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Monday, June 13, 2016

Palliative Care Under New Jersey PIP Laws

The purpose of this post is to help assist those with questions they have concerning their business or medical practice. 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.

As a claimant attorney in New Jersey PIP arbitration, I often seek reimbursement for treatment that was denied by insurance companies because the treatment was “palliative.” My response is, the palliative nature of the care is not ipso facto grounds to deny such treatment. Just like curative medical treatment, palliative care is compensable when medically necessary and reasonable.

What is “palliative care”? Palliative care is treatment that provides relief for the patient without curing the underlying cause of the symptoms. Dispute Resolution Professional (DRP) Fannan explained the standard to determine if palliative care is compensable under the New Jersey PIP laws in the Forthright Arbitration matter 1595197, as follows:

“Further, after treatment to effectuate a cure or rehabilitation has ended and the patient’s condition has plateaued, medical expenses for palliative treatment may continue, but only to the extent that such expenses are deemed reasonable and necessary. The reasonableness and necessity of palliative expenses must be evaluated in the context of the quantum of pain involved, plaintiff’s tolerance of pain and the overall effect of the pain on plaintiff’s life. Perun v. Utica Mutual Insurance Company, 280 N.J. Super 280, 285-86 (Law Div. 1994). The services must be shown by competent medical testimony to be such as are reasonable and necessary for the particular patient, taking into consideration his individual condition and need. Howard v. Harwood’s Restaurant Company Rest. Co., 25 N.J.

72 (1957). In determining what is reasonable and necessary, the “touchstone is not the (patient’s) desires or what he (sic) thinks is to be most beneficial. Rather it is what is shown by sufficient competent evidence to be reasonable and necessary to cure and relieve him (sic).” Squeo v. Comfort Control Corp. , 99 N.J.588(1995).”

By way of background, medical providers are expected to generally follow Care Paths, which are suggested general treatment paths to address injuries. For example, a Care Path may allow for a certain period of time of conservative care, and if the patient is still symptomatic, it may be time to “move up” the Care Paths to the next level of care. Perhaps injection treatment would be the next level of care following conservative care. There may be medical reasons to deviate from the Care Paths, and the treating doctor should explain the reasons for the deviation.

Let’s say the patient has been treated through all levels of the Care Paths for the injury at hand, but the patient is still suffering. Is palliative care still permitted and compensable under the New Jersey PIP laws. As noted above, generally palliative care is held compensable when it is medically reasonable and necessary. Elkins v. New Jersey Mfrs. Ins. Co., 203 N.J. Super. 695, 701 (App. Div. 1990). The PIP insurance carrier has a duty to provide payment for treatment which results in the alleviation of pain to the patient, even without regard to the curative aspect of that treatment. Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400, 413-414 (Law Div. 1984).

For example, Forthright DRP Miller ruled as follows in the Forthright PIP Arbitration matter 1337517:

“Medically necessary” is defined as treatment or a diagnostic test that is “consistent with the clinically supported symptoms, diagnosis or indications of the injured person”. In addition, that treatment is “the most appropriate level of service that is in accordance with the standards of good practice and standard professional treatment protocols including the Care Paths” and is “not primarily for the convenience of the injured person or provider”. N.J.A.C. 11:3-4.2.

The term “clinically supported” is defined in N.J.A.C. 11:3-4.2 and essentially means that there must be sufficient medical evidence and analysis to justify the performance of the requested treatment. This includes a physical examination, a review of both subjective complaints and objective findings, prior tests and a record of these observations and conclusions.

In addition, the treatment must be palliative or curative of a condition, not simply something that was provided for the patient’s personal comfort. See, Perun v. Utica Mut. Ins. Co., 280 N.J. Super. 280 (Law Div. 1994). See also, Elkins v. New Jersey Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990); Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984); N.J.A.C. 11:3-4.2.

In sum, palliative care very well may be compensable under the New Jersey PIP laws. The treating doctor should explain the patient’s condition and the need for the medical treatment, whether curative or palliative.

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 $200,000,000 for medical providers, and that number grows daily. Our team of knowledgeable PIP Arbitration attorneys are ready to help you. 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.

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Palliative Care Under New Jersey PIP Laws

Friday, June 3, 2016

The Definition of “Payment” When Calculating The Statute of Limitations in PIP Arbitration Matters

The question of what constitutes payment for the purpose of calculating the Statute of Limitations in a PIP Claim for Benefits was recently addressed by our office in the Context of a PIP Arbitration filed on behalf of one of our Medical Provider’s.

