise which does not meet the formalistic requirements of a contract cause of action can still be used as the basis of a cause of action under a constructive fraud theory. The limitations on damages which are present in a contract cause of action are also replaced by those applicable to a tort theory – which may include punitive damages.

We hope you found the information provided in this article helpful to your everyday life and business. Please free to reach out to Sean Callagy or the Callagy Law team at any time for questions you may have concerning personal and business matters. Callagy Law’s headquarters is located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of business legal practice and business coaching, if you need help with anything, please reach out to us by calling 201-261-1700 or by emailing us here. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube by clicking here.

Learn More About Callagy Law Here:

Promises and Failure to Perform | Callagy Law

Wednesday, December 23, 2015

Why Keep the 40 Hour Work Week | Callagy Law

“A better rested work force is more relaxed, more focused and tackles tasks with a greater degree of creativity.”

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

The 40-hour work week is a staple of American culture. Its origins date back to the mid 19^th century when labor unions attempted but ultimately failed to pass legislation mandating an eight hour work day. In 1869, President Ulysses S. Grant issued a proclamation that guaranteed an eight hour work day for government employees. Grant’s decision encouraged employees of the private sector to fight for the same right. Labor unions organized strikes that sometimes ended in deadly confrontations with the police.

In 1926, the Ford Motor Companies adopted a five day, 40-hour work week. Henry Ford’s motivation for reducing the amount of time his employers worked was purely economical. Ford’s changes increased productivity and profits. Other companies soon followed Ford’s lead. The average hours in the workweek declined for most of the 20^th century. In 1930, economist John Keynes predicted that his grandchildren would have a 15 hour workweek. However, during the 1980s work hours began to increase. Now, the prospect of a 40 hour work week would be welcome news to many. Nearly half of Americans claim to work over 40 hours a week.

However, according to a survey from AtTask conducted by Harris Poll, American employees spend only 45 percent of their time on primary job duties. A large part of the workday is lost answering emails, going to wasteful meetings and general interruptions. Furthermore, studies have shown that longer work hours are associated with higher injury rates. A University of Massachusetts Medical School study showed that jobs with overtime schedules have a 61 percent higher injury hazard rate compared to jobs without overtime. The results suggest that job schedules with long hours are not more dangerous because of an inherent job risk or because they are at risk for a longer time. Rather, it suggests that human error increases with longer hours.

There is a lack of empirical evidence to suggest that longer work hours lead to more productivity. Counter intuitively, evidence suggests that a better rested work force is more relaxed, more focused and tackles tasks with a greater degree of creativity. Additionally, employers could save on the incidental costs of worker injuries and illness caused by longer work hours.

We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $175,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

Learn More About Callagy Law Here:

Why Keep the 40 Hour Work Week | Callagy Law

Tuesday, December 22, 2015

Reimbursement Under New Jersey PIP laws | Callagy Law

When does UCR (the usual, customary and reasonable amount) apply?

The purpose of this post is to help assist healthcare providers and the public with questions they have concerning topics related to Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. The Callagy Law team is knowledgeable in all aspects of these sorts of legal matters and will frequently post topics in this field. We hope to have this article shine a light on many common questions.

Medical providers may wonder why a PIP insurance company pays less than the amount billed. For example, perhaps a north region doctor bills $200.00 for an office visit billed under CPT Code 99214. The PIP insurer reimbursed the doctor $125.71. Is a balance due? The general answer is no, and that is because a medical fee schedule governs the reimbursement for this treatment. Other times, however, there may not be a medical fee schedule at all. What is the standard of reimbursement in that instance?

To determine the proper amount due, a review of the New Jersey PIP reimbursement structure is in order. This discussion concerns reimbursement amounts, not whether PIP benefits apply in the first place. Other issues, such as medical necessity and causality, factor into such right to reimbursement.

As to the amounts due, it must be recognized the Department of Insurance and Banking (“DOBI”) has promulgated many medical fee schedules. These payment schedules cover a variety of types of medical providers, as well as a wide array of CPT Codes. A summary of these fee schedules may be found at http://www.state.nj.us/dobi/pipinfo/aicrapg.htm.

