Chiropractors from across the Commonwealth are reporting a disturbing trend. Insurance companies are refusing to pay chiropractors for radiological procedures in cases governed by the Motor Vehicle Financial Responsibility Law (Act 6). They claim that since Medicare does not pay for radiological procedures by chiropractors, Act 6 does not require them to do so.

While this issue has not been the subject of a binding appellate decision in Pennsylvania, the better view is that Section 69.21 of the Insurance Code requires payment for necessary procedures within a provider’s scope of practice even if he would not be paid by Medicare. If an insurance company is refusing to pay you for radiological procedures, you do not need to accept that determination. Contact my office for information on how you can protect your rights.

The U.S. District Court in the case of Robin Perkins v. State Farm addresses issues inquired about by many providers. The first issue addressed was bad faith.

Robin Perkins was struck by a car while she was walking in a grocery store parking lot. She was insured by State Farm (her motor vehicle insurance policy covered her even though she was a pedestrian) who refused to pay for her chiropractic care based on a peer review performed by another chiropractor well known to do this type of work.

The Court said, and it is correct, that there has been conflicting results in Pennsylvania as to whether Act 6 provides the exclusive remedy for the patient’s claim against State Farm, or whether she can bring a bad faith claim under the Bad Faith Statute (Section 8371), which provides for punitive damages.

Although the Pennsylvania Supreme Court has not weighed in yet to resolve the conflict, the U.S. District Court, following the Schwartz opinion in the Third Circuit, ruled that such care is in fact dependant to determine whether the patient can bring a bad faith action. In this case, the patient argued that the peer reviewer does substantial work for State Farm and therefore has a financial interest in providing a biased peer review. Further, the patient alleged that the peer reviewer repeatedly gave negative peer reviews to State Farm in order to maintain its relationship with State Farm. These allegations are not part of what Act 6 covers and therefore the patient could go forward with her bad faith claim.

A federal jury in Philadelphia on March 26, 2009 found in favor of State Farm Mutual Automobile Insurance company against Dr. Arnold Lincow, two other osteopaths, and two chiropractors, as well as four corporate entities. The jury assessed $4,049,741.00 against each of the defendants for violation of two parts of RICO, as well as statutory and common law fraud. The jury also assessed punitive damages against Dr. Lincow in the amount of $5,000,000.00 (five million dollars), and $600,000.00 (six thousand dollars) against each of the other defendants.

State Farm argued that from 2000 until the present Dr. Lincow perpetrated a scheme with fellow defendants to exhaust all available benefits under a patient’s motor vehicle medical insurance. The jury agreed with State Farm that Dr. Lincow and his co-defendants performed inappropriate and medically unnecessary testing and treatment, created standardized treatment plans and reports, billed for services that were never received or more costly than actually rendered, submitted fake billing information and fake supporting documentation , employed untrained and unlicensed personnel to provide treatment as if it were provided by licensed and trained personnel, misrepresented the identity of the treating physician, and used a physician to incorrectly diagnose testing as positive (EMG and nerve conduction tests) for which he received a kickback.

The trial lasted three weeks and various attorneys associated with Dr. Lincow had their files subpoenaed to provide evidence as to the RICO scheme. The counterclaims filed by the defendants in the case were rejected by the jury. The defendants have 30 days from March 26, 2009 to file an appeal.

In my last newsletter, I stated that “bills must be sent out by the carrier to the PRO within 30 days of receipt.” Carriers actually have 90 days to refer a file to a PRO. However, if a carrier does so after 30 days, the carrier is obligated to pay the provider’s bill pending PRO review. Providers should be aware that if the peer review finds that the care was not medically necessary, the provider is responsible for repayment of funds received for that care with interest.

