Award of Dispute Resolution Professional. In Person Proceeding Information

Transcription

1 In the Matter of the Arbitration between NORTH JERSEY SURGERY CENTER A/S/O R.A. CLAIMANT(s), Forthright File No: NJ Proceeding Type: In Person Insurance Claim File No: Claimant Counsel: Massood & Bronsnick, LLC v. Claimant Attorney File No: Respondent Counsel: Harwood Lloyd, LLC Respondent Attorney File No: Accident Date: 10/31/2008 New Jersey Manufacturers Insurance Group RESPONDENT(s). Award of Dispute Resolution Professional Dispute Resolution Professional: David M. LaPorta Esq. I, the Dispute Resolution Professional assigned to the above matter, pursuant to the authority granted under the "Automobile Insurance Cost Reduction Act", N.J.S.A. 39:6A-5, et seq., the Administrative Code regulations, N.J.A.C. 11:3-5 et seq., and the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey of Forthright, having considered the evidence submitted by the parties, hereby render the following Award: Hereinafter, the injured person(s) shall be referred to as: R.A. A proceeding was conducted on: May 2, In Person Proceeding Information Claimant or claimant's counsel appeared in person. Respondent or respondent's counsel appeared in person. The following amendments and/or stipulations were made by the parties at the hearing: Not applicable. NJ Page 1 of 22

2 Findings of Fact and Conclusions of Law This matter arises out of a motor vehicle accident which occurred on 10/31/08. In rendering this decision I have reviewed the following documents submitted by Claimant: 1. Claimant s Demand with attachments; 2. Claimant s 4/30/14 submission with attached Exhibits A through H; 3. Claimant s 5/12/14 post hearing submission with attached Exhibits A and B; and 4. Claimant s 5/22/14 post hearing submission. Additionally, I have reviewed the following documents submitted by Respondent: 1. Respondent s 7/18/13 submission with attached Exhibits A through T; and 2. Respondent s 4/12/14 post hearing submission with attached Exhibits A through H. I also considered the oral argument of counsel on the date of hearing. This matter concerns a claim for facility fees relating to pain management procedures performed on 1/10/09, 1/31/09, 3/07/09, 3/28/09, 4/18/09 and 8/01/09 in the amount of $62,964. The following issues are presented: I. Whether Claimant s Demand with respect to dates of service 1/10/09, 3/7/09, 3/28/09, 4/18/09, and 8/1/09 is barred by the Doctrine of Collateral Estoppel? II. Whether the bill for date of service 1/31/09 is barred by the entire controversy doctrine? III. Whether Claimant s Demand should be dismissed due to Respondent s contention that the Claimant failed to file an internal appeal in accordance with Respondent s Decision Point Review Plan (DPRP)? IV. Whether Respondent properly denied payment for the non-emergency transportation billed by Claimant under CPT code A0100? V. Whether Respondent properly denied payment for CPT code J1030 as improper unbundling from CPT code 62310? VI. Whether Claimant properly7 billed its usual, customary, and reasonable (UCR) rate for CPT code J1030? No other issues have been identified by the parties and no other issues will be addressed herein. Respondent s Argument Respondent maintains that the Claimant failed to comply with the requirements of the appeals process as outlined in its DPRP. As a result, Respondent argues the Claimant has effectively rendered the assignment of benefits null and void, and the claims against NJM should be dismissed in their entirety. Respondent advised that the instant arbitration Demand is actually a second filing for the exact same services at issue. Specifically, Respondent advised that the claims at issue in this matter were the subject of a prior matter filed by the Claimant under Forthright case number , which was heard before DRP Riva in April of In support of this argument Respondent attached copies of the Claimant's prior Demand for Arbitration and Amended Demand for Arbitration. Respondent advised that in that prior matter, it submitted a pre-hearing arbitration statement (which statement was provided as an NJ Page 2 of 22

