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Endo Surgi Center v. NJM Insurance Group

Superior Court of New Jersey, Appellate Division

June 19, 2019

ENDO SURGI CENTER a/s/o BERNADETTE HARPER, Plaintiff-Respondent,
v.
NJM INSURANCE GROUP, Defendant-Appellant.

          Argued December 11, 2018

          On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2518-17.

          Robert 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).

          Carl A. Salisbury argued the cause for respondent (Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC, attorneys; Carl A. Salisbury, on the brief).

          Before Judges Hoffman, Suter and Geiger.

          OPINION

          SUTER, J.A.D.

         In 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[1] 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 ASC.

         Bernadette 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.[2] NJM denied payment.

         The ASC 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."

         Endo 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.

         Endo 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[3] Code." Ibid. (quoting N.J.A.C. 11:3-29.5(a)).

         This 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."

         N.J.A.C. 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 ...

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