Not In An ASC, You Don’t!

PIP reimbursement for most auto injury-related treatment is governed by a fee schedule which dictates appropriate reimbursement dollar amounts based on a provider’s billed CPT codes. Importantly, the fee schedule contains separate columns, one for reimbursement of physician charges and another for reimbursement of Ambulatory Surgical Center (ASC) fees. Notably, in some cases, a particular CPT code is listed on the fee schedule but the ASC fees column is blank, i.e., it does not contain a dollar amount.

On January 29, 2019, the Superior Court of New Jersey, Appellate Division, issued an opinion in the matter of New Jersey Manufacturers Insurance Company v. Specialty Surgical Center of North Brunswick a/s/o Claire Fiore and Surgicare Surgical Associates of Fair Lawn a/s/o Martino Chizzoniti, 202 A.3d 672 (N.J., App. Div. 2019). In these back-to-back appeals, consolidated for purposes of the opinion, the defendant‑appellants sought to overturn Law Division orders that vacated binding arbitration awards entered in their favor against the plaintiff, New Jersey Manufacturers Insurance Company. In both cases, the trial court held that the PIP medical fee schedule does not provide payment to an ASC for procedures not listed as reimbursable when performed at an ASC. The Appellate Division affirmed. Importantly, the Appellate Division noted that:

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The 2012 Fee Schedule listed various CPT codes. For many, there was an amount listed that could be reimbursed to an ASC if it performed the service listed. For some other listed CPT codes, there was no reimbursement figure for an ASC. Clearly, if the CPT code is listed and no amount is set forth for an ASC, the ASC cannot receive payment for that service. Defendants do not dispute this point; however, they argue this case presents a different issue, the situation where the CPT code in question does not appear at all in the Fee Schedule.

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Id., 202 A.3d at 678.

Moreover, the Appellate Division stated:

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We conclude that ASCs should not receive reimbursement for CPT code 63030 procedures because no reimbursement was listed in the ASC columns in the Fee Schedule, as originally proposed. This omission provides a clear indication of the Department’s intent not to reimburse ASCs for CPT code 63030 procedures. The fact that Medicare now includes the CPT code does not result in the automatic amendment of the Fee Schedule; instead, we conclude it is the Department, not Medicare, that amends the Fee Schedule.

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Id., at 679.

On February 7, 2019, the Superior Court of New Jersey, Appellate Division, issued a related opinion in the matter of Endo Surgi Center a/s/o Bernadette Harper v. NJM Insurance Group, 209 A.3d 904 (N.J. App. Div. 2019). This opinion resolved the issue raised but not directly decided in Specialty Surgical, namely reimbursement where a particular CPT code is listed on the fee schedule but no reimbursement dollar amount is included in the ASC fees column thereof. In that regard, this opinion stated:

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In Specialty Surgical, we addressed the same legal issue. In that case the CPT codes being considered for reimbursement when performed in an ASC were not listed in the Department’s medical fee schedule at all. [Citation omitted.]

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We also rejected the argument in Specialty Surgical that Endo Surgi makes here that the Fee Schedule is amended when Medicare permits reimbursement to and ASC of a CPT Code. “The fact that Medicare now includes the CPT Code does not result in the automatic amendment of the Fee Schedule; instead we conclude it is the Department, not Medicare, that amends the Fee Schedule.” [Citation omitted.]

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Id., 209 A.3d at 907.

The court then concluded:

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In this case, CPT Code 62290 was listed in the Fee Schedule but that schedule did not include a reimbursement amount for an ASC because it did not permit reimbursement when performed separately at an ASC. The trial court erred in ordering reimbursement. **** We are constrained to reverse in light of our decision in Specialty Surgical.

Reversed.

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Id.

The bottom line is, where an ASC-billed CPT code either does not appear on the fee schedule at all or does appear on the fee schedule but does not have a dollar amount in the ASC fees column, no reimbursement is permitted to the ASC for the services represented by the billed code.

*Jonathan is special counsel in our Roseland, New office. He can be reached at 973.618.4113 or jgwilliams@mdwcg.com.

_{Defense Digest, Vol. 27, No. 2, March 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}