Therefore, the first step is to review the fee schedules listed on the DOBI website and see if the type of medical provider and CPT Code for the treatment is listed. Also, there are times a medical fee schedule may not apply. For example, if a trauma doctor provides trauma services and bills with a –TS modifier, the fee schedule amount will not apply, but rather, a UCR standard applies. N.J.A.C. 11:3-29.2 defines trauma services as follows:

“Trauma services” means the care provided in the Level I or Level II trauma hospital to patients whose arrival requires trauma center activation. It does not include transportation to the hospital, treatment of patients whose arrival at the hospital does not require trauma activation or outpatient visits after a patient who has received trauma care is discharged from acute care.”

What is UCR? UCR is the usual, customary and reasonable amount due for treatment. How is UCR determined? The governing DOBI regulation, N.J.A.C. 11:3-29.4, provides the amount due will be that of a similar code on a medical fee schedule. If there is no similar code, UCR is determined by a process. First, the medical provider submits its customary bill. It is imperative the provider retain exemplar Explanation of Benefits showing the payment received from other payors. The PIP insurer may then determine the reasonableness of the fee by comparing its experiences with that provider and other providers in the region. The PIP carrier may also rely upon national databases of fees to determine the reasonableness of the bill for the provider’s geographic region.

Callagy Law handles many PIP arbitrations in which UCR is a significant issue. Our success generally depends upon the UCR proofs we are able to introduce at hearing. We implore our medical providers to retain copies of exemplar EOBs to show what PIP carriers are reimbursing them for treatment that is not subject to a medical fee schedule. It will help in our ability to obtain proper reimbursement at UCR if we have the supporting documents.

We hope you have found this information helpful and interesting. Please reach out to us here with any questions or comments regarding healthcare legal matters, or if you are a medical provider that has questions regarding Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

Learn More About Callagy Law Here:

Reimbursement Under New Jersey PIP laws | Callagy Law

Friday, December 18, 2015

“You Gotta Believe!” | Positive Thinking | Callagy Law

Why the Slogan Coined by a Mets Relief Pitcher Is Gospel Truth

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

The 1973 New York Mets were having a rough season, and so the Mets chairman of the board addressed the team and told them not to give up. With that, Tug McGraw, the Mets star relief pitcher, stood up and shouted, “That’s right, we can do it. Ya gotta believe!’’ The team won 24 of the next 35 games, winning their Division in the process with barely a .500 record, and then defeated the Big Red Machine, which was the outstanding Cincinnati Red team of the 1970’s, for the National League Pennant. The Mets then came within one game of winning the World Series, losing in seven games against a phenomenal Oakland A’s team, headed by Hall-of-Famer Reggie Jackson. Such is the Power of Positive Thinking.

The Power of Positive Thinking is a mental and emotional attitude that focuses on the bright side of life and expects positive results. It is not a reality for everyone. Some consider it nonsense, and scoff at people who believe in it, but there is a growing number of people, who accept Positive Thinking’s Power as a fact, and believe in its effectiveness. To use it in your life, you need more than just to be aware of its existence. You need to adopt the attitude of positive thinking in everything you do. You need to be in the mindset that says, unequivocally and without hesitation, “I can and I will succeed at this.”

With a positive attitude, we experience pleasant and happy feelings. This brings a brightness and a sparkle to the eyes, increased energy, and confidence. Your whole being broadcasts good will, happiness and success. Even physical health is affected in a beneficial way. You walk taller, your voice is more assertive and powerful, and your body language expresses all this. When you are positive and sincerely believing in its power, you make everyone else around you feel the same way.

I do my best to bring this to the job of client liaison at Callagy Law, a job that entails interacting with medical providers to identify and assemble medical claims against insurance carriers for arbitration and litigation. These clients span the whole spectrum of medical providers—from hospitals and surgery centers to surgeons and chiropractors, from imaging centers to pharmacies—and the claims span the gamut of medical providers claims—PIP, Workers Compensation and Commercial Insurance. This Power of Positive Thinking is present everywhere and in everything we do at Callagy Law, and it should be an integral part of everyone’s personal and professional lives.

