Citywide Social Work & Psychological Servs., P.L.L.C. v Allstate Ins. Co. (2005 NY Slip Op 51283(U))

Civil Court of the City of New York, Kings County

66089/2001

Arlene Bluth, J.

This is an action to recover first-party no-fault benefits, interest, and attorney’s fees pursuant to New York’s Insurance Law and no-fault regulations. Plaintiff Citywide Social Work & Psychological Services, P.L.L.C. (“plaintiff”) billed defendant Allstate Insurance Company (“defendant”) a total of $1,061.63 for psychiatric/psychological services rendered to plaintiff’s assignor, Gloria Zuhne (“assignor” or “patient”). The bill contained separate charges for (1) psychiatric evaluation of records and other accumulated data for diagnostic purposes, (2) psychiatric diagnostic interview examination, (3) psychological testing, including psychodiagnostic assessment with interpretation and report, and (4) explanation and interpretation of results to primary physician. All of the services were performed on June 8, 2001 with the exception of the explanation and interpretation of results to primary physician which was performed on June 15, 2001. Defendant denied all portions of plaintiff’s claim on the ground that the services rendered were medically unnecessary.

At the outset of the August 8, 2005 trial, the parties stipulated and agreed that plaintiff had submitted a proper proof of claim and that defendant had made a timely denial. The parties further stipulated and agreed to the following documents in evidence: Plaintiff’s Exhibit 1: plaintiff’s claim form with cover letter, Dr. Fischer’s letter of medical necessity, psychological evaluation, Narrative Report, Assignor’s self-referral consent and authorization form, assignment of benefits form, addendum to NF-3, attendance form, and patient’s consent for plan of care; plaintiff’s Exhibit 2: defendant’s explanation of bill payment, NF-10, and summons and complaint; defendant’s Exhibit A: peer review by Laurence Abelove, Ph.D.

The only issue for trial, then, was the medical necessity of the billed-for psychiatric and psychological services, an issue on which defendant bore the burden of proof (A.B. Med. Servs., P.L.L.C. v GEICO Ins. Co., 2 Misc 3d 26, 27, 773 NYS2d 773 [App Term, 2nd Dept 2003]; Nir v Allstate Ins. Co., 7 Misc 3d 544, 546, 796 NYS2d 857 [Civ Ct, Kings County 2005]; Behavioral Diagnostics v Allstate Ins. Co., 3 Misc 3d 246, 248, 776 NYS2d 178 [Civ Ct, Kings County 2004]).

Defendant called as its witness Dr. Laurence Abelove, a licensed psychologist since 1987 who qualified as an expert without objection. Dr. Abelove, who performed the peer review upon [*2]which defendant based its denial of claim, testified that the billed-for work was not medically necessary and that even if it were, there was a lack of documentation to substantiate that it was done properly. Specifically, Dr. Abelove testified that the documents did not support a determination that there was a true review of records (billing code 90885), as the only document provided to plaintiff by another medical professional was the referral; the other record was a self-assessment form that plaintiff had given the patient that day, the review of which does not qualify for the billing code used. Dr. Abelove testified that plaintiff’s evaluation of records for medical diagnostic purposes was medically unnecessary because such a review is performed as part of the initial psychiatric diagnostic interview examination and, therefore, should not be charged as a separate, stand-alone service on plaintiff’s bill for services rendered.

Dr. Abelove also testified that plaintiff did not perform a thorough intake interview and thus should not have billed for one (billing code 90801). To support his conclusion, Dr. Abelove pointed to, among other things, the lack of information regarding the accident itself in plaintiff’s reports and the lack of a detailed history with respect to the assignor’s following histories: marital, occupational, prior psychological and medical treatments, place of birth, ages of children, etc. As well, the records lacked a thorough pre- and post-accident comparison of the assignor’s symptoms. Accordingly, Dr. Abelove concluded that the comprehensive interview required by the billing code was not done.

