Sean Callagy - Attorney and Entrepreneur

Wednesday, February 24, 2016

Establishing Usual/Customary Rates in Workers Compensation

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.

In New Jersey, the Department of Labor and Workforce Development oversees Workers’ Compensation. Petitioner medical providers may file a claim to recover payments denied by the insurance carrier, a self-insured corporation, or a third party administrator.

Pursuant to N.J.S.A. 34:15-15, Medical and hospital service, “… All fees and other charges for such physicians’ and surgeons’ treatment and hospital treatment shall be reasonable and based upon the usual fees and charges which prevail in the same community for similar physicians’, surgeons’ and hospital services.” Because there is no workers’ compensation fee schedule in New Jersey, establishing usual, customary and reasonable fees are central to seeking additional reimbursement in a workers’ compensation claim.

Under New Jersey law, a medical provider, not an insurance carrier, “establishes [the provider’s] own customary rate.” Cobo v. Market Transition Facility, 293 N.J.Super. 374, 389 (App. Div. 1996). While an insurance carrier may review the medical provider’s fee to ensure that it has billed at its usual and customary rate, the provider is entitled to its billed rate so long as it is reasonable. (See: Id. at 386). (emphasis added) In determining the reasonableness of a medical provider’s fee, courts look to a number of factors, including the following: 1) the subject provider’s billing history, 2) disparity in charges to different insurance carriers, 3) what other providers are charging for the service. (See: Id. at 387).

The Court in Cobo, citing 24 NJR 1348 further stated, “The provider, in submitting the billings, makes the initial determination as to what his or her usual, customary and reasonable fee is….thus, the scheme envisions that the health care provider will set its own customary fee, not the insurer or the insurer’s auditor.”

One way for a medical provider to establish usual, customary and reasonable fees is with exemplar Explanation of Benefit forms from insurance carriers and third party administrators indicating the usual and customary rate billed by the petitioner medical provider (and other medical providers) for the appropriate CPT Codes which had been reimbursed at 100%. Specifically, the Explanations of Benefit forms demonstrate the consistency of a petitioner medical provider’s billing practices by documenting, regardless of insurance carrier or third party administrator, the usual and customary rates charged for the CPT Codes at issue. Providing such Explanation of Benefit forms may expedite settlement negotiations.

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 $185,000,000 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.

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Tuesday, February 23, 2016

Interlaminar vs. Transforminal Injections | Callagy Law

When disputing the use of a Transforaminal Injection as opposed to an Interlaminar Injection, Transforminal Injections have proven to present less risk to the patient and be more cost effective for a provider.

Specifically, regarding the differences between Interlaminar and Transforaminal Injection Approaches, studies have clearly established the following:

The interlaminar approach is the most common way of performing an epidural injection for all indications in anaesthesia […]This can be done with or without fluoroscopic guidance, but one of the many queries with regard to the varying efficacy of epidural steroid in studies has been the uncertainty of whether, by caudal or interlaminal route, the steroid has been accurately placed at the required site.

(See, “Epidural Steroids,” by Neil Collighan and Sanjeeva Gupta MD)

On the other hand:

The transforaminal approach is a selective injection aimed at a specific level and is always done under fluoroscopic guidance. […] Both the interlaminar and transforaminal approaches can be used at the cervical, thoracic, and lumbar levels. The benefits of the transforaminal approach, when performed by an experienced clinician, may include decreased risk for dural puncture with delivery of smaller volumes of steroid to the appropriate site of considered pathology. (emphasis added). [Id.]

In fact, in one recent study, the researcher concluded:

Transforaminal injection [is] superior in its ability to reach the site of pathology while being able to use even smaller doses of steroids. While the increased technical difficulties are noted to perform this method, his study showed better outcomes after a series of epidural steroid injections [with] the transforaminal approach followed by the caudal approach as a reasonable secondary approach.”[Id.]

Additionally, there is an established difference in cost effectiveness between the intralaminar method and the transforaminal:

Evaluation of the cost effectiveness of epidural injections including transforaminal steroid injections for the management of chronic low back pain revealed […] cost effectiveness of caudal epidural steroids at $3,635.00 and transforaminal steroids at $2,927.00 per year.