The issue our Provider faced, as presented by CURE Insurance, was whether the Provider’s Claim was barred by the application of the 2 year statute of limitations period in connection to the filing of a PIP Arbitration Matter.

In relation to the calculation of the Statute of Limitations time period when filing a PIP Claim for Benefits, N.J.S.A. 39:6A-13.1(a) states:

Every action for the payment of benefits payable under a standard automobile insurance policy pursuant to sections 4 and 10 of P.L. 1972, c. 70 (c. 39:6A-4 and 39:6A-10), medical expense benefits payable under a basic automobile insurance policy pursuant to section 4 of P.L. 1998, c. 21 (c. 39:6A-3.1) or benefits payable under a special automobile insurance policy pursuant to section 45 of P.L. 2003, c. 89 (c. 39:6A-3.3), except an action by a decedent’s estate, shall be commenced not later than two years after the injured person or survivor suffers a loss or incurs an expense and either knows or in the exercise of reasonable diligence should know that the loss or expense was caused by the accident, or not later than four years after the accident whichever is earlier, provided, however, that if benefits have been paid before then an action for further benefits may be commenced not later than two years after the last payment of benefits.

(emphasis added).

Specifically, the facts of our matter showed that while there were no actual pip benefits paid by CURE, it was undisputed that CURE received the Provider’s Bill and processed the bill, applying the eligible amount (as determined by CURE) to the patient’s policy deductible.

Our office relied on the case of George C. Everett v. State Farm Indemnity Co., 358 N.J. Super. 400 (App. Div. 2002), wherein the Appellate Division found that the term “last payment of benefits” as used in N.J.S.A. 39:6A-13.1(a) is consistent with and includes the adjustment of a bill and application of that bill to the patient’s deductible.

Specifically, our office highlighted that in Everett, 358 N.J. Super. at 379, the Court found:

“since the bill was an expense caused by the accident, we conclude that the process of adjusting the bill to the fee schedule and applying the balance to the deductible constituted a ‘last payment of benefits’ under the Act, making the plaintiff’s complaint, which was filed within two years of that date, timely.”

Our office maintained that based on the determination of the Court in Everett, even though the adjustment/ processing of the Provider’s bill in this matter resulted in no more than a credit against the patient’s deductible, this was considered a benefit to the insured and therefore the date of processing of the bill sets the statute of limitations period once again.

In considering the above arguments, DRP Gary T. Lesser, Esq., in NJ-1644666 determined that based upon the Everett matter, the two-year statute of limitations commenced anew with the processing the bill and application of the payment against the patient’s deductible. As such, the Statute of Limitations period did not expire prior to the Provider’s filing of the PIP Demand for Arbitration. Therefore, as a result, the Provider had standing to Proceed with the underlying PIP Claim for Benefits.

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The Definition of “Payment” When Calculating The Statute of Limitations in PIP Arbitration Matters

Tuesday, January 5, 2016

Can PPOs and PIP Coexist? | Callagy Law

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.

Health care providers are all too familiar with PPO agreements. While these contracts certainly provide a benefit to providers, they ultimately cut into their reimbursement on applicable claims. An interesting question, though, is what happens in an instance where a PPO contract conflicts with a PIP Medical Fee Schedule?

Typically, insurance carriers will apply a PIP fee schedule rate regardless of whether or not an applicable PPO contract exists, provided of course that the PPO rate exceeds the fee schedule rate. If the PIP fee schedule rate exceeds the PPO rate, then the insurer will likely apply the PPO rate. In other words, in determining whether to reimburse the provider according to the PPO or according to the PIP fee schedule, insurance carriers are likely to pay the lesser amount.

While this may seem like an unfair ploy by the insurance carriers to pay out as little as possible (it is), it is not without legal basis. PPO contracts have been deemed entirely enforceable and consistent with the PIP No-Fault scheme; however, it is well understood that parties cannot contract outside of the law as such would violate public policy. Thus, insurance carriers make the case that the PIP fee schedule is a government regulation capping the rate of PIP reimbursement, and a PPO contract exceeding that rate is not enforceable.

