ENDO SURGI CENTER a/s/o BERNADETTE HARPER, Plaintiff-Respondent,
NJM INSURANCE GROUP, Defendant-Appellant.
December 11, 2018
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. L-2518-17.
A. Cappuzzo argued the cause for appellant (Chasan Lamparello
Mallon & Cappuzzo, PC, attorneys; Robert A. Cappuzzo, of
counsel and on the brief; Richard W. Fogarty, on the briefs).
A. Salisbury argued the cause for respondent (Bramnick,
Rodriguez, Grabas, Arnold & Mangan, LLC, attorneys; Carl
A. Salisbury, on the brief).
Judges Hoffman, Suter and Geiger.
N.J. Mfrs. Ins. Co. v. Specialty Surgical Ctr. of N.
Brunswick, __ N.J.Super.__, __(App. Div. January 29,
2019) (slip op. at 2), we affirmed trial court orders that
"held the PIP medical fee schedule [did] not provide for
payment to an ambulatory surgical center (ASC) for procedures
not listed as reimbursable when performed at an ASC."
That precedent resolves this case. We reverse the trial
court's summary judgment order that granted reimbursement
to the ASC because the medical procedure involved in this
case was not reimbursable when performed separately at an
Harper, a New Jersey Manufacturers Insurance Company (NJM)
insured, sustained injury to her lower back in a February
2012 car accident. In April 2014, she received a lumbar
discography at an ASC operated by Endo Surgi Center in Union
(Endo Surgi). Endo Surgi sought $10, 000.02 in reimbursement
from NJM for the discography. NJM denied payment.
filed a demand for PIP arbitration with Forthright, Inc., an
entity that was contracted with the State to provide dispute
resolution professionals (DRPs) to hear PIP disputes. See
Kimba Med. Supply v. Allstate, Ins. Co., 431 N.J.Super.
463, 467 (App. Div. 2013). In November 2016, the DRP ruled in
favor of Endo Surgi that the claim was reimbursable. NJM
appealed that decision to a three-DRP panel, which reversed
the DRP's decision in March 2017 as "contrary to the
[l]aw, specifically N.J.A.C. 11:3-29.5."
Surgi filed a Law Division complaint under N.J.S.A. 2A:23A-13
of the Alternative Procedure for Dispute Resolution Act
(APDRA) seeking to vacate the three-DRP panel's decision.
Endo Surgi contended it was entitled to reimbursement under
N.J.A.C. 11:3-29.4(g) because the procedure was reimbursable
under Medicare rules. Both parties filed motions for summary
judgment. On November 17, 2017, the trial court granted Endo
Surgi's cross-motion for summary judgment, ordering
reinstatement of the DRP's award that allowed
reimbursement, and denying NJM's motion.
Surgi's claim is for reimbursement under the PIP medical
fee schedule, N.J.A.C. 11:3-29.1 to -.6 and 11:3-29
(Appendix, Exhibits 1 to 7) (Fee Schedule), for Harper's
lumbar discography. The Department of Banking and Insurance
(Department) promulgated the Fee Schedule "on a regional
basis for the reimbursement of healthcare providers . . . for
medical expense benefits . . . under [PIP] coverage . . .
." Specialty Surgical, __N.J.Super. at__ (slip
op. at 3) (alterations in original) (quoting N.J.S.A.
39:6A-4.6(a)). "ASC facility fees are listed in
Appendix, Exhibit 1 by CPT Code." Ibid. (quoting
lumbar discography claim was billed under CPT Code 62290. In
April 2014, when this claim was submitted, this CPT Code
62290 was listed on the Fee Schedule, but the column listing
reimbursement for an ASC did not list any dollar amount for
reimbursement, instead it had the notation "N1."
11:3-29.5(a) provides that "[c]odes that do not have an
amount in the ASC facility column are not reimbursable if
performed in an ASC." In the Department's Frequently
Asked Questions (FAQ), the Department explained:
Question: There is no fee in the ASC facility fee
column of Appendix, Exhibit 1 for the service I want to