We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $175,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

Learn More About Callagy Law Here:

“You Gotta Believe!” | Positive Thinking | Callagy Law

Thursday, December 17, 2015

Uber-Important: Employee Contracts! | Callagy Law

The Difference between an Employee and an Independent Contractor and its Legal Ramifications

The following article was written by Samuel S. Saltman from Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the business and commercial litigation. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

Uber is finding out the hard way that formal written employment contracts are … uber important.

The booming ridesharing company has lost recent legal battles over the classification of its drivers as either employees or independent contractors. The drivers sued for, among other things, unemployment benefits and outstanding business expenses. In these cases, whether Uber drivers are classified as employees or independent contractors makes all the difference: If the former, they are entitled to the compensation they seek; if the latter, nothing.

Clearly, the law treats employees much better than it treats independent contractors. Unlike independent contractors, employees are covered by a multitude of state and federal laws, including minimum wage, overtime, antidiscrimination, workers’ compensation benefits, and, of course, business expenses and unemployment benefits. There are also significant tax withholding differences between the two.

So what distinguishes an employee from an independent contractor? While there is no bright-line rule, courts focus on a variety of factors, including:

whether the worker can earn a profit or suffer a loss from the work (if so, more likely an independent contractor);

whether the worker earns a wage or is paid per job/project (if the former, more likely an employee; if the latter, independent contractor);

whether the worker invests in equipment (if so, more likely an independent contractor); and

whether the worker provides services that are integral to the company’s day-to-day operations (if so, more likely an employee).

From a company’s perspective, both classifications have pros and cons. For Uber, having to pay, for example, overtime and worker’s compensation benefits to its thousands of drivers across the country is clearly an expense inimical to its business model – or so it thinks. But Uber does exert significant control over its drivers in the form of sole discretion over fares, the right to charge drivers a cancellation fee if they reject a passenger, prohibitions against picking up passengers without using the Uber app, and the right to suspend or deactivate drivers’ accounts. Uber drivers appear to be telling their “employer” – you can’t have our cars and drive them too.

Despite the recent Uber driver victories, states across the nation are split on the issue of their classification. Georgia, Pennsylvania, Colorado, Indiana, Texas, New York, Illinois, and California have found them to be independent contractors, although a recent case in California is challenging that. The lesson to be learned here is that whatever classification you decide is right for your business model, it’s best to put the terms of employment into a formal written agreement signed by the worker.

Even written agreements, however, are not fail-proof. The actual circumstances of the relationship matters more. Of course, a carefully worded written employment agreement should dictate those circumstances and will strongly support the company’s position in court. At Callagy Law, we have years of experience drafting such agreements and enforcing them in court, and can advise you every step of the way to ensure that you and your workers have an uber-clear understanding of your relationship.

We hope you found the information provided in this article helpful to your everyday life and business. Please free to reach out to Sean Callagy or the Callagy Law team at any time for questions you may have concerning personal and business matters. Callagy Law’s headquarters is located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of business legal practice and business coaching, if you need help with anything, please reach out to us by calling 201-261-1700 or by emailing us here. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube by clicking here.

Learn More About Callagy Law Here:

Uber-Important: Employee Contracts! | Callagy Law

Wednesday, December 16, 2015

Must Know Info For Medical Providers | Callagy Law

Providers Making The Most Out of Recovery

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

Medical Providers are busy people, as are their patients. Doctors are (and should be) more preoccupied with treating their patients and increasing the quality of their lives, rather than dealing with administrative paperwork. That is why medical providers rely upon their office staff for assistance. In the hustle and bustle of day to day treatment of patients, some doctors pay less and less attention to the underlying business aspects of their practice. However, it is important that medical providers themselves stay informed as to how to optimally recover money for the treatment and procedures they provide.

Insurance carriers will deny a claim for many reasons – need for additional records, amended bills, etc. It could take over a year in some cases for a medical provider to be reimbursed. Obviously, this has a detrimental impact on a medical providers’ expected cash flow.