3 attachment) outlining Respondent's defenses, which included the provider's failure to appeal prior to filing the arbitration Demand. Based upon the arguments and evidence submitted, Respondent advised that DRP Riva denied all claims for the six dates of service at issue because the provider failed to appeal at least 21 days prior to filing the Arbitration demand. Respondent also attached a copy of DRP Riva s award. Respondent advised that approximately five months after DRP Riva rendered his decision, on 11/15/12, Claimant's counsel submitted a 104-page appeal request for the dates of service at issue in this matter. Respondent advised that 33 days later Claimant's counsel filed the instant Demand for Arbitration against NJM. Respondent argues that the instant matter is nothing more than the Claimant's attempt to "take a second bite out of the apple." It remains NJM's position that the provider failed to comply with the requirements of its appeals process as outlined in its DPRP. In that regard, Respondent points out that the appeal request cover page entitled "Post-Service Appeal" specifically states: "As a condition to filing an arbitration or litigation, a health care provider who has rendered services and accepted an assignment of benefit, or the insured, must submit a written request to appeal any and all disputes, including but not limited to any claims for unpaid medical bills for medical expenses, and for unpaid services not authorized and/or denied in the decision point review and precertification process... All requests for appeal submitted under this paragraph must include this form as the cover page, and must be faxed to NJM at (609) We will neither accept nor respond to submission that are sent to any other facsimile number or, that fail to include a fully complete Appeals Form..." Respondent points out that the 11/15/12 appeal request was signed and faxed to NJM by Claimant's counsel, and argues that Claimant's counsel is not "a health care provider who has rendered services and accepted an assignment of benefit." Therefore, Respondent argues that the 11/15/12 appeal request is not valid. Further, Respondent points out that the appeal request letter indicates that same was faxed to (973) , and argues that this is not the appropriate fax number designated for appeal requests. Respondent submits that Claimant's counsel was made aware of this requirement by way of the appeal request cover page entitled "Post-Service Appeal," which states that the appeal must be submitted to NJM at (609) Respondent also cites DOBI Bulletin No , Re: Interpretation of DOBI Rules on PIP Reimbursements in support of its argument. In addition, Respondent submits that the claims for date of service 1/31/09 should be dismissed based on the Entire Controversy Doctrine. Specifically, Respondent points out that the Claimant previously filed a Demand for Arbitration against NJM in the matter of North Jersey Surgery Center a/s/o R.A. v. NJM (Forthright case number ). Respondent notes that the attorney representing the Claimant in the prior matter is the same attorney representing the Claimant in the instant matter and points out that the prior matter heard by DRP Riva in April of 2012 involved claims for facility fees charged on dates of service 1/10/09, 3/7/09, 3/28/09, 4/18/09, 6/3/09 and 8/1/09. Respondent points out that Rule 4:30A, the Entire Controversy Doctrine, mandates the joiner of all claims and parties with a material interest in the litigation. Codgell v. Hospital Center, 116 N.J. 7 (1989). Also, Respondent argues that this doctrine is a preclusionary principle intended to prevent the fractionalization of litigation by requiring that all claims between the same parties, arising out of or relating to the same transactional circumstances be joined in a single action. Brown v. Brown, 208 N.J. Super. 372, (App. Div. 1986). The fundamental principle behind the inclusion policy of the NJ Page 3 of 22

4 Entire Controversy Doctrine is that the adjudication of a legal controversy should in one litigation in one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy. Codgell, 116 at 15. Respondent advised that although the bill for date of service 1/31/09 was outstanding long before the prior arbitration matter was heard before DRP Riva, same was not included in the prior matter. Respondent argues that the bill in question here was definitely ripe for arbitration months before the prior matter was even filed. Specifically, Respondent points out that the explanation of benefit (EOB) form for this date of service is dated 3/24/09, which is approximately 7 months before Claimant's counsel filed the prior arbitration Demand. Respondent argues that the Claimant's counsel had ample opportunity to include all bills at issue in the prior matter; however, he failed to do so. Respondent submits that the bill for date of service 1/31/09 should have been included in the prior arbitration claim, and because same was not, the claims must now be denied based on the Entire Controversy Doctrine. I have also considered the prior DRP decisions relied upon by Respondent in support of its argument regarding the Entire Controversy Doctrine. Further, Respondent argues that the transportation services billed under CPT A0100 by Claimant for dates of service 1/31/09, 3/7/09, 3/28/09 and 4/18/09 are not eligible for reimbursement. Respondent submits that these services are not eligible for reimbursement, as per the fee schedule regulations regarding same. Respondent submits that the Claimant has not produced a receipt or proof that such transportation was provided to the assignor and argues that, absent this documentation, the request for reimbursement of transportation should be accordingly denied. I have also considered the prior DRP decision cited by Respondent in support of this argument. Respondent submits that many Surgical Centers advertise their "complimentary" car service on their websites for those patients who are unable to secure their own transportation, either through a family member or trusted adult. Respondent advised that website information for Hackensack Surgery Center, Rockland and Bergen Surgery Center and Surgical Center of Burlington County indicates that these facilities all offer complimentary "door to door" transportation. Finally, Respondent points out that the facility used a temporary HCPCS code to report the nonemergency transportation code A0100. Respondent notes that at the bottom of the page it is noted that this code is not covered by Medicare and points out that the DOBI has stated that it follows the Medicare provisions regarding reimbursement to surgical centers for services provided at their facilities. As such, Respondent submits that the facility's billing for this code is not eligible for reimbursement. Respondent also argues that the claims for payment for CPT J1030 billed on 1/31/09, 3/07/09 and 4/18/09 should be denied due to impermissible unbundling according to the American Medical Association (AMA) CPT Guidelines and N.J.A.C. 11:3-29.4(g). Respondent contends that Claimant improperly charged for Depo-Medrol injection code J1030 in conjunction with cervical spine epidural steroid injection code on the 1/31/09, 3/7/09 and 4/18/09 dates of service and that same constitutes improper unbundling. Respondent argues that CPT J1030 is not separately reimbursable when reported with CPT pursuant to N.J.A.C. 11:3-29.4(g). That is, Respondent argues that according to the AMA CPT guidelines, CPT represents a cervical spine injection of diagnostic or therapeutic substances (including anesthetic, antispasmodic, opioid, steroid, other solution). As such, Respondent argues that NJM appropriately denied same as unbundling and included in the primary procedure and that the claims for CPT J1030 against NJM should be denied. NJ Page 4 of 22