(See, “Transforaminal Lumbar Epidural Steroid Injections,” by Laxmaiah Manchikanti, MD)

Furthermore, with respect to the efficacy of the various injection methods:

the transforaminal epidurals appear to be clinically effective with a favorable outcome and cost effectiveness, compared not only to blind interlaminar epidural steroid injections and fluoroscopically directed caudal epidural steroid injections but also to numerous other modalities of treatment.”[Id.]

As stated above the Transforminal approach presents less risk of a dural puncture with the delivery of smaller volumes of steroid to the appropriate site of injury. The studies also showed better outcomes after repeat series of epidural injections via the Transforaminal approach as opposed the Interlaminar approach. Based on these recent studies and that fact that Transforminal injections represent a saving of up to $800 a year clearly demonstrate that the Transforminal approach is a better option for the health of the patient and for the treating provider.

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Wednesday, February 17, 2016

Answering Equal Employment Opportunity Commission (EEOC) Complaints

What you should do when your business receives a workplace complaint from EEOC.

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 business and commercial litigation. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

Receiving a workplace harassment or discrimination complaint from the Equal Employment Opportunity Commission (EEOC) or state attorney general’s office is one of the most stressful events that some business owners go through, especially given the “he said/she said” nature of the claims. Usually, there is no direct evidence of harassment or discrimination such as emails or recording of conversations. As such, responding to the allegations in the complaint can substantively be a difficult process.

When your business receives a EEOC complaint, it is important that you begin to address it immediately. The EEOC rules require that a written response to the complaint, called an “answer” to be served upon the EEOC or attorney general’s office within 20 days after the complaint is received. An additional 10 day extension can be granted, but it must be requested in writing before the 20 day period has expired.

In addition to the answer, which responds to each and every of the allegations in the complaint, you will also have an opportunity to put forth any documentary evidence you do have to support your defense to be submitted with the answer. This is why it is imperative that you begin to respond to the complaint immediately. Compiling the information may take some time, even when it is a priority. For instance, you may be required to comb through employee emails to respond to a certain allegation, or you may need to review voluminous HR records which will be beneficial to your case.

Further, the EEOC may request certain documentation be produced along with the answer and any affirmative documents. Being open and compliant with any EEOC investigation is incredibly important, as the agency is granted many of the same powers as a Court.

Finally, if you decide to hire an attorney, it is imperative that you do so early in the proceedings. The agency requires that a Notice of Appearance be submitted by the law office handling the complaint. The penalty for failing to file this document can be quite severe; your attorney may be precluded from representing your company.

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.

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Tuesday, February 16, 2016

Insurance Carriers and Adequate Notice of In-Network Provisions

Insurance Carriers must provide adequate notice of their In-Network provisions

Many insurance companies Decision Point Review plans require that a patient present to specific providers (“in network”) for certain services (ie. surgery centers, diagnostic imaging, etc.) The insurance carriers are permitted to assess an additional 30% out of network co-payment penalty if those types of services are performed at an out of network facility.

However, a 30% vendor penalty cannot be applied where proper notice was not given to the patient that he/she was to obtain services through a designated vendor, and if the specific names and contact information for the providers were not provided to the patient, as same would be in violation of N.J.A.C. 11:3-4.8(c)(2).

N.J.A.C. 11:3-4.8(c)(2) dictates:

Upon receipt of a request for PIP benefits under the policy, the insurer or its PIP vendor shall make available to the insured and the treating medical provider information about approved networks and providers in the network, including addresses and telephone numbers.

That statute informs the carriers of the procedures they must follow in order to properly asses the penalty.

First, Respondent must provide proof that its DPRP was provided to the patient. As it is within a carrier’s Decision Point Review Plan (“DPRP”) that the 30% out-of-network penalty is discussed, outlining the guidelines that must be followed in order to avoid this penalty. Without having submitted proof that the DPRP and notice of the network provisions thereof were provided to the patient, there is no proof that the patient was aware he/she would even be penalized.

