Winning Legal Strategies for Combating A Prickly Problem "Sticking" New Jersey PIP Carriers

By Nicholas D. Bowers, Esq. and Ariel C. Brownstein, Esq.*

At an increasing rate, New Jersey medical providers, often chiropractors, are employing and/or partnering with acupuncturists. The effect of this activity has been a substantial increase in the amount billed per patient, per day, to PIP carriers in New Jersey for pain management care following an automobile accident. Should these PIP carriers be "stuck" with the bill? Not always.

Chiropractors frequently make "referrals" within the first few weeks of treatment to acupuncturists who treat patients at the same facility. A reason for the increase in acupuncture care is that chiropractic treatment is capped out at $99 per day, but not acupuncture. Under the recently amended New Jersey Fee Schedule, N.J.A.C. 11:3-29.4(m), most acupuncture treatment now falls under the increased daily cap of $105 per day—although an acupuncturist can avoid this cap altogether by simply not billing for acupuncture on the same dates as chiropractic care. Thus, when determining whether to pay benefits for acupuncture treatment, a PIP carrier's analysis should not stop at medical necessity. Additional winning legal defenses and strategies are available.

Initially, under personal injury protection law, a patient can only treat with an acupuncturist upon a referral from a licensed physician. N.J.S.A. 39:6A-4(a). The acupuncture regulations provide that the referral must contain a diagnosis and a pre-evaluation by the physician. N.J.A.C. 13:35-9.11(a). Additionally, an acupuncturist must prepare contemporaneous treatment notes that reflect a referral or diagnosis by a physician, as well as the name of the physician. If a proper referral was not provided before treatment commenced, no benefits are owed for all dates of service preceding an appropriate referral.

The referral also must be more than a generic form and must contain substantive medical findings regarding the claimant's diagnoses to direct the acupuncturist's care. For example, in Golden Flower Acupuncture a/s/o S.B. v. Travelers, NJ No. 1425373 (2012), the arbitrator found that failure to perform acupuncture pursuant to a sufficient physician referral and pre-evaluation was cause for denial of reimbursement, even though some or all of the acupuncture care billed for was pre-certified by the carrier. Additionally, the arbitrator found that the mere provision of an "Acupuncture Referral Form" was insufficient to establish compliance. Rather, the records must evidence that an actual physician evaluation occurred and that the pre-evaluation findings were reviewed by the acupuncturist.

The second key requirement for the lawful provision of acupuncture is that the patient must have provided prior informed, written consent. In other words, the risks of, and alternatives to, acupuncture must be reviewed with the patient before commencing treatment, and such a review must be evidenced via a signed writing under N.J.A.C. 13:35-9.11(b). Some of the risks associated with acupuncture include nerve damage, lung puncture, organ puncture and spontaneous miscarriage. If an informed consent form is not signed by a patient before acupuncture treatment commences, or the signed form insufficiently sets forth the applicable risks and alternatives, no benefits are owed. Moreover, patient testimony indicating that risks associated with acupuncture were not verbally explained will often support a denial, even where an otherwise acceptable form was executed.

An example of such a proposition can be found in the matter of CARE Center of South Jersey a/a/o J.C. v. Allstate, NJ No. 1331753 (2011). In that case, the arbitrator held that N.J.A.C. 13:35-9.11(b) was violated where the "Informed Consent to Treatment" form signed by the patient did not sufficiently outline the risks associated with acupuncture care and alternative treatment options available. The arbitrator also found that failure to comply with N.J.A.C. 13:35-9.11(b) would support denial of a claim for reimbursement, even though the care at issue was pre-certified. See also NJ Acupuncture a/s/o MD v. High Point, NJ No. 1434637 (2012) (arbitrator denied acupuncture provider's claim where the patient testified she was not advised of potential risks and complications, despite the fact that an executed "Informed Consent" form was found in the patient's medical file).

Finally, acupuncture claims are often defensible under the New Jersey Insurance Fraud Prevention Act (NJIFPA), N.J.S.A. 17:33A-1, et seq. Acupuncturists frequently bill for the rendition of their services on a single office visit via multiple CPT codes. Specifically, billing under CPT 97810 (acupuncture, initial 15 minutes) and 97811 (acupuncture, each additional 15 minutes, with re-insertion of needles) or 97813 (acupuncture with electric stimulation) and 97814 (acupuncture with electric stimulation, each additional 15 minutes, and re-insertion of needles) is common. The submission of billing under CPT 97811 and/or CPT 97814 requires an additional 15 minutes (30 minutes total) of patient contact, as well as "re-insertion of needles." See e.g., Eastern & Western v. State Farm Ins. Co. North-N.J., NJ No. 1285951 (2010) (wherein the Forthright arbitrator determined that "to bill . . . under CPT code 97814 there must be a re-insertion or repositioning of the needles. . . . [The] acupuncture records do[] not reveal any mention whatsoever about needle placement or re-insertion. As such, billing under CPT code 97814 is unsupported and is therefore denied.")

Thus, an acupuncturist cannot submit billing under CPT 97811 and/or 97814 in the absence of an additional 15 minutes of care, as well as the "re-insertion of needles." Acupuncture patients, however, commonly testify that treatment lasted no longer than 15 minutes in duration and that "re-insertion" of needles never occurred. As such, billing for acupuncture with needle re-insertion when such service was never actually provided, a violation of NJIFPA, is an effective defense to acupuncture claims. Further, as NJIFPA violations call for awards of treble damages to a successful plaintiff, improper billing under CPT 97811 and/or 97814, when documented via consistent patient testimony, will often support the filing of affirmative fraud litigation from both a legal and economic perspective.

With the increase in arbitration demands by acupuncturists in New Jersey, an aggressive, proactive approach to defense is both warranted and necessary. The specific approaches set forth in this article have proven highly effective in minimizing exposure to excessive acupuncture billing.

* Nick is an associate in our Philadelphia, Pennsylvania, office who can be reached at 215-575-2742 ndbowers@mdwcg.com. Ariel is an associate in our Cherry Hill, New Jersey, office who can be reached at 856-414-6075 or acbrownstein@mdwcg.com. ♦

Defense Digest, Vol. 19, No. 2, June 2013