5 Respondent advised that it inadvertently reimbursed the Claimant for CPT J1030 on the 1/31/09 and 3/7/09 dates of service. Should Claimant's counsel argue that NJM cannot now deny payment for date of service 4/18/09, Respondent cites the case of Knorr v. Smeal, 178 N.J. 169, 177 (2003) wherein the Court held that waiver requires voluntary and intentional relinquishment of a known right. Respondent thus submits that a finding should be made that it did not relinquish its known right to deny CPT J1030 on the basis of impermissible unbundling by making two prior payments for the same service in error. Respondent contends that it properly denied payment for the facility fees relating to the IDET procedure performed on 8/1/09 based on the outcome of an independent medical examination (IME) conducted by Dr. Robert Fernand. Respondent did advise, however, that DRP Kincade determined that medical necessity for the underlying procedure had been established by the treating physician in the matter of Institute for Diagnosis & Treatment of Pain a/s/o R.A. v. NJM (Forthright case number ). Finally, Respondent argues that Claimant's charges in this matter are excessive and that it has failed to prove that the billing in question represents its UCR rate. In that regard Respondent argues that the carrier cannot be compelled to pay more than a "reasonable" amount for each UCR code awarded. Respondent thus submits that it appropriately reimbursed the Claimant for dates of service 1/10/09, 1/31/09, 3/07/09 and 4/18/09. Respondent argues that the Claimant has failed to prove that they are entitled to be paid their full billed amount, and as a result nothing further should be awarded for any of the UCR codes at issue. With respect to the payments made, Respondent advised that it consulted and relied upon the Ingenix HIAA and the Ingenix Healthcare Common Provider Coding System (HCPCS) national databases of UCR fees as permitted by DOBI and the PIP regulations, to determine the amount to be paid to the provider. Respondent further submits that of all of the commercial databases used by carriers to determine UCR values, the HIAA database is considered to have the highest reimbursement rate for UCR codes. In support of this argument, Respondent relies on DOBI Bulletin No , Re: Interpretation of DOBI Rules on PIP. Respondent further submits that the Claimant has not provided sufficient evidence to enable the DRP to conclude that the carrier did not follow the correct process and/or that the carrier's determination of the reasonableness in this case was incorrect. With regard to the 1st right knee injection performed on 1/10/09, Respondent points out that Claimant charged $7, for CPT and $1,575 for CPT Respondent advised that based on the determinations of a nurse audit specialist, NJM allowed $ for CPT and $ for CPT 77003, subject to co-pay and deductible. In support of this argument Respondent attached copies of Nurse Sandra Wittrien's audit report dated 1/27/09 and the Ingenix HIAA data. Additionally, Respondent contends that it should be well established by now that the professional and technical components for diagnostic testing have been reimbursed based on a 40/60 proportioned fee pursuant to the NJ fee schedule and AMA/CPT guidelines for a very long time. In this case, Respondent submits that the facility provided the technical component of CPT 77003, and therefore would only be entitled to 60% of the global amount for each radiological procedure. Thus, Respondent advised that while it reimbursed the Claimant at the full UCR amount of $300.00, the Claimant should have only received $180.00, or 60% of $ Respondent thus submits that it should be entitled to a $ credit towards any amount that is determined to be owed to the provider in this matter. In response to Claimant s appeal, Respondent points out that Nurse Wittrien explained that the amounts paid for date of service 1/10/09 were based on NJM's usual, customary and reasonable rate for the NJ Page 5 of 22

6 geographical region in which the service was performed (Zip Code is assigned to Region 3). Nurse Wittrien explained a breakdown of how the Claimant arrived at the charges was needed in order to justify the reasonableness of the Claimant's fee. Respondent submits that the breakdown should include an itemized bill including vendor invoices for the supplies and medications provided for this date of service. Respondent also points out that the Claimant was asked to provide NJM with a copy of all EOBs from all carriers for the month of January 2009 specific to the codes in question. Without such documentation, Nurse Wittrien explained that the bill could not be considered for additional payment. To date, Respondent submits that it has received no record of the requested additional documentation. Regarding the cervical epidural steroid injections (CESI) performed on 1/31/09 and 3/7/09, Respondent advised that according to the bills provided with the arbitration Demand, NJM was charged $6, for CPT 62310, $1, for CPT and $50.00 for CPT J1030. However, based on the determinations of a nurse audit specialist, Respondent advised that it allowed $1, for CPT 62310, $ for CPT and $11.00 for CPT J1030. In support of this argument Respondent attached copies of Nurse Wittrien's audit report dated 4/10/09 and the Ingenix HIAA data. With respect to CPT code 77003, Respondent maintains that the facility provided the technical component of CPT 77003, and therefore would only be entitled to 60% of the global amount for each radiological procedure. Respondent notes that it reimbursed the Claimant at the full UCR amount of $300.00, but contends that Claimant should have only received $180.00, or 60% of $ As argued above, Respondent submits that it is entitled to a $ credit towards any amount that is determined to be owed to the provider in this matter. With regard to CPT J1030, Respondent advised that Nurse Wittrien relied upon the Ingenix HCPCS national database to determine the appropriate reimbursable fee. Regarding the 2nd right knee injection performed on 3/28/09, Respondent advised that according to the bills provided with the arbitration demand, NJM was charged $8, for CPT and $1, for CPT Based on the determinations of a nurse audit specialist, Respondent advised that it allowed $ for CPT and $ for CPT In support of this argument Respondent attached copies of Nurse Wittrien's audit report dated 4/10/09 and the Ingenix HIAA data. For CPT code 77003, as previously argued, Respondent submits that the facility provided the technical component of CPT 77003, and therefore would only be entitled to 60% of the global amount for each radiological procedure. In that regard, Respondent points out that it reimbursed the Claimant at the full UCR amount of $ and argues that Claimant should have only received $180.00, or 60% of $ Thus, Respondent argues that it should be entitled to a $ credit towards any amount that is determined to be owed to the provider in this matter. With regard to CPT J1030, Respondent once again noted that Nurse Wittrien relied upon the Ingenix HCPCS national database to determine the appropriate reimbursable fee. Regarding the CESI performed on 4/18/09, Respondent advised that according to the bills provided with the arbitration demand, NJM was charged $6, for CPT and $1, for CPT However, based on the determinations of a nurse audit specialist, Respondent advised that it allowed $1, for CPT and $ for CPT In support of this argument Respondent attached copies of Nurse Donna L. Tsafantakis's audit report dated 7/22/09 and the Ingenix HIAA data. NJ Page 6 of 22

