Opinion
Index No. CV-702147-20/NY
02-09-2022
BALANCE ART ACUPUNCTURE P.C. as Assignee of Betar Ibrahim, Plaintiff, v. MVAIC, Defendant.
Marshall & Marshall, PLLC, Jericho (Alexis N. Levine, of counsel), for defendant. Law Offices of Gabriel & Moroff, PC, Rockville Centre, (Mitchell J. Poropat, of counsel), for plaintiff.
Marshall & Marshall, PLLC, Jericho (Alexis N. Levine, of counsel), for defendant.
Law Offices of Gabriel & Moroff, PC, Rockville Centre, (Mitchell J. Poropat, of counsel), for plaintiff.
Richard Tsai, J. In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint (Motion Seq. No. 001). Plaintiff opposes the motion and cross-moves for summary judgment in its favor against defendant (Motion Seq. No. 002). Defendant opposes the cross motion. The issue presented is whether plaintiff, an acupuncturist, is entitled to reimbursement for acupuncture services at physician rates, under Global Liberty Insurance Company of New York v. North Shore Family Chiropractic, PC, 178 A.D.3d 512, 513, 114 N.Y.S.3d 71 (1st Dept. 2019).
BACKGROUND
On August 21, 2018, plaintiff's assignor, Betar Ibrahim, was allegedly injured in an automobile accident (see defendant's exhibit A in support of motion, complaint ¶ 6). Plaintiff allegedly provided acupuncture services to Ibrahim, billed under CPT Codes 97810, 97811, 97813, and 97814 (among others), and submitted eight bills to defendant for dates of service from September 10, 2018 to April 9, 2019, in the total amount of $4,069.00 (id. ¶ 10; see also defendant's exhibits B-I in support of motion, NF-3 forms).
Defendant allegedly partially paid plaintiff $2,834.95, after reducing the billed amounts in accordance with the chiropractic fee schedule.
The chart below summarizes the bills at issue that were partially paid and/or denied:
| Defendant's Exhibit | Bill No. | Dates of Service | Bill Amount | Date Received | Date NF-10 Form Mailed | Amount Paid |
| B | 1 | 9/10, 9/12, 9/24, 9/25-9/26/18 | $558.98 | 11/1/18 | 2/21/2019 | $381.04 |
| C | 2 | 10/1, 10/2, 10/6, 10/8/, 10/10, 10/12, 10/15-10/17, 10/19-10/20, 10/23-10/24, 10/26, 10/29-10/30/18 | $1,368.23 | 11/14/18 | 2/20/2019 | $936.02 |
| D | 3 | 11/1-11/2, 11/5-11/6, 11/10, 11/16, 11/21/18 | $705.84 | 12/27/18 | 2/22/2019 | $513.20 |
| E | 4 | 12/4-12/5, 12/10, 12/17, 12/19, 12/22/18 | $513.60 | 1/17/19 | 2/25/2019 | $366.51 |
| F | 5 | 1/7, 1/11, 1/18, 1/28/19 | $322.79 | 2/21/19 | 3/6/19 | $220.82 |
| G | 6 | 2/4/19-2/25/19 | $338.20 | 3/19/19 | 4/2/19 | $238.56 |
| H | 7 | 3/18, 3/29/19 | $174.24 | 4/17/19 | 5/10/19 | $119.20 |
| I | 8 | 4/9/19 | $87.12 | 5/16/19 | 5/29/19 | $59.60 |
| Totals | $4,069.00 | $2,834.95 |
On June 29, 2020, plaintiff commenced this action seeking to recover the unpaid balance of $1,234.05, with interest, plus attorneys’ fees (see defendant's exhibit A in support of motion, summons and complaint). On August 31, 2021, defendant allegedly answered the complaint (see defendant's exhibit A in support of motion, answer and affidavit of service).
DISCUSSION
"On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of
any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action"
( Xiang Fu He v. Troon Mgt., Inc. , 34 N.Y.3d 167, 175, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019] [internal citations and quotation marks omitted]).
I. Defendant's Motion for Summary Judgment (Motion Seq. No. 001)
Defendant argues that the bills for acupuncture services were properly paid in accordance with the chiropractic fee schedule.