The personal injury settlement or verdict often turns on reports prepared by the medical provider. A well written and edited report by the treating doctor goes a long way towards getting the case resolved for the attorney representing the patient. One of the worst things a provider can do is write “Signed but not read” at the bottom of the report. Something the provider can do is write about various anecdotal incidents that the patient may have related to the provider during the course of treatment. Not being the lift a child when the parent comes home at night because of back pain from the accident is something a jury can relate to. Not being able to mow the lawn, while seemingly innocuous, could go a long way towards overcoming the limited tort threshold. Perhaps most important of all is providing requested reports on a timely basis. There is nothing more frustrating for a plaintiff attorney to do than constantly call the provider’s office requesting a report on the patient.

Many doctors are decrying the current economic situation because there has been a decrease in office fees. Many patients may not have the funds to pay for deductibles or have insurance at all. What these same doctors do not realize is that much of their accounts receivable contain unrealized money that could offset some of the downturn in their fees.

My office has represented chiropractors throughout the Commonwealth in obtaining money from insurance companies who will not pay for care rendered to motor vehicle accident victims. Many of these doctors have allowed large sums of money to accumulate for non-payment for motor vehicle accident victims for various reasons. Some do not realize that they can sue the insurance carrier for recovery. Some think they will sue the carrier themselves in small claims court, but never get around to it. Whatever the reason, this is money which should be in the doctor’s bank account and not the insurance carriers.

The amount of work on your part is relatively painless. A copy of any peer review as well as a statement showing the total amount of money due and owing can be faxed or emailed to my office to get the process started. We then place the case in suit after you send us the filing fee, which is typically around $100.00. The majority of these cases are settled without your having to appear in Court.

The significance of this ruling for your practice is that once an IME is performed indicating the patient/insured has recovered, the carrier can cut off payments to you for any further care. (William vs. Allstate Insurance Co, U.S. District Court for the Eastern District of Pennsylvania, 2:08 – CV – 03031 – RB.).

A federal judge has predicted that the Pennsylvania Supreme Court will eventually rule that an insurance carrier can discontinue medical payments if the insured does not submit to a reasonable medical exam.  By way of background, this case involved an insured with Allstate who refused to undergo an independent medical exam when requested to do so by Allstate.  The insured refused to go to the IME because Allstate had not obtained a Court Order requiring the insured to do so, even though there was a provision in the Allstate policy allowing Allstate to require the insured to submit to an IME or face discontinuance of coverage.  The federal judge relied on a Pennsylvania Superior Court case that stated when a policy for car insurance contains language which explicitly states the carrier can compel an insured to attend an IME, such a provision is enforceable without the need for the carrier to obtain a court order.  Many carriers, e.g. Nationwide, are performing a peer review and buttressing their position to discontinue payments with an IME.

1.         Clear, Concise and Non-repetitive Documentation

Many providers used canned software to document an office visit. While writing reports is boring and irksome, in the long run it pays off. Providing individualized information about a patient rather than pre-canned language, as well as putting an anecdote in the patient’s file, such as not being able to lift up his child when the patient returned home at night, goes a long way towards keeping the well-known peer reviewers at bay.

2.         Reasonableness and necessity versus causation

It is clear from both the language in the statue and the Insurance Commission’s regulations interpreting the statute that only reasonableness and necessity of the care rendered by the provider can be discussed in the peer review. Issues such as the setting and/or frequency of the treatment can be discussed in the peer review. Ascribing the care to preexisting pathology or lack of substantial impact with minimal property damage at the of time of the accident goes to etiology or causation and cannot be discussed in a peer review.

3.         Timely Compliance with all aspects of Act 6

Every time requirement in Act 6 must be strictly complied with. This means that the bills must be sent out by the carrier to the PRO within 30 days of receipt. It also means that the carrier has 90 days to collect all the material for reviewing, including contact with the provider under review. The reviewer than has 30 days to complete the review, unless an additional 20 days has been requested. The PRO then has 3 days to mail the review to the carrier, who in turn must mail the review to the provider within 5 days. If any of these dates are not strictly complied with, the peer review is invalid and the provider must be paid. This means that the substantive issues raised in the peer review need not even be addressed.