7 For this date of service Respondent once again argues that the facility provided the technical component of CPT 77003, and therefore would only be entitled to 60% of the global amount for each radiological procedure. Respondent thus contends that it properly reimbursed the Claimant at $180.00, or 60% of the determined UCR ($300). With respect to the IDET procedure performed on 8/1/09, Respondent advised that according to the bills provided with the arbitration demand, NJM was charged $24, for CPT and $1, for CPT Respondent argues that Claimant s charges are excessive and submits that should it be determined that Claimant is entitled to payment, then Respondent cannot be compelled to pay more than a "reasonable" amount for each UCR code awarded. With regard to the UCR, Respondent set forth the following argument: As was set forth above, the amount which is deemed to be a reasonable amount can be obtained from a national database of UCR fees such as Wasserman's Physician's Fee Reference. The use of Wasserman data is especially noteworthy not only because it was specifically referenced by DOBI in the new fee schedule regulation, but also because the Medical Society of New Jersey, which was one of the parties to the suit that sought to overturn the new fee schedule, told DOBI as part of the Notice and Comment to the new fee schedule regulations that they had hired an economist who had studied the NAF PIP arbitration awards by the DRPs for UCR cases and had concluded that the amount awarded by the DRPs in these UCR case correspond to the 75th percentile of Wasserman's database. (See, Notice and Comment to N.J.A.C. 11: filed August 31, 2007 at pages ) Both DOBI and the Appellate Division in the fee schedule opinion have indicated that Wasserman can be used as evidence of what is a reasonable amount of compensation for codes that are not in the fee schedule. Wasserman also applies a geographic multiplier based on the provider's zip code, which allows for additional payment when applicable based on the geographical area where the services were provided. The multiplier in this case is for the 076 region, which is calculated by the amounts allowed for the individual procedure code (Exhibit T). Respondent further notes that CPT code was performed at the time when the "new" fee schedule was stayed by the Court and that said code is listed on the "new" fee schedule. While Respondent acknowledges that the new fee schedule is not binding on the DRP for that code because it was stayed at the time, it is submitted that the DRP can consider the amount allowed for this code under the new DOBI fee schedule as evidence of what a reasonable amount is for a particular procedure. Respondent submits that to the extent that DOBI allows a carrier to determine the reasonableness of a particular CPT code by referencing a database, the current New Jersey PIP fee schedule is in effect such a database and can be referenced to ascertain what the reasonable amount would be for that code. Respondent argues that the amount being sought by the provider in this case is simply not reasonable when compared to both the Wasserman database and the amount that would be allowed for that code in the "new" fee schedule. In that regard, Respondent provided the following chart demonstrating the difference between the Claimant's billed fees, the amount allowed by Wasserman and the "new" fee schedule for the same code: Date of Service and CPT Code Claimant's Billed Amount Wasserman's Fee Data (2009) ASC "New" NJ PIP Fee Schedule Amount (Effective 8/10/09) NJ Page 7 of 22