So what can a medical provider do to overcome these denials and delays? A medical provider should be aware which procedures are covered by the patient’s insurance policy. More information is also available on http://www.cms.gov and/or on the insurance carrier’s website. For instance, Medicare makes payment for an assistant at surgery when the procedure is authorized for an assistant and the person performing the service is a physician, physician assistant, nurse practitioner or clinical nurse specialist. A medical provider should try to get pre-authorization from the insurance carrier, while also being mindful of other denial issues, such as a perceived lack of medical necessity.

If a medical provider wants to proceed on a non-covered procedure, they should be aware in advance that the insurance carrier will deny payment. If a medical provider is considering charging the patient, they should be sure to have an agreement with the patient in writing prior to surgery. Billing after surgery is not always the best business policy for medical providers and may even be in violation of a contract if they are in-network with particular insurance carriers. Moreover, balance billing the patient in most cases is not permitted in PIP (Personal Injury Protection) and Medical Provider Workers’ Compensation claims.

The medical provider should specific services he or she performs in its operative report, ensuring that every CPT code in the bill correlates with the operative report. Insurance carriers will usually reference the operative report to confirm this information and will sometimes request the assistant surgeon’s medical records. A medical provider should be prepared to get involved and file multiple appeals in order to be reimbursed.

However, the most important step in the entire process occurs in the pre-surgery stage– don’t be afraid to communicate with the insurance carriers about what documents and information they need to efficiently and effectively process the claim, what procedures are authorized, and what is the expected reimbursement rate. Be sure to thoroughly document these conversations, or better yet, get it in writing.

Of course, it is very important to hire a law firm to review claims, handle appeals and proceed to litigation, as doctors are very busy with treating their patients – which is what matters most.

Learn More About Callagy Law Here:

Must Know Info For Medical Providers | Callagy Law

Tuesday, December 15, 2015

Pregnancy; What You Could Be Entitled To | Callagy Law

Pregnant Women may be Entitled to Additional Conservative Care under the New Jersey No-Fault Care Paths

Written By: Mark H. Winters, Jr., Callagy Law paralegal

Pregnancy can be difficult, and under even normal conditions presents a challenge to the physical comfort and well-being of the mother. After being involved in a motor vehicle accident, these issues may be exacerbated even further.

However, while PIP Insurance often seeks to limit the length and extent of conservative care provided to pregnant women, pregnancy may be considered a complicating factor, or “co-morbidity,” which could warrant additional treatment, and the extent of insurance coverage for additional related services. Conservative care includes chiropractic treatment and physical therapy.

Even in circumstances following the birth of a child, the mother’s condition could have an effect on the requirements to adhere to the NJ Care Paths.

Specifically, Care Paths are recommended extensive courses of care, which identify typical courses of treatment. However, there may be patients who require more or less treatment. Such deviations may be justified by individual circumstances, such as pre-existing conditions and co-morbidities. Indeed, pregnancy may qualify as a co-morbidity.

In this regard, the Care Paths encourage result- oriented medical treatment practices, and, women with regard to back pain, “it is well established that physical therapy and TENS are among the most effective courses of care.” (Diaz, Robert Rivero, et.al, 2012, Colombian Journal of Anesthesiology).

While no treatment is 100% effective, the combination of standard prenatal care together with exercise generally leads to a slight reduction in the pain and discomfort reported by the patients. However, it is particularly relevant [that] pain generally worsens as gestation advances.” (Diaz, 2012) These conditions clearly constitute traumatic injury as both an exacerbation of pre-existing discomfort, and as a co-morbid hindrance in responding to treatment.

Many insurance carriers attempt to terminate a woman’s conservative care coverage based upon the adage that she should instead seek interventional pain management treatment. However, pregnant women are not typically even eligible for most modalities of pain management relief. In fact, “[w]hen pregnancy is suspected, the first thing to do is to minimize the use of drugs and optimize non-pharmacological therapies.” (Diaz, 2012).