In arbitration many DRPs have ruled on these issues. DRP Fabiano discussed this is a NAF award where he held, “By not providing notice and information regarding the existence of and use of the voluntary networks to the insured, I find that the respondent has failed to comply with 11:3-4.8(c)(2).” (See, NJ-1223979)

DRP Patriaco also held that where the insurance carrier did not provide sufficient evidence that the DPRP was provided to the patient and treating physician pursuant to N.J.A.C. 11:3-4.7, the provider was not required to follow the provisions of the DPRP, to prevent penalty. (See, NJ-268557) The aforementioned matter involved whether or not Claimant was required to follow provisions regarding appeals, however, this is easily translatable to the issue of a DPRP regarding vendors. Therefore, without proper notice of the out-of-network penalty, Claimant’s fees cannot be reduced by the penalty amount.

In addition to failing to notify the patient and/or provider, the carriers must also prove that the information they submitted complied with the statute which requires addresses and telephone numbers relative to its approved networks and providers.

If the Respondent’s DPRP only references a telephone number to call, and that number does not reference a list of specific in network providers and their contact information, or at the very least contain a voice prompt providing access to this information, the insurance company has not satisfied the requirements of N.J.A.C. 11:3-4.8(c)(2), and accordingly, the 30% penalty would be improper.

In another arbitration award, DRP Mundy found that Respondent’s “DPRP fails to show how the insured or treating medical provider can contact the approved network providers.” (NJ-1461388) DRP Mundy authored another award finding:

DPRP is not in compliance with N.J.A.C. 11:3-4.8(c)2 in that it fails to “make available…information about approved networks and providers in the network, including addresses and telephone numbers.” Simply providing a phone number with no direct information regarding the approved networks is not enough to satisfy this requirement.

(See NJ-1491724)

DRP Amendola also found in Claimant’s favor in a case where the letter sent to the patient did not contain all of the statutorily required information, stating:

Missing from the July 6, 2012 letter to the patient is the contact information for the approved networks. N.J.A.C. 11:3-4.8 (c) (2) states that the in network provider information must be made available to the insured and the treating doctor. Even if I were to find that the July 6, 2012 letter was sent to the patient, the letter did not include the information required by the administrative code. Proper notice, with the required information to the patient, is crucial since it is the patient ultimately responsible for payment of the penalty.

(emphasis not added)

(see NJ-1482248)

Finally, in the event that the insurance carrier initially failed to provide proper notice in their DPRP, but later sent a notice to the patient very close in time to the procedures some DRPs have found that to be insufficient.

For example, a notice sent a mere three days before the treatment was scheduled would most likely be deemed as sent to too late in time to provide sufficient notice under N.J.A.C. 11:3-4.8(c)(2). Even if such a letter was received by patient prior to the services scheduled, practically speaking, it would be too late for the patient to change the location of an already scheduled procedure. Additionally, the patient might have potentially taken off work, and would maybe even arranged for someone to watch their children. Therefore, even if a patient received the notice letter three days before their appointment, the notice provision of N.J.A.C. 11:3-4.8(c)(2) would be thwarted because the insurance carrier sent this information so far into the process. It should have been provided up front in the DPRP. DRP Ganzhorn ruled in favor of the Claimant in this exact situation in NJ0703000951217, where she found that an out-of-network penalty did not apply when notification letter was dated three days prior to date of service.

Callagy Law has been extremely successful in obtaining recovery for improperly assessed out of network penalties to our clients based on the above arguments. If your billing has been reduced due to out of network penalties, contact Callagy law for help in obtaining reimbursement.

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Wednesday, February 10, 2016

The Issue with Time | Callagy Law

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 2012, N.J.S.A. 34:15-15 was amended to give the Workers Compensation Court exclusive jurisdiction over medical provider claims. Prior to 2012, it was clear that the statute of limitations for a medical provider’s claim was the six-year time period / statute set forth in N.J.S.A. 2A:14-1, which applies to all actions of a contractual nature, express or implied, and all actions to recover on an account. Although it is unclear whether a two-year statute of limitation applies to medical provider claims filed in a time after 2012, medical provider claims arising from events prior to the establishment of exclusive jurisdiction should carry a six-year period. The Appellate Division clearly held that the six-year time period applied to the medical provider’s claim in Medical Diagnostic Assocs. v. Hawryluk, 317 N.J. Super. 338, 349 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999), stating:

Finally, we deem it appropriate to discuss the statute of limitations issue in the event the Division determines that the employee’s claim is not compensable. Plaintiff asserts that if medical providers are not allowed to bring suit in the Law Division, there is the potential that their claims will be barred by the statute of limitations. The statute of limitations is six years. See N.J.S.A. 2A:14-1. We note that there is no statutory provision tolling the statute of limitations on the medical provider’s claim while an employee’s claim is pending in the Division. We are satisfied, however, that if a medical provider’s suit is transferred to the Division, as we hold today, the complaint will have been timely filed. In future cases in which the medical provider proceeds directly in the Division the statute of limitations will be tolled during the period that the matter is pending in the Division. Ibid. (emphasis added)

In Hawryluk, the Appellate Division transferred the medical provider’s claim to the Division and held that the statute of limitations for the claim was six years. In Univ. of Mass. Mem’l Med. Ctr. v. Christodoulou, 180 N.J. 334, 345 (2004), the Supreme Court overruled Hawryluk on the necessity of transferring the medical provider’s claim to the Division for a judgment of non-compensability before a Superior Court action could be filed, but did not alter its holding with respect to the statute of limitations. Although the Legislature subsequently amended N.J.S.A 34:15-15 to give exclusive jurisdiction to the Division for medical provider claims, eliminating the Superior Court option, there is no reason to suggest that the Legislature also intended to change the statute of limitations. The statute remains six years, as it does in all collection cases of a contractual or quasi-contractual nature.

A two-year statute would unfairly prejudice medical providers who rendered services to injured employees and were entitled to rely on the six-year statute / time period in managing collection activity on their unpaid accounts. It would deprive medical providers of their property interests without any basis in a duly enacted statute. It would also unjustly enrich insurance carriers who collected premiums to pay for patients’ medical bills, then deliberately underpay for services rendered to those 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.

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Tuesday, February 9, 2016

Dos & Don’ts of Consumer Debt Collection | Callagy Law

Please continue to read for important information regarding consumer debt collection.

After searching various sources, we have found many people have questions when it comes to business law. Written by Callagy Law’s litigation team, this blog will focus on many common questions and concerns surrounding legal matters. Our mission is to answer any litigation and business law questions.

You loaned a consumer money, you have a right to contact that consumer and collect that money, right? But now, you are the one being sued?! But, they owe you X amount of dollars, how can this be possible? How is this justice?

Unfortunately, many debt collectors find themselves in this predicament simply because they are unaware of what is proper and improper debt collection practice. You see, due to harassing and abusive debt collection practices in the past, debt collectors today need to be cautious of how and when the attempt to collect debts from consumers. In the late 70’s an Act was put in place to eliminate abusive and unfair debt collection practices. The Fair Debt Collection Practices Act (FDCPA) (15 USC 1692 et seq.), was designed to protect consumers from abuses in debt collection and protects debt collectors from unfair competition. However, the FDCPA does not apply to all debts; for example, commercial debts (debts owed for business purposes) are not protected by the Act. Further, the FDCPA only applies to the collection of debt incurred by a consumer primarily for personal, family, or household purposes. Debt collectors must be conscious of these provisions as the failure to comply with any of the provisions of the FDCPA could result in actual damages, punitive damages of up to $1,000.00 per individual action or up to $1,000.00 for each named plaintiff in a class action and an award to be divided among all members of the class of an amount up to $500,000.00 or 1 percent of the debt collector’s net worth, whichever is less, as well as attorneys fees and costs.