8 D.O.S. 8/01/ $24,150 $4, $5, TC $1,811 $ Totals: $25,961 $6, $5, Based upon the above, Respondent argues that the reasonable amount for each the UCR codes at issue in this case would be the lesser of the amounts as determined by Wasserman or the amount in the "new" fee schedule, rather than the amounts billed by the Claimant. Accordingly, Respondent argues that if some or all of the UCR codes at issue in this case are awarded, then the amount awarded for those codes should not exceed the lesser of the amounts that Wasserman and/or the "new" fee schedule allows for each code. I have also considered Respondent s argument regarding attorney s fees and costs. In its post hearing submission Respondent points out that 2 days before the scheduled arbitration hearing, Claimant's counsel requested that Respondent "engage in good faith dealing" by providing a list with the corresponding EOBs for all dates of services that were denied and/or partially paid. Respondent further pointed out that once this information was provided, Claimant's counsel intended to amend the Demand to include any additional dates that were not included in the Demand for Arbitration, which was filed on 12/18/12 more than a year ago. Respondent maintains that this request is completely beyond the scope of the arbitration Rules. That is, Respondent points out that Claimant that brought this instant matter to Forthright for arbitration, and that Respondent was then required to submit a defense to the Claimant's demands. Respondent thus submits that it is in no way required to "advise the claimant" if there are additional dates which are in dispute for the Claimant and that it is not the insurance carrier's burden to advise the Claimant as to which dates of service it should be disputing. Respondent reiterates its argument that Rule 4:30A, the Entire Controversy Doctrine, mandates the joiner of all claims and parties with a material interest in the litigation pursuant to Codgell v. Hospital Center, 116 N.J. 7 (1989). Respondent argues that this doctrine is a preclusionary principle intended to prevent the fractionalization of litigation by requiring that all claims between the same parties, arising out of or relating to the same transactional circumstances be joined in a single action according to Brown v. Brown, 208 N.J. Super. 372, (App. Div. 1986). Also, Respondent argues that the fundamental principle behind the inclusion policy of the Entire Controversy Doctrine is that the adjudication of a legal controversy should be in one litigation in one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy. Codgell, 116 at 15. NJM reiterates its position that pursuant to the Entire Controversy Doctrine, the Claimant is required to include all of the bills that are statutorily overdue and dispute up to and until the date of the arbitration hearing, which in this case occurred on 5/02/14. Respondent argues that the doctrine requires that all claims, even disparate ones, be resolved in a single proceeding as long as the same parties are involved. NJM reiterates its position that should there be any additional dates of service which the Claimant is disputing, then it is the Claimant s burden to identify and include these dates of service in this instant Demand or be barred from filing a second arbitration Demand by reason of the Entire Controversy Doctrine. NJ Page 8 of 22

9 With regard to Claimant's counsel s argument that NJM failed to supply proof that DOBI approved its DPRP containing a Post-Service Appeal requirement that was in effect/covered the policy period of 10/31/08, Respondent points out that Claimant's counsel submitted, with his 11/15/12 "Post-Service Appeal" request, an Assignment of Benefits form dated 9/14/12. Respondent submits that, as such, Claimant was required to comply with the terms of NJM's appeals process which was in effect at the time Claimant's counsel submitted his 2012 appeal and new Assignment of Benefits. Additionally, Respondent advised that it revised its DPRP overtime, and that same can be accessed online at Respondent submits that this website will always give insureds and providers access to the most current DPRP that is in effect. Respondent argues that this is the website that Claimant's counsel used to obtain NJM's DPRP that went into effect January Respondent submits that this is clearly identified in the bottom left-hand corner as "AC-111)18 (1/12)" and "AC-203 (1/12)." Also, Respondent advised that "Exhibit G" of NJM's initial pre-hearing arbitration submission contains the DPRP that went into effect January 2013, documented in the bottom left-hand corner as "AC-PIP 19 (01/13)," which Respondent s counsel advised that he obtained from the aforementioned website on 7/18/13 the date that the initial submission was prepared/submitted. By way of the EOBs, Respondent submits that the Claimant always had complete access to NJM's DPRP, which outlined the requirements of NJM's appeals process. Respondent points out that the second page of the provider's EOBs state the following: IMPORTANT! PLEASE READ! Unless emergent relief is sought, the health care provider must utilize the reconsideration and appeals process prior to filing arbitration and litigation. Information on this process and other requirements are included in NJM's Decision Point Review Plan Requirements, which may be obtained at or by contacting the Claims Representative (See Exhibit C) I have also reviewed the 2 prior DRP decisions provided by Respondent in which the DRPs found that the wording on the back of an EOB adequately put the provider on notice in regard to NJM's requirement to file an appeal prior to filing for arbitration. Respondent also relies on a copy of a recent rider to an Order issued in USA Chiropractic a/s/o J.M. v NJ Re-Ins. Co & NAF/Forthright Solutions. Respondent points out that the Judge in that matter upheld the decision by DRP Sacco to deny the Claimant's demand for arbitration for their failure to comply with the internal appeals process in Forthright case number Respondent points out that the Judge in the Order to Show Cause (OTSC) matter ultimately found that "DRP Sacco appropriately held that the notifications provided in Defendant's EOB's, were sufficient to support dismissal based on a failure to file an internal appeals process." Respondent reiterates that Claimant's counsel is relying upon a new Assignment of Benefits dated 9/14/12 as well as an 11/15/12 appeal request that was signed and faxed to NJM by Claimant's counsel. Respondent thus reiterates its argument that Claimant's counsel is not "a health care provider who has rendered services and accepted an assignment of benefit", and that the 11/15/12 appeal request is not valid. Respondent also again points out that the appeal request letter indicates that same was faxed to (973) and that same is not the appropriate fax number designated for appeal requests. Respondent maintains that Claimant's counsel was made aware of this requirement by way of the appeal request cover page entitled "Post-Service Appeal," which states that appeal must be submitted to NJM at (609) I have also reviewed the prior arbitration awards relied upon by Respondent wherein it NJ Page 9 of 22