In fact, the use of pain management substances “must be avoided in the first trimester because of the risk of miscarriage, and during the second and the third trimester because of the risk of oligohydramnios or premature closure of the ductus with an effect on fetal circulation.” (Diaz, 2012).

Therefore, the ideal measure(s) of treatment of chronic back pain in women who are pregnant are conditioning exercises, massage performed by a physician or licensed provider, and TENS for localized pain, as it has no adverse effect on the fetus). (Diaz, 2012).

During pregnancy, the possibility of an extended conservative treatment plan is appropriate for pregnant women, and a blanket denial of coverage due to divergence from the Care Paths is improper.

Finally, when a pregnant woman is unable to proceed with the next level of care, but does experience relief of pain with conservative treatment, under PIP regulations, this type of “palliative care” is covered by insurance, based on the mere fact that in this situation, the goal of treatment is to alleviate pain until the patient is eligible for other treatments.

Source(s):

(Management of non-obstetric pain during pregnancy, Roberto Rivero Diaz, et.al, Colombian Journal of Anesthesiology. Vol 40. August 3, 2012.)

The Team at Callagy Law hopes the information in this article was helpful in either your personal or professional life. The legal world pertains to all walks of life and more specifically, various types of healthcare providers. Callagy Law, is a multidisciplinary law firm, headquartered in Paramus, NJ owned and operated by Sean Callagy. We are committed to providing legal representation and advice to our clients at additional law offices located across the United States. Please note that the information posted here should not be used as a legal argument of defense. If you find yourself needing legal advice pertaining to your unique situation, you can contact us at here. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

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Pregnancy; What You Could Be Entitled To | Callagy Law

Monday, December 14, 2015

Be Quick But Don"t Hurry | Callagy Law

Service of Process Pitfalls

One of my favorite quotes is, “Be quick but don’t hurry,” John Wooden. In a fast-paced litigation practice, being quick is less of a guideline and more of a mantra. Being quick, however, has the unfortunate side effect of significantly increasing your risk of mistakes. This is especially common in processes that are (or should be) automatic, such as engaging in service of process. “Service of process” is the procedure by which a party to a lawsuit initiates a legal action and allows the appropriate judicial or administrative body to exercise its power or jurisdiction over the other party or parties to the litigation. Generally, service of process is accomplished by “personal” service, which is hand-delivering the documents to the named party or other appropriate representative. Service can also be accomplished through alternative means such as delivering a copy of the legal documents to the person’s last known address.

Fortunately, each State and the Federal Courts provide the basis for performing proper service, alternative mechanism and explanations on how to ensure you do not improperly serve documents. As such, in order to go quick but avoid mistakes, it is best to always start with a review of the rule. For example, in the New York Supreme Court, the rule for service can be found at Rule 308 of the Civil Practice Law & Rules. In the New Jersey Superior Court, the Rule can be found at Rule 1.5-1 of the New Jersey Rules of Court. In the Federal Court District Court, the rule can be found at Rule 5 of the Federal Rules of Civil Procedure.

Whether you are an attorney practicing for 25 years or a pro se litigant, it is important to always start with the rules, especially since they can change. In fact, in 2015, the Federal Rules of Civil Procedure were amended to change the time limit for Service from 120 days to 90 days. If the last time you reviewed the Rule was in 2014, you may be in for a painful lesson if you perform service on the 91st day after filing of a Complaint in Federal Court.

A failure to properly perform service could delay the initiation of litigation or, worse, result in the dismissal of the entire legal proceeding. This is one of those areas where hurrying can be fatal. To be quick, you have to be organized and have a strong process in place to ensure that service is being performed correctly and expeditiously. Without a process and proper oversight, you risk exposing your clients and yourself to serious consequences.

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Be Quick But Don"t Hurry | Callagy Law

Momentum Monday! | Why Not with Sean Callagy #31

#MomentumMonday | Why Not?!

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Momentum Monday! | Why Not with Sean Callagy #31

Friday, December 11, 2015

Carrier Underpayments in PIP Claims | Callagy Law

Important Information Regarding Carrier Underpayments in Personal Injury Protection Claims

The purpose of this post is to help assist healthcare providers and owners with questions they have concerning their business or relevant knowledge in the field. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.