With respect to the psychological testing (billing code 96100), Dr. Abelove testified that the diagnosis of the assignor’s psychological condition could have been made following a thorough interview examination and thus the battery of psychological tests was unnecessary. Additionally, the tests were not geared (or “normed”) for the assignor, who had suffered a motor vehicle accident less than a month earlier. Accordingly, Dr. Abelove concluded that the psychological tests, which consisted of the Beck depression inventory, the Beck anxiety inventory, the Beck hopelessness scale, a neuro-psychological symptom checklist (which does not qualify as a test in Dr. Abelove’s opinion), a pain-patient profile, and a mental status profile, were not medically necessary for the purposes of diagnosing the assignor.

Finally, with respect to the final billing code (90887), Dr. Abelove stated that there was no documentary evidence that the reports were discussed with any members of the assignor’s family and there was no indication that the assignor was incapable of understanding the results herself. To the extent that the charge was for reporting to the assignor’s primary care physician, Dr. Abelove testified that sending a copy of such report was a courtesy and not chargeable. Besides, having concluded that psychological testing was not medically necessary, Dr. Abelove also concluded that plaintiff’s explanation and interpretation of those tests to the assignor’s primary physician were also medically unnecessary.

Dr. Bruce Baumgarten, a psychologist licensed in this state who also qualified as an expert without objection, testified on behalf of plaintiff that all the billed-for psychological services were medically necessary. With respect to a review of records (billing code 90885), Dr. Baumgarten indicated that the referral from another doctor was reviewed (see medical necessity letter, bolded language at the bottom of page one). Regarding the intake interview (billing code 90801), Dr. Baumgarten admitted that the details of the accident were particularly skimpy in the reports, but that the other bases for defendant’s objections were trivial; Dr. Baumgarten speculated that the details were probably covered in the interview but possibly not all the [*3]information gathered by the interviewer made it into the report.

Regarding the psychological testing (billing code 96100), Dr. Baumgarten testified that two independent sources of data are needed in order to accurately diagnose a patient’s psychological condition, and that in the absence of two sources, the validity of an initial diagnosis usually cannot be confirmed. Dr. Baumgarten also opined that the psychological testing at issue is useful not only in confirming the validity of a diagnosis, but in planning the assignor’s course of treatment because the testing provides the psychologist with a “longitudinal” view of how the patient has been feeling over a period of time. Thus, Dr. Baumgarten concluded that psychological tests were medically necessary both to confirm the initial diagnosis made following the assignor’s interview examination and to specify her actual level of illness.

Finally, Dr. Baumgarten also testified that the explanation and interpretation of results to the primary physician was medically necessary (billing code 90887), was chargeable, and was not merely a courtesy.

Analysis

Rather than defining medical necessity, the No-Fault Insurance Law merely provides that claimants are entitled to recover for “basic economic loss,” which includes, inter alia, “[a]ll necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation.” (Insurance Law § 5102 [a] [1]; see also Behavioral Diagnostics, 3 Misc 3d at 248). The no-fault regulations likewise provide little assistance to courts attempting to determine, in the face of conflicting expert testimony, whether certain medical or psychological services are medically necessary (see 11 NYCRR § 65.12 [e] [2]; Behavioral Diagnostics, 3 Misc 3d at 249).

In the absence of a statutory standard, courts have been forced to fashion their own definitions of medical necessity. In the context of psychological testing, case law reveals at least three such judicially crafted definitions. The first, which asks “could a psychologist hold an objective and reasonable belief that the tool used will further the patient’s diagnosis and treatment and whether that tool is warranted given the circumstances” was announced in Medical Expertise, P.C. v Trumbull Ins. Co., 196 Misc 2d 389, 395, 765 NYS2d 171 [Civ Ct, Queens County 2003]. The second standard, found in Citywide Soc. Work & Psychol. Servs., P.L.L.C. v Travelers Indem. Co., 3 Misc 3d 608, 613, 777 NYS2d 241 [Civ Ct, Kings County 2004], focuses the court’s inquiry on the “generally accepted medical/professional practice,” while the third holds psychological tests to be medically necessary if “either (1) they are within the standard of care for good and accepted medical practice for all patients in that circumstance; or (2) the treating physician made a reasoned and reasonable judgment, based on the particular circumstances of the patient, that the tests will assist the physician in formulating an accurate diagnosis and an appropriate treatment plan for the patient” (Behavioral Diagnostics, 3 Misc 3d at 251-52).