4.         Take the Phone Call

The peer review process requires some communication between the peer reviewer and the provider. While there is dispute as to whether the reviewer or the provider is to initiate the phone call, the provider should always take the call when the reviewer calls to go over the file. The provider should then explain to the reviewer why the care was mandated and what the results were of the care under question. At the very least coming to the phone by the provider prevents the defense attorney from arguing to the Judge that the provider had something to hide.

5.         Notice to Provider

Each provider who submits bills must have an individual peer review performed. This means that if an MD refers a patient to a physical therapist, the MD and therapist have to have individual peer reviews performed for the care of each of them. It is not enough that the referring provider is reviewed, since the carrier may try to use this review to not pay care rendered by the physical therapist.

6.         Make Sure the Reviewer Has All the Documentation

Too often there is valuable documentation in the patient’s chart that the reviewer is not sent. Consults, results of radiological tests, and in-house testing, should all be sent to the reviewer. Doing so enables the reviewer to see the big picture as seen by the provider during the course of treatment.

7.         Review All Entries Made by Staff

The number of times providers have been embarrassed on the witness stand because of erroneous or sloppy entries made by their staff have occurred all too often in my practice. A quick but thorough review of any entry made in the patient’s chart by a staff member will pay enormous dividends in the long run.

8.         Repetitive Treatment Without Signs of Change

Many reviewers criticize the provider’s continuation of treatment, particularly physical therapy, without the patient showing signs of improvement. While it is recognized how intractable a patient’s condition can be, some indication should be made in the chart as to why the provider thought the patient should continue to need the same form of treatment with the same frequency. A periodic consult by a specialist will often provide the ammunition necessary to rebut any criticism that a reviewer may have as to why the same treatment is required.

Section 1797 of the Motor Vehicle Financial Responsibility Law (MVFRL) introduced a new concept regarding paying medical providers for care rendered to motor vehicle accident victims in 1990. The new law established what a provider can accept as payment for services rendered. It also provided for a peer review to be used y insurance companies if they did not agree with the “reasonableness and necessity” of the treatment provided. Section 1797(a) established what fee could be charged by the provider, namely “110% of the prevailing charge at the 75th percentile; 110% of the applicable fee schedule, the recommended fee or the inflation index chart; or 110% of the diagnostic-related groups (DRG) payment;… determined to be applicable in the Commonwealth under the Medicare program for comparable services at the time the services were rendered or the provider’s usual and customary charge, whichever is less.” §1797(b) requires insurance carriers to contract jointly or separately with a peer review organization (PRO). The PRO in turn contacts a peer reviewer to review documents provided by the provider to the PRO.

PRO’s are regulated by 31 Pa. Code §69.53 in relevant part as follows:

· (a) a PRO is to reimburse providers for copying records at the current rate RCFA reimburses its contracted PRO;

· (b) written notice of determinations are to be mailed to the insurer within three working days of the conclusion of the peer review;

· (c) a PRO shall apply national or when appropriate, regional norms in conducting determinations and when national or regional norms do not exist, the PRO shall establish written criteria to be used in conducting its reviews based upon typical patterns of practice of PRO’s geographic area of operation; and

Peer reviews apply to Pennsylvania as well as out of state providers.

Schappell v. Motorists Mutual Ins. Co., 934 A.2d 1184 (Pa. 2007).

The Supreme Court has ruled that a provider, in this case a chiropractor, can collect statutory interest in the amount of 12% per year under Section 1716 of the Motor Vehicle Financial Responsibility Law. The Supreme Court reached this decision despite the lack of specific language in the statute providing such relief. The Supreme Court found this way in part because that Dr. Schappell was part of a group for which the statutory interest benefit was intended. The Court also found that paying interest to the provider for overdue benefits assisted in the In “the prompt and adequate payment of basic loss benefits for motor vehicle accident victims.”