10 was determined that the providers' "efforts to appeal" were ineffective and did not prove compliance with the appeal process. Regarding Claimant s argument that NJM is estopped from raising the Entire Controversy as a defense because the DRP in the prior matter, filed under Forthright number , never made a decision on the merits as the only issued determined by the DRP was the validity of the appeal, Respondent submits that Claimant's counsel is incorrect. Respondent submits that the fact remains that Claimant's counsel filed a prior Demand for Arbitration and failed to include all claims, which were statutorily overdue at that time. As previously noted in NJM's initial pre-hearing submission, Respondent points out that payment for date of service 1/31/09 was denied in March 2009 approximately seven months before Claimant's counsel filed the prior arbitration Demand. Respondent thus repeats its argument that Claimant's counsel had ample opportunity to include all bills at issue in the prior matter and failed to do so. Claimant s Argument With regard to the Entire Controversy Doctrine, Claimant submits that although there is no legal obligation for the Claimant to amend the Demand for arbitration to include dates of service that were not ripe at the time the Demand was filed, the Claimant advised that it prefers to include all dates of service in the within arbitration if the insurance carrier has no objection. Claimant submits that the Entire Controversy Doctrine only requires a Claimant to include those dates of service that have accrued at the time of the filing of a Complaint citing Circle Chevrolet v. Giordano. 142 N.J. 280, 294 (1995), K-Land v. Landis Sewerage, 173 N.J. 59, 70 (2002) and Halleran & Ciesla, 142 N.J. 280, 294 (1995). Claimant further argues that the facts of this case confirm that Respondent is estopped from raising the entire controversy as a defense. In that regard, Claimant points out that on 12/19/12, Claimant filed a new Demand for arbitration and has obtained a new A013. Also, Claimant submits that in the previous matter North Jersey Surgery Center a/s/o R.A. v. NJM, (NJ ) DRP Riva never made a decision on the merits and that the only issue determined by the DRP was the validity of the appeal. Specifically, DRP Riva determined the appeal was insufficient and therefore the case could not proceed. As a result, Claimant advised that it obtained a new Assignment of Benefits (AOB), and contends that it submitted a valid appeal complying with NJM s DPRP. Claimant advised that after it re-filed Respondent NJM still denied payment. Based upon the fact that NJM still refused to issue payment despite that Claimant obtained a new A013 and re-submitted the appeals, Claimant argues that it was entitled to re-file. Further, Claimant points out that DRP Kincade determined in the treating physician's case, Institute for Diagnosis & Treatment of Pain a/s/o R.A. v. NJM (NI ) that the treatment rendered on 6/3/09 and 8/1/09 was medical necessary. Therefore, Claimant argues that when it obtained a new AOB and resubmitted the appeals, Respondent had the opportunity to issue payment to prevent unnecessary litigation. With regard to Respondent s argument that since this provider failed to file an internal appeal prior to filing the within arbitration Demand with Forthright, this matter should be dismissed, Claimant argues that Respondent is incorrect based upon Claimant s contention that NJM failed to comply with New Jersey Administrative Code requirements governing Internal Appeals, including N.J.A.C. 11:3-4.7(a)(1), N.J.A.C. 11:3-4.7( c) (6), and N.J.A.C. 11:3-4.7( d) (1-9). Specifically, Claimant points out that this accident occurred in 2008 and argues that NJM has not supplied proof that the New Jersey Department of Banking and Insurance (the DOBI) approved of the DPRP requiring that a "Post Service Appeal" be NJ Page 10 of 22

11 filed prior to filing for PIP arbitration with Forthright (formerly known as the National Arbitration Forum). Claimant also argues that NJM has not supplied any proof that the DOBI approved of a DPRP containing a Post Service Appeal requirement that was in effect/covered the policy period of 10/31/08. Rather, Claimant submits that NJM supplied a DOBI approval of NJM's DPRP that is dated 10/01/10, 2 years after the date of this accident. Further, Claimant argues that NJM s own DOBI approval states that this version of their DPRP does not go into effect until 10/1/10 while noting that the dates of service at issue were performed in Further, Claimant maintains that NJM has not supplied any dated, addressed copy of their DPRP specifically addressed to Claimant and to the patient. Rather, Claimant submits that the only item that Respondent has attached in their pre-hearing submissions is a copy of a form DPRP that purports to take effect on 10/1/10, 2 years after the date of this accident and over 1 year after the dates of service at issue in this arbitration, is undated, and not addressed to any party. Based upon this argument, Claimant argues that Respondent has failed to show that they complied with the "notice" provisions of the above cited New Jersey Administrative Code. Claimant argues that before an insurance company may rely upon the lack of compliance with an internal appeal requirement to seek to void and negate the viability of the assignment, the insurance company must first establish transmission, and thereby confirm notice, of either the DPRP or an informational materials correspondence. Claimant submits that the above regulations provides that the DPRP or an informational materials correspondence, both of which are to be approved by the Commissioner, to the patient, insured, and the provider, are the methods of notice acknowledged within the Administrative Code. Claimant submits that unless either can be established, the insurance company does not have standing to assert a lack of compliance with the DPRP and therefore cannot avail themselves to any penalties or restrictions that arise therefrom. Claimant thus argues that the DPRP and an informational material correspondence are the only 2 vehicles that are available in the regulations to provide this notice. Claimant maintains that the informational materials, just like the DPRP, need to be on forms approved by the Commissioner. Absent proof of same, Claimant argues that there cannot be adequate regulatory compliance or notice of the internal appeal provided to the Claimant and injured person and therefore the Respondent does not have standing to assert a lack of compliance. Claimant submits that N.J.A.C. 11:3-4.7(d) clearly states that informational materials for policyholders, injured persons, and providers shall be on forms approved by the Commissioner, and shall include at a minimum the nine subsections, 1-9, of subsection (d). Claimant argues that there is no evidence submitted by Respondent that North Jersey Surgery Center was provided with either the DPRP or the decision point review informational correspondence or that the patient and this provider was provided with the DPRP or decision point review informational correspondence. With regard to Respondent s argument that the EOB constitutes adequate notice in compliance with the above New Jersey Administrative Code requirements concerning notice, Claimant argues that an EOB is not adequate notice of the internal appeals requirement as it does not fall within the only two regulatory approved and accepted methods of notice of the DPRP requirements. I have also reviewed the prior DRP decision wherein the DRP ruled that an EOB from Respondent NJM did not constitute "notice" of appeal procedures are required under New Jersey Administrative Code. NJ Page 11 of 22