Additionally, it is important to understand that the defenses to violations of the FDCPA are limited. Thus, the best way for consumer debt collectors to avoid liability is to be aware of what is a fair debt collection practice under the FDCPA and any applicable state law as well. While many collectors are aware of the general rule that debt collectors may not use abusive or harassing conduct in their attempt to collect a debt, may not communicate with the consumer before 8 a.m. or after 9 p.m. and that a debt collector may not contact the consumer at his/her place of employment if the collector has reason to believe that the employer prohibits such communications or if there has been an attorney retained to handle the debt, many debt collectors are unaware that if a consumer refuses, in writing, to pay a debt or requests that the debt collector cease further communication, the collector must cease all further communication, except for the limited purpose to advise the consumer that the collection effort is ceased, inform the consumer that certain specified remedies ordinarily invoked may be pursued or, if appropriate, that a specific remedy will be pursued, and that mailed notices from the consumer are official when they are received by the debt collector. If you are unsure of whether you are abiding by the FDCPA, reading and understanding the Act is the first step. Once, you have reviewed the provisions of the FDCPA and assure that they are implemented and abided by it will be extremely difficult for a consumer to sustain an action against you. In sum, when it comes to debt collection, awareness of what is considered fair practice is the best way to avoid liability.

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Proper Use of Modifier 59 For Reimbursement | Callagy Law

PIP PRACTICE TIP: PROPER USE OF MODIFIER -59 FOR REIMBURSEMENT OF SERVICES THAT ARE “SEPARATE AND DISTINCT” FROM OTHER SERVICES BILLED ON SAME DATE

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.

It is important for medical providers to correctly use modifier 59 in order to receive reimbursement for codes that are indeed “separate and distinct” from other services billed on the same date of service. Modifier 59 is defined by the CPT Manual as follows:

“Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together, but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision/excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate, it should be used rather than modifier 59. Only if no more descriptive modifier is available, and the use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25.”

To summarize, modifier 59 is used to indicate a separate and distinct procedural service for surgical procedures, non-surgical therapeutic procedures or diagnostic procedures that were independent of other services performed on the same day, including, but not limited to the following:

Different session

Different site or organ

Separate excision/incision

Separate lesion

Separate injury.

The Medicare National Correct Coding Initiative (“NCCI”) promulgated edits, which contain pairs of CPT codes that generally should not be billed together by a provider for the same patient on the same date of service. Under certain circumstances, a provider may bill for two services in a NCCI code pair and include a modifier that would bypass the edit and allow both services to be paid.

Modifier 59 is one of over thirty modifiers that can be used to bypass an NCCI edit conflict. A modifier, however, cannot be appended to a CPT Code for the sole purpose of bypassing an NCCI edit if the clinical records do not justify its use. Modifier 59 is used to represent that a provider performed a separate and distinct procedure or service for a patient on the same day as another procedure or service. Modifier 59 should be attached to the secondary, additional, or lesser service in an NCCI code pair. Pursuant to the “Medicare Claims Processing Manual,” in order to properly bill with modifier 59, the provider’s documentation must show that the service was distinct from other services performed that day.

A common misuse of modifier 59 is when a medical provider uses it on the sole basis that the narrative description of the two codes is different. The two “different procedures” must be performed at separate anatomic sites or at a separate patient encounter on the same date of service in order to justify the use of modifier 59.

Notably, the treatment of contiguous structures in the same organ or anatomic region does not constitute treatment of different anatomic sites and should not be billed with a 59 modifier. For instance, arthroscopic treatment of structures in adjoining areas of the same shoulder constitutes treatment of a single anatomic site.

Modifier 59 should only be used in circumstances where no other modifier more appropriately describes the relationship of the two procedure codes. For example, if two procedures are performed on different sides of the body, modifiers RT (“right”) and LT (“left”) or another pair of anatomic modifiers should be used, not modifier 59.

In sum, modifier 59 is used appropriately in the following circumstances:

for different anatomic sites during the same encounter only when procedures which are not ordinarily performed or encountered on the same day are performed on different organs, or different anatomic regions, or in limited situations on different, non-contiguous lesions in different anatomic regions of the same organ;

when the procedures are performed in different encounters on the same day;

when two timed procedures are performed in different blocks of time on the same day;

for a diagnostic procedure which precedes a therapeutic procedure only when the diagnostic procedure is the basis for performing the therapeutic procedure;

for a diagnostic procedure which occurs subsequent to a completed therapeutic procedure only when the diagnostic procedure is not a common, expected or necessary follow-up to the therapeutic procedure.

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