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Friday, January 8, 2016

Decision Point Review Plans and Their Significance

Part 1: Pre-Certification

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.

Understanding Decision Point Review Plans or DPRP’s is critical to any medical provider who sees patients injured as a result of a motor vehicle accident (MVA). DPRP’s are required to be filed with the State of New Jersey by carriers who write insurance policies governed by the New Jersey No-Fault laws, otherwise known as PIP, or Personal Injury Protection.

DPRP’s are filed with the state by PIP insurance carriers in order to set forth that carrier’s substantive and procedural requirements needed for a medical provider to be reimbursed by the PIP carrier. They enable carriers to not only set forth how and when claims should be submitted, but also, among other things, to regulate specific diagnostic tests and apply additional deductible or co-pay penalties for failure to comply.

Perhaps most importantly, DPRP’s are a tool for insurers to oversee the medical necessity of treatment. Carriers can deny approval of medical services and reduce or deny payment for medical treatment, when insurers feel the treatment does not comport with medical guidelines. Of course, these determinations are often quite subjective and can be challenged by the medical provider and firms like Callagy Law. In fact, when a medical provider disagrees with the determination, they should and must immediately appeal the denial to safeguard their interests.

Pursuant to the carrier DPRP’s, insurers are to be notified of treatment plans by treating medical providers. These notifications will be faxed to a designated fax number, established by the carrier, and will be reviewed for certification or denial within 72 hours from receipt. Along with the Attending Provider Treatment Plan Form (ATPT form), the treating provider will submit medical notes to support the requested treatment. When the requested treatment falls within medical guidelines or standards for treating that specific injury, insurers are supposed to approve the treatment, and send notice to that effect to the treating provider.

Those approvals usually come from nursing staff working for the insurer or a designated medical vendor working with the insurer. Should the nurse feel the treatment is not in line with current medical protocol, then the requested treatment will be sent to a doctor for review. The doctor reviewing the requested treatment is still held to the 72-hour rule, and if a denial or approval is not communicated within that 72 hours, the requested treatment will be considered approved. This rule is in place to ensure carriers do not hold up treatment for injured patients.

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:

Decision Point Review Plans and Their Significance

Wednesday, January 6, 2016

Section 20 Settlements | 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.

Section 20 Settlements

According to N.J.S.A. 34:15-20, the parties to a workers’ compensation claim petition may settle the claim where (1) jurisdiction, liability, causality and/or dependency are disputed; (2) the parties wish to resolve the claim with a lump sum settlement; (3) the parties consent to the settlement; (4) the parties are represented by Counsel; and (5) a judge of compensation determines that the settlement is fair and just under the circumstances. Notably, once the settlement is approved, it shall have the force and effect of a dismissal of the claim petition and shall be binding on the employee and employee’s dependants. Id. Such settlements are commonly referred to as “Section 20 Settlements” based on N.J.S.A. 34:15-20. In relevant part, N.J.S.A. 34:15-20 states:

34:15-20. Dispute; submission to division; order approving settlement.

…

After a petition for compensation or dependency claims has been filed, seeking compensation by reason of accident, injury or occupational disease of any employee, and when the petitioner is represented by an attorney of the State of New Jersey, and when it shall appear that the issue or issues involve the question of jurisdiction, liability, causal relationship or dependency of the petitioner under this chapter, and the petitioner and the respondent are desirous of entering into a lump-sum settlement of the controversy, a judge of compensation may with the consent of the parties, after considering the testimony of the petitioner and other witnesses, together with any stipulation of the parties, and after such judge of compensation has determined that such settlement is fair and just under all the circumstances, enter “an order approving settlement.” Such settlement, when so approved, notwithstanding any other provisions of this chapter, shall have the force and effect of a dismissal of the claim petition and shall be final and conclusive upon the employee and the employee’s dependents, and shall be a complete surrender of any right to compensation or other benefits arising out of such claim under the statute.

Parties should be aware of the availability of Section 20 settlements when defending/pursuing workers’ compensation claims as an option to avoid protracted litigation. Indeed, Section 20 Settlements are particularly appealing where the costs of defending against or pursing a claim are not sensible in light of the value claim. However, when entering into a Section 20 settlement, the parties should be mindful of the fact that such a settlement will likely bar any subsequent claims by the petitioner and such employee’s dependants.

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:

Section 20 Settlements | Callagy Law

Tuesday, January 5, 2016

Can PPOs and PIP Coexist? | Callagy Law

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.

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Can PPOs and PIP Coexist? | Callagy Law

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.

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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.

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Reimbursement Under New Jersey PIP laws | Callagy Law