1992, slip op. at 6-7 [Sup. Ct. Schenectady Co. 1992], aff'd, 204 A.D.2d 864, 612 N.Y.S.2d 461 [3d Dep't 1994]). The Court finds no significant difference between what it previously termed "simple range of motion exercises and/or tests" and the Computerized Cervical Range of Motion tests now under consideration. The only distinction plaintiffs cite is that when conducting computerized tests, Dr. Introna utilized the aid of a computer attached to a three-dimensional arm to measure and record results rather than measuring a patient's cervical range of motion by eye. Tr. at 122-24. Although Dr. Introna testified that use of the computer "adds a dimension of scientific performance" to the test, Tr. at 123, at trial he admitted that he had characterized Computerized Cervical Range of Motion as a "simple test" during his deposition. Tr. at 123-24. Under these circumstances, plaintiffs have failed to meet their burden of demonstrating the "unique" or "unusual" nature of these services, and the Court finds that Computerized Cervical Range of Motion tests are included in fees charged for office visits. Accordingly, these tests are not separately compensable, and plaintiffs' claim for additional compensation is denied.
4. Plaintiffs are entitled, however, to additional compensation for the performance of four remaining categories of diagnostic services, including Autoscreen 3-D, Surface EMG, Neurometer Screen Testing, and Plethysmography. See Introna, 850 F. Supp. at 165.
5. When determining a fee, a provider must use the schedule "in effect on the date on which the chiropractic services were rendered, regardless of the date of accident." 12 N.Y.C.R.R. § 348.1. Because the services warranting additional compensation here were rendered between April 1990 and February 1993, the Court must apply the 1988 Chiropractic Fee Schedule to determine the amount of Dr. Introna's fees.
6. Dr. Introna, whose practice is located in Staten Island, New York, falls within conversion factor Region 4. See Pl. Ex. 2, p. 6.
7. Dr. Introna may not set his fees for diagnostic services in accordance with those typically charged by other providers in his geographic location. When establishing fees for unscheduled procedures, a health provider may look to the fee prevalent in his or her geographic location only where the Workers' Compensation Board has not adopted a fee schedule applicable to that provider. 11 N.Y.C.R.R. § 68.6(b). As this Court recognized previously, the promulgation of a chiropractic fee schedule clearly prohibits Dr. Introna from employing the "prevailing rate" method. Introna, 850 F. Supp. at 165-66. Under 11 N.Y.C.R.R. § 68.6(a), Dr. Introna is bound to set his fees in accordance with those charged for comparable procedures.
8. To establish fees consistent with those charged for comparable procedures, the Court first must determine which procedure listed in the schedules is most similar to each of the diagnostic services presently under consideration. (The corresponding unit value for each of these procedures then will be multiplied by an appropriate dollar conversion factor.) At trial, Dr. Introna testified that he ascribed unit values primarily on the basis of the amount of time he spent performing a procedure. See, e.g., Tr. at 69, 71-72, 80. Dr. Introna conceded that he never provided Allstate unit values at the time he submitted his bills, Tr. at 91, and even admitted that he did not compute unit values for any of the tests he performed until preparing his trial testimony. Tr. at 91-92. Clearly, Dr. Introna could not possibly have determined his fees on the basis of comparable unit values.
In contrast, defendant established a system of assigning unit values to the tests performed by Dr. Introna by examining the cost of the equipment Dr. Introna used in conducting a particular test, the training and time needed to perform the test, and the time required to interpret test results. Tr. at 170-71. Defendant then computed unit values for Dr. Introna's tests by adopting those unit values ascribed to procedures similar in cost, performance time, training, and interpretation time.
To ensure internal consistency among fees, it is necessary to establish a coherent system of assigning unit values and conversion factors. The method developed by Allstate produces the most reliable results, and therefore, taking into consideration the cost of equipment involved, time needed to perform each test, training required, and interpretation time, the Court adopts the following comparable procedures and corresponding CPT Codes and unit values for each of the tests performed by Dr. Introna:
a. Autoscreen 3-D: Computerized Muscle Tests
CPT Code 97752
Unit Value = 9.7 units
b. Surface EMG: Needle Insertion EMG
CPT Code 95869
Unit Value = 20 units
c. Neurometer Screen Testing:
Nerve Conduction Velocity
CPT Code 95904
Unit Value = 9 units
d. Plethysmography: Plethysmography
CPT Code 93890
Unit Value = 30 units
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