May 14, 2018

In the matter of International Center for Minimally Invasive Spine Surgery a/s/o A.S. v. NJMRichard W. Fogarty successfully appealed a Forthright Arbitration decision which had awarded fees to an ambulatory surgical center (“ASC”) for a surgical procedure which was not listed on the ASC Fee Schedule.  In the underlying award, the arbitrator held that because Medicare allowed reimbursement for this surgery to an ASC, it should be payable from a PIP carrier as well.  The arbitrator had awarded payment at the rate which would be payable if the surgery had been done in a hospital.  Mr. Fogarty appealed the matter on behalf of New Jersey Manufacturers Insurance Company and successfully convinced the appellate panel that pursuant to the relevant Administrative Code sections, services that are not listed on the ASC Fee Schedule are not payable to an ASC, even if they are determined to be medically necessary.  In doing so, Mr. Fogarty referenced the Department of Banking and Insurance’s comment on this issue and persuasively argued that Medicare’s approval of the service to be performed in an ASC was irrelevant.  The Appellate Panel’s decision resulted in the complete denial of the surgery center’s bill.

Chasan Lamparello
Mallon & Cappuzzo, PC

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