Do you have the proper information regarding carrier underpayments? Everyone is generally familiar with payment denials in PIP. They are usually for some form of lack of medical necessity—IME Denial, MDR Denial, Maximum Medical Improvement has been reached—or some shortcoming on the part of the patient–Lack of Eligibility or Failure to Cooperate. But there are also many reasons why carriers might unreasonably underpay claims that are sometimes more difficult to detect. Some of these reasons are discussed below.

21-Day Notification. Medical providers must notify PIP carriers that they are treating a patient injured in a motor vehicle accident (MVA) within 21 days following the commencement of treatment. If not, the insurance carrier can apply payment reductions in the following manner:

22 to 30 days after the commencement of treatment: 10 percent reduction.

31 to 60 days after the commencement of treatment: 25 percent reduction.

61 to 120 days after the commencement of treatment: 50 percent reduction.

121 to 160 days after the commencement of treatment: 75 percent reduction.

161 or more days from the commencement of treatment: 100 percent reduction.

New Jersey Administrative Code 11:3-25.

If the services were performed in an emergency context, the carrier cannot apply these reductions. It is important to understand these regulations so that PIP carriers are not unduly penalizing your practice.

Pre-certification Penalties. These reductions are fairly common. Medical products and services are required to be pre-certified when performed on a patient injured in an MVA, and a pre-certification denial must be appealed in a timely fashion to avoid a pre-certification penalty. These requests and appeals should be done immediately and a provider needs to make sure they obtain and retain proof that pre-certifications were sent and received. If not done properly and in a timely manner, the provider might have to suffer a 50% payment penalty.

Fee Schedule Payments. Reimbursements for PIP claims in the State of New Jersey are governed by a state-mandated fee schedule. This does not mean that PIP claims paid “according to the fee schedule” are always paid at the correct amounts. First of all, not all codes are on the fee schedule, which can generate controversy as to the appropriate reimbursement amount. There are also disputes as to what codes might or might not be separately reimbursable, and under what circumstances. There are multiple procedure reductions that sometimes are misapplied. And there are flat-out mistakes, as where a carrier pays an ASC the physician rate or vice versa. Any payment which seems inconsistent with amounts set forth on the fee schedule should be closely scrutinized.

Downcoding. Another reason underpayments occur is down coding. Because there are levels of complexity with things like office visits—some visits requiring more time for effective evaluation than others—there can be debate as to the correct level of reimbursement. Downcoding occurs when the carrier believes a lower level of payment is called for than the level billed, so they will pay at the lower-level CPT Code.

This is not an exhaustive list of why underpayments can occur, but it is some of the more common ones.

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Carrier Underpayments in PIP Claims | Callagy Law

Thursday, December 10, 2015

The Obergefell Effect | Callagy Law

HHS Issues Guidance Letter to States on Eligibility for Medicaid and CHIP Benefits Following the Supreme Court’s Landmark Gay Marriage Decision

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law and litigation. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

On June 26, 2015, the Supreme Court rendered its decision in Obergefell v. Hodges, holding that the fundamental right to marry constitutionally extends to same-sex couples. The landmark decision immediately emitted political and social shockwaves. The next day same-sex marriage was legal throughout the nation. But only now are the subtler legal consequences beginning to manifest themselves.

Just this week, the Department of Health and Human Services (HHS) issued a guidance letter to state health officials, and state Medicaid directors in particular, explaining how the Obergefell decision would affect their policies and systems related to Medicaid and the Children’s Health Insurance Program (CHIP).

It was only a year ago that another major decision – U.S. v. Windsor – forced the HHS to issue guidance letters that had states scrambling to meet the legal requirements of America’s ever-evanescent legal landscape. That decision struck down section 3 of the Defense of Marriage Act which had mandated that the definition of the words “marriage” or “spouse” found anywhere in any federal statute or regulation be limited to a legal union between two individuals of the opposite sex. Under the so-called Windsor guidance, states were still free to determine their choice-of-law rules relating to the recognition of same-sex marriages for purposes of Medicaid and CHIP eligibility.

