Recently, our firm has seen a rise in No Fault arbitrations circulating around a procedure known as Manipulation under Anesthesia. One would assume that any advance in medicine is always a positive thing, but they would be wrong. As with anything new, there is always a transitional period, where guidelines are being developed and the lack of guidance causes chaos. Sometimes it can take some time before we come away with consistent decisions from the arbitrators or guidance from the Workers Comp Board, which puts both providers and attorneys in a tough spot. During this transitional period, insurance companies used this chaos in order to create new reasons why providers shouldn’t be paid. And trust me, during these arbitrations, we have heard it all. The good news is, we are one step ahead of the insurance companies, and have already had our fee schedule calculations confirmed. (Please see Flatbush Chiropractic P.C. a/a/o Ude Ofuru v. Nationwide Insurance Co. 17 1991 R 25758 10; Flatbush Chiropractic, AAA Case No. 412010014919 at 31-32 [Skelton, Arb.])
For those of you who don’t know what the procedure is, I will explain. It is a procedure that lasts between 20-30 minutes, where a patient is put under anesthesia, and while the patient is out, a series of manipulations and stretches are done to their body. Basically, anesthesia is used to prevent the possibly of the patient tensing up or hindering the movements required to achieve the goal of the procedure. The purpose of the procedure is to break up fibrous adhesions and scar tissue around the spine. Typically, the procedure will be recommended as an alternative to surgery for those patients who have received long periods of conservative treatment without improvement.
The first incorrect defense used by the insurance companies with respect to this procedure was that a Chiropractor was not licensed to do such a procedure. First of all, the argument was facially invalid, since chiropractors are required to take a course & be certified in the procedure before performing it. But of course such logic was not enough for insurance companies, so luckily Workers Comp helped us out. MUA is within the scope of a chiropractor’s license (Employer: Aramak, 2009 WL 456874, *2 [Worker’s Comp Bd]; Employer: Eckerd Drug, 2008 WL 922458, *1 [Workers’ Comp Bd]; Employer: Solomon Schechter Day School, 2006 WL 3889159, *1 [Workers’ Comp Bd]). The Education Law “[does not] prohibit a chiropractor from performing spinal or extra-spinal manipulations on patients who are under anesthesia” (State Board July 22, 2005 Opinion Letter).
Many Insurance companies also have tried to allege the administering of the anesthesia makes the procedure illegal, some even gone as far as citing it as a “Class E Felony”. This of course, is yet another ridiculous argument, which we quickly defeated, since the anesthesia is always administered by an anesthesiologist, as a restriction is that the chiropractor may not administer the anesthesia (see Aramak, 2009 WL 456874, *2).
After losing on the aforementioned grounds, insurance companies decided to drive every arbitrator and provider crazy by denying MUA bills based on the NYS Fee Schedule. Maybe they thought by confusing everyone with a bunch of arbitrary numbers, they’d avoid paying providers for MUA. Rather than tell you all the preposterous arguments and numbers insurance companies have come up with, I think I’d rather focus this blog on what we’ve proven to be the correct way for a provider to bill based on the NYS Fee Schedule.
Chiropractors use the Surgery section of the Fee Schedule to bill for MUA. Of course the Insurance companies come back and say “well they aren’t surgeons so they can’t use this section”. They are wrong. According the Workers’ Comp Opinion Letter (ya know, the people who write the fee schedule) Chiropractors trained in MUA may bill under the codes in Surgery section of the Fee Schedule and to identify themselves as “surgeons” on the MUA reports (Workers’ Comp August 14, 2009 Opinion Letter). The Fee Schedule “is divided into sections for structural purposes only” and is “organized according to type of service” (Introduction and General Guidelines of the Fee Schedule). “[T] he division of medical services into different sections is not to establish who can bill for a particular service” (Robert Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 13 Misc3d 172, 175 [Civ Ct Kings County 2006]; John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 29 Misc3d 367 [Civ Ct Kings County 2010]).
Subsequently, Insurance companies began to accept that a chiropractor could bill under the surgery section, but now had a problem with how much they are entitled to. Luckily, Workers Comp finally answered this question for us, so that insurance companies can no longer propose the under payment of providers. A chiropractor’s fee for performing MUA is 68.4% of the rate paid to physicians or osteopaths for performing the same procedure (Workers’ Comp Opinion Letter August 14, 2009). The charges are the unit value, multiplied by the $229.04 surgery multiplier, times 68.4%.
With that being established, insurance companies still were not happy. They now found a problem with regard to the second chiropractor or osteopath performing the procedure. According to MUA guidelines, a second doctor, chiropractor or osteopath must be in the room when the procedure is performed. If you think about it, it makes sense. It would be near impossible for one person to manipulate the body of a person in the twilight state alone. Insurance companies have come out and said that this co-doctor or chiropractor is an assistant, and therefore should be paid the assistant’s rate of 16%. Such a number is ridiculous, since this is NOT an assistant; this is a licensed doctor, certified in MUA procedures, operating as a co-surgeon. Both Arbitrators Skelton and DeSimone found that the second chiropractor was entitled to 50% of the amount received by the primary chiropractor (see Flatbush Chiropractic, AAA Case No. 412010014919 at 31-32 [Skelton, Arb.];Blumenthal, AAA Case 412009020285 at 4). Being that this is essentially a co-surgeon, any less than 50% would be completely unreasonable.
Unfortunately, until there is a designated section in the NYS Fee Schedule for chiropractors performing MUAs, the insurance companies will continue to deny providers payment. The good news is we have already had our calculations confirmed, and have been very successful in defeating these unreasonable arguments and getting our providers the payment they deserve.
For more information: Call (516) 478-0237
By: Candice L. Deaner, Esq.