Opinion
No. 26708/11.
2013-01-28
ACUPUNCTURE APPROACH P.C., Plaintiff, v. MVAIC, Defendant.
ANDREA MASLEY, J.
In this no-fault action, defendant MVAIC seeks dismissal of the complaint pursuant to CPLR 3212(b) on grounds that the amount plaintiff Acupuncture Approach PC a/a/o Jose Perez billed for acupuncture treatment exceeds the Workers' Compensation Fee Schedule (the “Fee Schedule”).
Plaintiff Acupuncture cross-moves pursuant to CPLR 3212 for summary judgment on the grounds that defendant has not established that the denial was properly mailed and the Fee Schedule was not published in a manner consistent with the New York Constitution.
Plaintiff sues for $1,582.02. Plaintiff provided services from April 21, 2010 to May 12, 2010 for which it billed $2,770 and defendant paid $1,187.98.
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Summary judgment will be granted where all issues are strictly legal or when the uncontested facts allow only one conclusion as a matter of law. Long Island Railroad Co. v. Northville Induct. Corp., 41 N.Y.2d 455 (1977). “When saved for a proper case it is a perfectly constitutional weapon. It does not deny the parties a trial; it merely ascertains that there is nothing to try.” Siegel, N.Y. Practice § 278 at 476 (5th ed.).
MVAIC claims representative Silviya Gandrabur swears in an affidavit that on July 2, 2010, MVAIC issued a check in the amount of $1,187.98 and a denial for the balance. The presumption of proper mailing “may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680 (2d Dept 2001). Counsel's contention that MVAIC failed to establish mailing of the denial is no more than conclusory and self-serving. Ms. Gandrabur establishes that MVAIC mailed the denial consistent with MVAIC's postal practice that ensures proper mailing. Contrary to plaintiff's objection, MVAIC is not required to additionally establish actual mailing. Plaintiff's cross motion on this basis is denied.
A provider establishes a prima facie case for no-fault benefits with proof that the provider submitted a proper claim and assignment of benefits to the insurer and evidence that plaintiff's claim has not been paid or denied consistent with the insurance regulations. Complete Orthopaedic Supplies Inc. v. State Farm, 16 Misc.3d 996 (Queens County 2007). MVAIC asserts that the claim was partially properly denied based on the Fee Schedule. Plaintiff challenges MVAIC's reliance on this Fee Schedule, which is allegedly unconstitutional.
It is undisputed that the Fee Schedule does not contain a fee for an acupuncturist performing acupuncture. Instead, insurance companies pay acupuncturists according to the Fee Schedule for doctors and chiropractors who perform acupuncture.
The Fee Schedule indicates the code, a description of the service, its “relative value,” and “PC/TC split.” The court takes judicial notice of the 2003 Fee Schedule attached to Ms. Gandraber's affidavit and copyrighted 2007. Kingsbridge Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13 (2d Dept 2009) (taking judicial notice of a fee schedule in a no-fault case).
The Constitution of the State of New York provides at Article IV, Section 8, provides that no rule or regulation shall be effective until it is filed in the office of the department of state and that the legislature shall “provide for the speedy publication of such rules and regulations, by appropriate laws.”
The State Administrative Procedure Act § 202(1)(a) provides that before a rule is adopted an agency shall submit a notice to the secretary of state for publication in the state register, and the public shall be afforded an opportunity for comment. Worker's Compensation Law § 117(2) provides that the Worker's Compensation Board shall,
at least forty-five days prior to the adoption, amendment, suspension, or repeal of any rule or regulation of the board or of the chairman, give or cause to be given notice and offer any person or other agency an opportunity to present data, views or arguments, in accordance with the provisions of subdivision one of section two hundred two of the state administrative procedure act, providing, however, that the inadvertent failure to mail notice to any person or agency as provided therein shall not invalidate any rule or regulation adopted thereunder. A proceeding to contest any rule on the grounds of noncompliance with the procedural requirement of such subdivision must be commenced within four months from the effective date of the rule or regulation.
Insurance Law § 5108(a) provides that claims for services arising from an auto accident specified in Insurance Law § 5102 shall not exceed charges permissible under schedules established by the chair of the Worker's Compensation Board for industrial accidents except under unique circumstances. Medically necessary acupuncture services performed by a licensed acupuncturist are reimbursable under Insurance Law § 5102(a)(1), subject to the Fee Schedule. Great Wall Acupuncture v. GEICO General Ins. Co., 16 Misc.3d 23 (App Term 2d Dept 2007). Fees are “excessive” if they exceed the Fee Schedule. Natural Acupuncture Health, PC v. Praetorian Insurance Company, 30 Misc.3d 132(A) (App Term, 1st Dept 2011).
Plaintiff argues that the Fee Schedule was not published and that MVAIC may thus not apply the fees set forth therein. In Raz Acupuncture v. Geico General Ins. Co., NYLJ 1202478616165, Jan. 14, 2011 at *1 (Civ Ct, Kings County) relying on the same provisions, a judicial hearing officer found that the Fee Schedule was void as a matter of law because it was not published. However, under State Administrative Procedure Act § 102(2)(b)(xi)(2), publication is waived for fees under $100. In this case, each and every fee applied by both parties is below $100. Further mooting this argument is that, according to Raz Acupuncture, the Worker's Compensation Commission finally filed a fee schedule for acupuncturists in November 2011. Therefore, the court rejects plaintiff's argument regarding publication.
Alternatively, MVAIC argues that plaintiff failed to contest the schedule within 4 months of the effective date, as required by WCL § 117. MVAIC's argument presumes that plaintiff had notice of the schedule applicable to doctors and chiropractors. Did use of the term acupuncture” put acupuncturists on notice that this would be the fee applied to them? Until the scheduled fee for doctors and chiropractors was actually applied to acupuncturists, the court questions how acupuncturists would know to challenges fees payable to other practitioners. In its April 2007 decision, the court in Great Wall urged the superintendent of Insurance to adopt separate fee scheduled for acupuncturists. Therefore, the court rejects MVAIC's argument that plaintiff failed to timely object.
Here, the court finds MVAIC's reliance on the Fee Schedule is appropriate and rejects plaintiff's constitutional challenge.
Accordingly it is
ORDERED that the motion is granted and the complaint is dismissed; and it is further
ORDERED that the cross-motion is denied.