The Windsor guidance “is no longer operative,” according to the HHS. “In accordance with the Obergefell decision, Medicaid and CHIP agencies must now recognize marriages between same-sex couples to the same extent as marriages between opposite-sex couples, and must afford the same rights and responsibilities to spouses in such marriages, regardless of where the marriage was performed.” The HHS listed a slew of provisions of the Social Security Act (the Act) that will be affected by the Obergefell decision, including titles XIX and XXI and particularly determining financial eligibility for Medicaid and CHIP; determining income for purposes of premiums and cost-sharing charges under sections 1916 and 1916A of the Act and implementing regulations at 42 CFR section 447.50 et seq.; applying post-eligibility treatment of income rules under section 1902(a)(17) of the Act and implementing regulations at 42 CFR sections 435.700 et seq. and 435.832; applying the “spousal impoverishment” rules under section 1924 of the Act; and applying the liens, adjustments and recoveries, and transfer of assets requirements described in section 1917 of the Act.

Although the constant changing and expansion of laws and regulations is often frustrating and counterproductive, in this case, putting politics aside, the Obergefell effect will at least lead to more uniformity among states, simplifying the legal web health care providers and patients sometimes find themselves entangled in. But as our clients know all too well, it also pays to have attorneys with their fingers on the pulse of our evolving body of law.

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The Obergefell Effect | Callagy Law

Wednesday, December 9, 2015

The NJ Workers’ Compensation Act | Callagy Law

Examining the Exclusive Remedy Provision of New Jersey’s Workers’ Compensation Act

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

In view of N.J.S.A. 34:15-8, it has been understood that the Division of Workers’ Compensation (“the Division”) is vested with exclusive jurisdiction over claims arising out of employment related injuries. In relevant part, N.J.S.A. 34:15-8 states:

34:15-8. Election surrender of other remedies. Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation for the employee’s death shall bind the employee’s personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer’s business during bankruptcy or insolvency.

If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

In a recent case, the New Jersey Supreme Court found that the Superior Court had jurisdiction to make a threshold determination as to whether an injured worker was an employee or an independent contractor. See: Estate of Kotsovska v. Liebman, 221 N.J. 568 (2015). The Liebman case involved a wrongful death action brought by the estate of the deceased worker. At issue was whether the decedent was an employee or independent contractor. Significantly, the estate had not filed a petition with the Division. The Court held that when “there is a genuine dispute regarding the worker’s employment status, and the plaintiff elects to file a complaint only in the Law Division of the Superior Court, the Superior Court has concurrent jurisdiction to resolve the dispute.” In its analysis, the Court emphasized that “there was no claim pending before the Division over which it could assert jurisdiction.” The Court further reasoned that the doctrine of primary jurisdiction was inapplicable on the grounds that the question of a worker’s employment status is often determined by trial judges and juries, the Division is in no better position than the Superior Court to determine a worker’s employment status, and there was no risk of inconsistent rulings because a petition had not been filed with the Division.

It is expected that this decision will result in increased filings of workplace injury lawsuits in the Superior Court where the worker is claiming to be an independent contractor to avoid some of the limitations on redress in the Division.

We hope you have found this information helpful and interesting. Please reach out to us here with any questions or comments regarding healthcare legal matters, or if you are a medical provider that has questions regarding Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

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The NJ Workers’ Compensation Act | Callagy Law

Tuesday, December 8, 2015

Hospital Anesthesia Services Potentially Recoverable! | Callagy Law

Are Hospitals Entitled to Reimbursement for anesthesia services?

Anesthesia is a way to control pain during a surgery or procedure by using medicine called anesthetics. General anesthesia is used to ensure comfort and safety during certain types of procedures. Anesthesia effects and helps control a patient’s breathing, blood pressure, blood flow, and heart rate/rhythm, among other things.

When you get general anesthesia, in layman’s terms, “put under,” you are completely unconscious and immobilized. General anesthesia may be administered via gas, an IV line or a combination of both. Typically, major/complex procedures that require a long period of time to perform require general anesthesia.