12 Additionally, Claimant argues that it did indeed submit an appeal. Claimant argues that Respondent s position that the provider did not appeal because the appeal was allegedly not faxed to the fax number for "Post Service Appeals" is patently absurd and not in keeping with the edict issued in Bulletin wherein Commissioner Considine specifically defines the appeals process as a prerequisite to arbitration. Claimant submits that if that is in fact a reasonable interpretation of the administrative code then there can be no dispute that Claimant substantially complied with the appeals process and cannot be barred from arbitration, citing Casinelli v. Manlapus, 357 N.J. Super. 398 (App. Div. 2003), N.J.S.A. 2A:14-2, 39:6A-8 (a), and Mayfield v. Community Medical Associates, P.A., 335 N.J. Super. 198, 762 A.2d 237 (2000). Claimant argues that all of the elements of Mayfield, Supra, are met in this case, which include: (1) the lack of prejudice to the defending party, (2) a series of steps taken to comply with the statute or rule involved, (3) a general compliance with the purpose of the statute or rule (4) a reasonable notice of petitioner s claim, and (5) a reasonable explanation why there was not a strict compliance with the statute or rule. Specifically, Claimant submits that it did in fact submit an appeal prior to filing the Demand for arbitration and thereby providing reasonable notice of its claim for benefits. Claimant submits that NJM had notice of Claimant's dispute and did not respond and that Claimant's conduct was in accordance with generally accepted interpretation of the internal appeals regulation in effect at the time the appeals were submitted. Claimant argues that NJM has not been prejudiced in any way and submits that the doctrine of substantial compliance is an equitable one which is utilized to avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute's underlying purpose, citing Galik v. Clara Maas Medical Centers 167 N.J. 341 (2001). Claimant also cites the case of Anske v. Borough of Palisades Park, 139 N.J. Super. 342, 347 (App. Div. 1976) to argue that the doctrine of "substantial compliance" serves the purpose of alleviating the hardship and unjust consequences which attend technical defects of otherwise valid claims. Also, Claimant cites Lebron v. Sanchez, 407 N.J. Super. 204, 216 (App. Div. 2009) to argue that "Substantial Compliance" means that a notice has been given in a way, which though technically defective, substantially satisfies the purposes for which notice of claims are required. I have also considered the prior DRP decision relied upon by Claimant with respect to this argument. In the within present matter, Claimant alleges that Respondent did not raise the issue of alleged "deficiency-failure" of the appeals until their pre-hearing submission of 7/18/13, almost 5 years after the date of accident, 7 months after the filing of the within arbitration Demand, and 4 years after the dates of service at issue. Further, Claimant argues that Respondent never responded to the appeal filed by Claimant advising that the "Post Service Appeal" was faxed to the alleged incorrect fax number, i.e., that the appeal was (allegedly) deficient. Claimant posits that if Respondent felt that the appeal was deficient in that it was faxed to the claimed incorrect fax number, how is Claimant to know if Respondent does not advise Claimant, just as in the prior DRP decision. Claimant argues that if Respondent felt the appeal was deficient, Respondent should have responded to the appeal and stated same that the appeal was faxed to the incorrect fax number, and not waited until PIP arbitration was filed, and have counsel in a pre-hearing submission raise the issue for the first time. Claimant argues that Respondent should have notified the Claimant upon receipt of the appeal and failed to do so. Based upon this reasoning, Claimant submits that Respondent is now estopped from raising appeal as a defense for their failure to timely notify the medical provider of same. In support its position Claimant relies on the Order entered by the Honorable Ralph DeLuccia in the matter of Napoleon Valdez, MD a/s/o E.T. v. NJM insurance, Docket no. PAS-L In that matter Claimant advised that Judge DeLuccia, J.S.C. vacated an arbitration award which dismissed Dr. NJ Page 12 of 22

