Opinion
10560 Index 28391/18E
12-12-2019
GLOBAL LIBERTY INSURANCE CO. OF NEW YORK, Plaintiff-Appellant, v. NORTH SHORE FAMILY CHIROPRACTIC, PC as assignee of Ramon Martinez, et al., Defendants-Respondents.
The Law Office of Jason Tenenbaum, P.C., Garden City (Talia Beard of counsel), for appellant. The Rybak Firm, PLLC, Brooklyn (Karina Barska of counsel), for respondents.
The Law Office of Jason Tenenbaum, P.C., Garden City (Talia Beard of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn (Karina Barska of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Webber, Gesmer, JJ.
In this action, plaintiff no-fault insurers seek to resolve, as a matter of law, the question of the fee schedule applicable to reimbursement of licensed acupuncturists who provide services to eligible individuals injured in motor vehicle accidents. Under the Insurance Law, no-fault coverage for necessary medical expenses "shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers' compensation board for industrial accidents" except under "unique circumstances" ( Insurance Law § 5108[a] ). Under applicable regulations, where a service is reimbursable but the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with the charges permissible for similar procedures under schedules already adopted or established ( 11 NYCRR 68.5 [b]; see Forrest Chen Acupuncture Servs., P.C. v. GEICO Ins. Co., 54 A.D.3d 996, 997, 865 N.Y.S.2d 124 [2d Dept. 2008], affg 15 Misc.3d 137[A], 2007 N.Y. Slip Op. 50874[U], 2007 WL 1228772 [App. Term 2d Dept. 2007] ). The superintendent has not adopted a fee schedule applicable to licensed acupuncturists, requiring consideration of "charges permissible for similar procedures under schedules already adopted or established" ( 11 NYCRR 68.5 [b] ).
We join the recommendation of the Appellate Term, Second Department, that the Superintendent of Insurance consider adopting a fee schedule including licensed acupuncturists to resolve the issue
Plaintiffs did not proffer admissible evidence sufficient to make a prima facie showing of entitlement to judgment on the issue as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Plaintiffs rely on a 2004 informal opinion letter of the former Insurance Department, but that letter did not resolve the issue. It allows insurers to pay "the rates established for doctors and chiropractors," instead of a higher "prevailing fee in the geographic location of the provider," so long as there is a review "for consistency with the charges permissible for similar procedures" under either fee schedule ( Ops. Gen. Counsel N.Y. Ins. Dept. No. 04–10–03 ; see 11 NYCRR 68.5 [b] ). The opinion letter "did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware" that "the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians" ( Great Wall Acupuncture v. GEICO Gen. Ins. Co., 16 Misc.3d 23, 28, 842 N.Y.S.2d 131 [App. Term 2d Dept. 2007] ; see Andryeyeva v. New York Health Care, Inc., 33 N.Y.3d 152, 174, 100 N.Y.S.3d 612, 124 N.E.3d 162 [2019] [requiring judicial deference to an "agency's rational interpretation of its own regulations"] ). While courts have held that "an insurer may use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive" ( Great Wall Acupuncture, P.C. v. Geico Ins. Co., 26 Misc.3d 23, 24, 893 N.Y.S.2d 420 [App. Term 2d Dept. 2009] [emphasis added]; see also Akita Med. Acupuncture, P.C. v. Clarendon Ins. Co., 41 Misc.3d 134[A], 2013 N.Y. Slip Op. 51860[U], 2013 WL 6038388 [App. Term 1st Dept. 2013] ), such holdings do not foreclose the use of the physician fee schedule in all cases (see e.g. Okslen Acupuncture P.C. v. Travco Ins. Co., 44 Misc.3d 135[A], 2014 N.Y. Slip Op. 51209[U], 2014 WL 3899547, at *1 [App. Term 1st Dept. 2014] ; Raz Acupuncture, P.C. v. AIG Indem. Ins. Co., 28 Misc.3d 127[A], 2010 N.Y. Slip Op. 51177[U], 2010 WL 2681750, at *2 [App. Term 2d Dept. 2010] ).
Further, plaintiffs did not "proffer sufficient evidence to establish as a matter of law that the claims were improperly billed or were in excess of the amount permitted by the fee schedule" ( Easy Care Acupuncture, P.C. v. A. Cent. Ins. Co., 48 Misc.3d 129[A], 2015 N.Y. Slip Op. 50973[U], 2015 WL 3970603, at *1 [App. Term 1st Dept. 2015] ).
In any event, defendants raised an issue of fact as to whether the physician fee schedule should apply. They rely on the former Insurance Department's regulatory impact statement accompanying its proposed 2010 rule amendment, by which it sought to clarify "inconsistent" court rulings, that "acupuncture treatments are the primary service performed and billed by licensed acupuncturists" and "such treatments merit reimbursement at the same rate that medical doctors receive for comparable services" (N.Y. State Register, Vol. XXXII, Issue 29, at 12–13 [July 21, 2010] ). They also proffered, among other things, an affidavit from a licensed acupuncturist who averred that he was consistently reimbursed by workers' compensation insurers at the physician rates, for over 15 years, which plaintiffs did not rebut.
Further, Supreme Court did not err by finding the motion for summary judgment on the issue of overbilling to be premature prior to discovery (see American Tr. Ins. Co. v. Jaga Med. Servs., P.C., 128 A.D.3d 441, 441, 6 N.Y.S.3d 480 [1st Dept. 2015] ; see also CPLR 3212[f] ).