A patient may present to an Ambulatory Surgery Center (ASC) or a Hospital facility to undergo these types of major/complex procedures. In a case where a patient presents to a Hospital facility to undergo a procedure, the Hospital provides the anesthesia and necessary supplies. The hospital provides the equipment, supplies and sometimes staff required to safely and effectively deliver anesthesia services during the procedure. The specific resources that the hospital provides vary depending upon the type of anesthesia the patient requires and the patient’s particular medical condition. The staff will also vary according to the hospital. Sometimes the staff are outside anesthesiologists working in the hospital, and sometimes, they are hospital employees.

So how is this billed to the insurance carrier? In the case of the outside anesthesiologist, they will bill separately for his or her professional services, as will your surgeon and the other physicians who provide services for you while you are hospitalized. They will bill for part of the services, called the professional component. The hospital will issue a separate bill for all of the services and items the hospital provided during your hospitalization and that bill will include charges for the hospital’s role in the delivery of anesthesia services based on the specific type anesthesia services a patient receives. The hospital’s bill is for what’s called the technical or facility component.

An insurance carrier may attempt to argue that the Hospital improperly submitted what constitutes duplicate billing of anesthesia for the date(s) of service that are at issue. Usually, this is based upon the fact that the anesthesiologist, who administered the anesthesia services on the date(s) in question, had already submitted his/her independent bills for the “same” instance of anesthesia services for the procedure. This is incorrect, as both the anesthesiologist and hospital are each billing only for their portion of the services provided.

The insurance carrier may also attempt to argue that pursuant to N.J.A.C. 11:3-29.4(o)(7) anesthesia materials, including the anesthetic itself, and any materials, whether disposal or reusable, necessary for its administration are not entitled to a separate charge. As such, the Hospital facility would not be entitled to reimbursement for anesthesia because anesthesia services were “bundled” into the main surgical code. However, this is not always the case.

There are several arguments that Callagy Law has successfully advanced where arbitrators in NJ No-Fault (PIP) arbitrations have determined that such anesthesia services are separately reimbursable to the hospital. Namely, if the procedure was an inpatient procedure, if it was an emergency procedure, or if it was an outpatient surgical procedure, where the main surgical code billed was not on the Hospital Outpatient Surgical Facility (HOSF) fee schedule. In each of these examples, there are strong arguments to be made that the technical/facility portion of anesthesia should have been reimbursed to the Hospital, despite the carrier’s arguments to the contrary.

Therefore, Hospital facilities are sometimes entitled to separate reimbursement for anesthesia services in addition to the anesthesiologist’s separate and distinct bill for his/her own personal services.

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Hospital Anesthesia Services Potentially Recoverable! | Callagy Law

Law and Entrepreneurship TV - Episode #29 - #‎AskSeanCallagy‬

#PearlHarborRemembranceDay

Callagy Law and Entrepreneurship Library – TV is an original series from Sean Callagy, President and Founder of Callagy Law; to help the general public with every day legal questions and information. For more information about Sean Callagy, Callagy Law, or any questions you have, please email scallagy@callagylaw.com

If you’d like to have your legal questions answered on the show, email Sean: scallagy@callagylaw.com

See more here: www.callagylaw.com/blog

In this article / video, Sean Callagy will focus on topics to help people better their legal knowledge of vital information. Clients often come to Sean Callagy’s team with questions about their businesses, ranging from contracts, disputes, and other common legal issues in the business and entrepreneurial world. Our mission is to answer any legal questions and provide information to anyone who may need it. If you have questions about any of the content you see or to have your questions answered on an upcoming show by Sean, please email your questions directly to him by clicking here.

Law and Entrepreneurship TV - Episode #29 - #‎AskSeanCallagy‬

Why Not with Sean Callagy #29 | Pearl Harbor Remembrance Day

Pearl Harbor Remembrance Day | Why Not?!

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Why Not with Sean Callagy #29 | Pearl Harbor Remembrance Day