In essence, though, the question of the medical necessity of psychological testing turns on the credibility of the testifying doctors. Here, both experts agreed that if plaintiff received a [*4]referral from a treating medical doctor because that doctor thought the patient’s psychic pain from the motor vehicle accident needed the attention of a psychologist, the first thing plaintiff should have done is to read why that doctor thought this patient needed help. Both experts agreed that the plaintiff then should have talked to the patient to find out what had happened in the accident and why the patient was having so much trouble coping. The Court credits Dr. Abelove that the next step was to determine, based on plaintiff’s evaluation of the assignor and arrival at a possible diagnosis, which tests, if any, were appropriate to confirm or rule out that diagnosis. Then, armed with two independent sources of information the evaluation interview and the test results plaintiff should have explained and interpreted the results, including the diagnosis and treatment plan, to the assignor’s primary physician, so the referring physician would be apprised as to whether the assignor’s symptoms were the result of a legitimate psychological condition or merely psychosomatic.

After reviewing the exhibits and hearing the testimony, the Court agrees with defendant’s expert, Dr. Abelove, that a comprehensive intake interview was not done and therefore payment for $194.58, billing code 90801, is denied. In the Court’s view, a comprehensive interview for a patient presenting due to a car accident must significantly delve into the accident and the patient’s problems resulting therefrom. From the evidence presented, there is no indication that plaintiff was even aware, for example, of the severity of the accident, how strong the impact, whether anyone was killed, the injuries sustained and the severity thereof, who was at fault, the damage to the vehicles involved, or the financial pressures and setbacks suffered by the patient because of the accident. For example, the patient could have been on the mend from back surgery, and the minor fender bender caused a re-injury, resulting in her recovery regressing and her becoming frustrated. This would be very different from an accident caused by the patient drinking and slamming into a bus stop full of children, causing several deaths and severe injuries. There is no indication of the extent of the patient’s injuries, nor those of her children, nor those of the other driver or passengers, nor any indication of the patient’s feelings with respect thereto. Because the record does not reflect that plaintiff ever asked about these highly relevant facts, this Court concludes that the comprehensive intake interview was never performed.

Since a comprehensive interview was never performed, the battery of tests performed was not medically necessary. This Court credits the testimony of plaintiff’s expert, Dr. Baumgarten, that there is a need for two independent sources of psychological data to accurately diagnose a patient’s condition. However, not every patient should have every test; for example, if the interview revealed psychological symptoms but no chronic, physical pain, then there would be no need to conduct the pain-patient profile test. Since the medical necessity and appropriateness of each of the various tests can only be determined after a comprehensive interview, and no such interview was done here, plaintiff has failed to rebut defendant’s proof that the tests were not medically necessary. Accordingly, the payment for $696.50 for psychological testing (billing code 96100) is denied.

Two more bills must be addressed. The first is the review of records for purposes of medical diagnosis (billing code 90885) in the amount of $67.24. There is no question that plaintiff reviewed something from the referring physician. In the letter of medical necessity (on the bottom of page one), plaintiff lists several symptoms mentioned by the referring physician. [*5]The basis for defendant’s objection to this bill was that only one document was reviewed. However, defendant offered no testimony as to a minimum number of records which must be reviewed in order to qualify for this billing code, or that the referral did not constitute a medical record. Since the Court finds that the defendant has failed to fulfill its burden that it was not medically necessary to review the records, plaintiff is awarded $67.24 on this bill.

Finally, having found that the comprehensive intake was not done and the tests performed were unnecessary, the Court denies payment for $103.31 for billing code 90887, reporting to primary physician.

Accordingly, judgment should be entered in favor plaintiff in the amount of $67.24, together with statutory interest and attorney’s fees and costs.

This is the Decision and Order of the Court.

Dated: August , 2005

ARLENE P. BLUTH

Judge, Civil Court