While there is merit to this insurance friendly argument, it is open to legal dispute. Health care providers can make the argument that the parties’ freedom to contract trumps the PIP fee schedule and, on occasion, PIP arbitrators will find in the Claimant’s favor on this issue. One has an even greater chance of achieving this result if the carrier applies a PPO rate to at least part of the claim. For example, in a case where the provider bills for multiple treatment codes and not all of these codes are found on the PIP fee schedule, the carrier will likely reimburse the fee schedule rate where applicable, and the PPO rate where the fee schedule is not applicable. In such a case, the provider can argue that the carrier has effectively acknowledged the applicability of the PPO to the claim, and the entire claim should therefore be governed by the PPO contract.

To be sure, some PPO contracts specifically state that reimbursement should be rendered pursuant to the lesser of the PPO rate or any applicable State fee schedule. In such cases, the provider has little if any chance of escaping the applicability of the PIP fee schedule given the express terms of the contract. However, the fact that the drafters of these contracts find it necessary to include such language gives credibility to the argument that, absent such language, the PPO rate should stand despite the existence of the PIP fee schedule.

As for whether receiving reimbursement pursuant to the PIP fee schedule rather than at a PPO rate warrants the filing of a PIP arbitration, this is not entirely clear as this issue more often than not is decided in the insurance carrier’s favor. However, it is certainly another issue to be mindful of for cases that are already facing arbitration for an entirely different issue. The more issues a provider can raise in a given case, the more likely they are to receive an award of reimbursement.

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:

Can PPOs and PIP Coexist? | Callagy Law

Tuesday, November 17, 2015

PIP ARBITRATION PRACTICE TIP | CALLAGY LAW

THE IMPORTANCE OF FILING INTERNAL APPEALS PRIOR TO FILING A DEMAND FOR ARBITRATION

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, andCommercial Insurance. We hope to have this blog shed a light on many common questions.

One of the most common defenses raised by insurance carriers as a basis to deny a medical provider’s claim for personal injury protection (“PIP”) benefits is failure to file internal appeals. Prior to filing a Demand for Arbitration on assignment from a patient, medical providers must comply with the PIP insurer’s internal appeal process. Thus, it is of critical importance for medical providers to abide by the PIP insurer’s internal appeal requirements, which can be found in the insurer’s Decision Point Review Plan (“DPRP”). Insurers generally forward their DPRP to treating medical providers after receipt of the treating provider’s 21 day notice letter.

The controlling regulation , N.J.A.C. 11:3-4.7(d)(8), requires that informational materials for policyholders, injured persons and treating medical providers shall include particular information including an explanation of the alternatives available to the provider if reimbursement for a proposed treatment, diagnostic test or durable medical requirement is denied or modified, including the insurer’s internal appeal process and how to use it. If the insurer does not have proof that it sent a copy of its DPRP to the patient and/or treating medical provider, it may lose the right to assert the defense of failure to file an internal appeal based on the fact that there was a lack of notice to the patient and/or treating medical provider of the internal appeals process.

It is important to review the PIP insurer’s internal appeals process since carriers have different requirements regarding whether both a 1^st and 2^nd level internal appeal must be filed, the deadlines for filing same and whether the appeal can be faxed or must be sent by regular mail or certified mail to a specific address listed in the DPRP. Medical providers must retain written proof that they forwarded the internal appeal(s) in compliance with the DPRP requirements, which can be by facsimile confirmation or certified mail return receipt.

There are two different types of internal appeals: (1) an appeal of an adverse determination based on lack of medical necessity and (2) an appeal of non-payments or under-payments, which can be based upon any of the following grounds:

Causation

Improper coding or down-coding of services

Usual, customary and reasonable rates

Lack of documentation

Coverage issues such as lack of cooperation

Improper pre-certification penalties.

Medical providers should keep in mind the importance of listing all potential bases of their appeal since the information listed on the appeal governs and may limit the arguments that may be raised in a later PIP arbitration proceeding.

In sum, medical providers should pay close attention to a PIP insurer’s DPRP plan’s internal appeal requirements. When an insurer denies treatment, a medical provider should promptly file an internal appeal of the denial to protect its rights to proceed to PIP arbitration.

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!