13 Valdez's arbitration for lack of appeal because the first time the insurance carrier raised same was after the arbitration was filed and thereby severely prejudicing the medical provider. Claimant points out that Judge DeLuccia held that if an insurance carrier did not raise the appeal issue timely, they are precluded from asserting same as a basis to deny the claim. Further, Claimant argues that the Demand in this matter is not barred by the doctrine of collateral estoppel. Specifically, Claimant stated that the facts in this case are as follows: On or about 9/25/09, this firm filed a demand for arbitration on behalf of North Jersey Surgery Center for patient [R.A.] for dates of service 1/10/09-8/1/09. This matter proceeded to arbitration on 4/13/12 before DRP Riva. In a nutshell, DRP Riva found that North Jersey Surgery Center failed to abide by NJM's internal appeal requirements specifically for dates of service 1/10/09, 3/7/09, 3/28/09, 4/18/09 and 8/1/09 and thus voided North Jersey Surgery Center's assignment of benefits. There was no decision on the merits. It is comparable to a complaint being dismissed without prejudice because of procedural deficiencies. The claimant then rectified those deficiencies by filing an appeal. MY REASONING - THERE IS NO DISMISSAL WITHOUT PREJUDICE IN FORTHRIGHT. Respondent's own decision point review plan specifically renders an assignment void when the medical provider fails to appeal. NJM's DPRP allows for a medical provider to re-file a demand for arbitration. Adoption of counsel's position leaves the medical provider without any recourse if their claim is dismissed based upon a procedural deficiency. North Jersey Surgery Center is not by any means barred by the entire controversy doctrine. There was no decision on the merits in the previous matter. North Jersey Surgery Center corrected all deficiencies by submitting a new appeal. When NJM failed to pay, North Jersey Surgery Center simply proceeded to arbitration which is allotted by NJM's DPRP. Procedural deficiencies, once corrected, do not preclude a medical provider from re-filing a demand for arbitration. North Jersey Surgery Center corrected their procedural deficiencies and obtained a new assignment of benefits from the patient. (Exhibit B) On 11/15/12 North Jersey Surgery Center then filed an underpayment appeal by fax (Exhibit C). It is important to note rather than file an order to show cause in superior court to vacate the arbitration award claimant resubmitted North Jersey Surgery Center's appeal for the adjuster to review. A review of same is attached hereto as Exhibit C and also as Exhibit F in respondent's 7/18/13 pre-hearing submission. On 12/19/12 North Jersey Surgery Center initiated a new demand (NJ ) for arbitration with Forthright. On 1/14/13 NJM advised the medical provider that "they are in receipt of appeal dated 11/15/12 regarding dates of service 1/10/09-8/1/09 and have reviewed all supporting documentation submitted with your appeal and our position remains the same" (Exhibit G). Furthermore, NJM's defense counsel further asserts that claimant's 11/15/12 appeal is not valid. Respondent states the appeal letter faxed to (609) is not the appropriate fax number designated for appeal requests. However, claimant would like to point out that the DPRP respondent seeks to rely upon is not the DPRP in effect at the time the automobile accident occurred. The dates of service in issue are in 2009 and the accident date is October Clearly, the year of the accident is the year of the controlling policy. Claimant request that NJM provide a copy of the policy of insurance in effect in 2008 that was issued to [R.A.]. Therefore, respondent's assertion that the fax number for the appeal was incorrect is without merit. To date, respondent has not even submitted the correct the DPRP in effect at the time of automobile accident. NJ Page 13 of 22

14 Clearly, the arbitration award issued by DRP Riva cannot be considered a final award because the arbitrator failed to issue a decision on all issues presented in accordance with N.J.A.C. 11:3-5 (6)(d). The arbitrator's failure to issue a decision on all issues presented also demonstrates an imperfect execution of his power, thereby subjecting the arbitration awards to de novo review pursuant to N.J.S.A. 2A:2A-13(c) 3 and 4. The arbitrator committed prejudicial error in applying the law to the issues and facts presented, the arbitration award should be vacated pursuant to N.J.S.A. 2A: 2A- 13(c) 5. With regard to the medical necessity for the treatment rendered on date of service 8/1/09, Claimant relies upon DRP Kincade's decision in the treating physician's case, Institute for Diagnosis & Treatment of Pain a/s/o R.A. v. NJM (NJ ) where she stated: "I am persuaded by the weight of the credible medical evidence that the cervical discography and disc decompression were medically reasonable, necessary, and related to the automobile accident". Based upon the above, Claimant argues that medical necessity is not an issue for date of service 8/1/09 and the only issue remaining is Claimant's usual customary rate. In support of its UCR rate Claimant enclosed the following: CPT code EOB from First Trenton issuing payment to North Jersey Surgery Center in the amount of $7, (Exhibit I); 2. EOB from Encompass issuing payment to North Jersey Surgery Center in the amount of $7, (Exhibit I); CPT code EOB from State Farm issuing payment to North Jersey Surgery Center for CPT code in the amount of $1, (Exhibit J); 4. EOB from State Farm issuing payment to North Jersey Surgery Center for CPT code in the amount of $1, (Exhibit J); 5. EOB from Geico issuing payment to Surgicare Surgical Associates for CPT code in the amount of $1, (Exhibit J); 6. EOB from. Horizon issuing payment to Surgicare Surgical Associates for CPT code in the amount of $1, (Exhibit.1); 7. EOB from Hanover Insurance issuing payment to North Jersey Surgery Center for CPT code in the amount of $1, (Exhibit 3); 8. EOB from State Farm issuing payment to North Jersey Surgery Center for CPT code in the amount of $1, (Exhibit J); CPT code Arbitration award rendered by DRP Farman in the matter of North Jersey Surgery Center a/s/o H.E. v. Liberty Mutual JNJ ) see page "6" wherein DRP Fannon found the EOBs and other documents established North Jersey Surgery Center a reasonable rate of NJ Page 14 of 22