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PIP ARBITRATION PRACTICE TIP | CALLAGY LAW

Friday, November 13, 2015

Why Is an Assignment of Benefits So Important? | Callagy Law

When it comes to pursuing PIP/No-Fault claims, also known as Motor Vehicle Accident (MVA) claims, obtaining an Assignment of Benefits (AOB) from a patient is absolutely essential. This is also true of Commercial Insurance (CI) claims. An AOB is a document by which a patient transfers their rights under their insurance policy to the medical provider who is treating them. Why is this so important?

A medical provider in the context of PIP or CI has no contractual relationship with the insurance carrier. If a patient sees a medical provider and that provider, with nothing else, bills the patient’s carrier, there is nothing binding the carrier to pay the medical provider. The AOB places the medical provider in the shoes of the patient as far as the patient’s insurance policy is concerned, enabling the provider to be paid directly. If you are a health care provider, seeing a PIP or CI patient, and wish to be paid directly for covered services from an insurer, you must obtain an executed AOB.

You might be wondering why I do not include Workers Compensation (WC) claims along with PIP and CI claims in terms of the necessity of an AOB. AOB’s are not critical to WC claims. The reason for this is that the patient does not have an insurance policy in the WC context. Their employer does. So, there is no insurance policy with which the patient has direct involvement. What is critical is the authorization. The authorization is what creates the legal relationship between the carrier and the medical provider.

In short, obtaining a properly executed AOB should always be on the top of any medical provider’s list when rendering services to a PIP or CI patient.

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Why Is an Assignment of Benefits So Important? | Callagy Law

Tuesday, November 3, 2015

PPO Contracts and PIP Arbitration | Callagy Law

N.J.A.C. 11:3-29.1(b) “. . . establish(s) medical fee schedules on a regional basis for the reimbursement of health care providers providing services or equipment for medical expense benefits for which payment is required to be made by automobile insurers under PIP coverage and by motor bus insurers under medical expense benefits coverage.”

However, medical providers often participate in a preferred provider organization, commonly referred to as a “PPO” agreement. Simply, medical providers participate in PPO agreements and accept discounted payments in exchange for certain benefits outlined in the contract.

Payment disputes often arise when an insurance carrier pays PIP coverage benefits in according to the PIP Fee Schedule Rates instead of according to the PPO discount rates. When an insurance carrier and a medical provider cannot settle such disputes, the medical provider may elect to have the matter resolved in binding arbitration, a forum administered by the New Jersey Department of Banking and Insurance (DOBI). Such matters are decided by a Dispute Resolution Professional (DRP).

Often, claimant medical providers argue that any improper PIP coverage payments constitute a violation of the PPO payment terms, resulting in a loss of the PPO discount. Suppose the PPO contract allows the insurance carrier to take a 20% discount of the billed charges, but payment was made per the PIP Fee Schedule. If DOBI regulations provide for payment to be made according to billed charges, then the claimant was entitled to payment at 80% of the billed charges, as outlined by the PPO contract in this scenario. In arbitration, the medical provider may seek the full amount of the billed charges, if the PPO contract allows for such redress.

Recently, a DRP agreed with this position in the matter Meadowlands Hospital a/s/o Walter Martinez v. GEICO (NJ-1540551). The DRP made the following finding:

Based upon a review of the record evidence, claimant’s argument is meritorious. . . . respondent did not pay claimant at 65% of the charges but rather inexplicably paid this facility at the New Jersey Physician’s Fee Schedule for CPT code 62310 and 62311. Clearly, this action was in violation of the terms of the PPO agreements and respondent loses the benefit of the PPO contract reduced payment rate. Claimant is awarded the balance sought for CPT codes 62310 and 62311 . . .

Similarly, in Raritan Bay Medical Center a/s/o D.H. v. GEICO (NJ-1596762), the DRP decided that the respondent insurance carrier had “failed to issue proper reimbursement . . . [, and] that the PPO Agreement states that Respondent is not permitted to apply any discount and Claimant is entitled to receive 100% of billed charges. Claimant is awarded $11,777.45 for codes 70450, 70486 and 72125.”

In NJ-1596762, the DRP construed the PPO contract as requiring the insurance carrier to issue payments within 30 days of receipt, per the contract’s payment terms. Because the insurance carrier issued payment per the PIP Fee Schedule instead of the PPO discounted rate, the DRP found contact payment terms were violated, resulting in the discount being forfeited.

Careful review of a PPO contract payment terms is essential for any medical provider participating in an binding arbitration.

PPO Contracts and PIP Arbitration | Callagy Law