Pursuant to Insurance Law § 5108(a), the amounts to be charged by providers of health services "shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board except where the insurer determines that unusual procedures or unique circumstances justify the excess charge." To meet its prima facie burden that it fully paid the claims in accordance with the fee schedule, the defendant must submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller ( Merrick Med., P.C. v. A Cent. Ins. Co. , 64 Misc. 3d 142[A], 2019 N.Y. Slip Op. 51264[U], 2019 WL 3756776 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ; Renelique v. American Tr. Ins. Co. , 53 Misc. 3d 141[A], 2016 N.Y. Slip Op. 51526[U], 2016 WL 6206903 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2016] ; Oleg's Acupuncture, P.C. v. Hereford Ins. Co. , 58 Misc. 3d 151[A], 2018 N.Y. Slip Op. 50095[U], 2018 WL 559284 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018] ).
The affidavit must show that defendant properly applied the appropriate relative value units and conversion factor assigned to the CPT code(s) for the services rendered in calculating the amount plaintiff was entitled to be reimbursed (see Renelique v. American Tr. Ins. Co. , 57 Misc. 3d 145[A], 2017 N.Y. Slip Op. 51450[U], *1, 2017 WL 5013017 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017] ; see also Renelique , 53 Misc. 3d 141[A], 2016 N.Y. Slip Op. 51526[U], supra ; cf. Adelaida Physical Therapy, P.C. v. 21st Century Ins. Co., 58 Misc. 3d 135[A], 2017 N.Y. Slip Op. 51808[U], 2017 WL 6543449 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017] ). If defendant applied a CPT code different from the CPT code under which the services had been billed, the affidavit must provide an explanation for the reduction (see Renelique v. American Tr. Ins. Co. , 57 Misc. 3d 145[A], 2017 N.Y. Slip Op. 51450[U], at *1 ). Lastly, the applicable portion of the fee schedule must be annexed to defendant's papers ( Megacure Acupuncture, P.C. v. Clarendon Natl. Ins. Co. , 33 Misc. 3d 141[A], 2011 N.Y. Slip Op. 52199[U], 2011 WL 6142221 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2011] ).
Once the insurer meets its prima facie burden of showing that the amounts charged by a provider were in excess of the fee schedule, the burden shifts to the provider "to show that the charges involved a different interpretation of such schedule or an inadvertent miscalculation or error" ( Cornell Med., P.C. v. Mercury Cas. Co. , 24 Misc. 3d 58, 884 N.Y.S.2d 558 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2009] ).
Here, defendant met its prima face burden by showing that the acupuncture services were fully paid in accordance with the Workers’ Compensation fee schedule for acupuncture services performed by chiropractors ( Acupuncture Now, P.C. v. Global Liberty Ins. , 65 Misc 3d 146[A], 2019 N.Y. Slip Op. 51796[U], 2019 WL 5995832 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ; Acupuncture Now, P.C. v. GEICO Ins. Co. , 61 Misc. 3d 142[A], 2018 N.Y. Slip Op. 51643[U], 2018 WL 6073166 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018] ; Natural Acupuncture Health, P.C. v. Praetorian Ins. Co. , 30 Misc. 3d 132[A], 2011 N.Y. Slip Op. 50040[U], 2011 WL 135241 [App. Term, 1st Dept. 2011] ). Defendant submitted the affidavit of Joseph Howell, a claims representative who received training in the Workers’ Compensation fee schedule (Howell aff ¶ 2). Howell calculated the reimbursement rate for the acupuncture that Ibrahim allegedly received according to a chiropractor's rate (Howell aff ¶¶ 21-31). As Howell points out, the fee schedule indicates that the conversion factor for a chiropractor in Region IV, where plaintiff is located, is $5.78, and the Relative Value Units for CPT Codes 97810, 97811, 97813, and 97814 are 3.55, 3.04, 3.89, and 3.38, respectively (see defendant's exhibit L in support of motion, fee schedule). Thus, defendant maintains that, for CPT Code 97810, plaintiff was entitled to be reimbursed $20.52 (i.e., $5.78 x 3.55) per day; for CPT Code 97811, plaintiff was entitled to be reimbursed $17.57 (i.e., $5.78 x 3.04) per day; for CPT Code 97813, plaintiff was entitled to be reimbursed $22.48 (i.e., $5.78 x 3.89) per day; and for CPT Code 97814, plaintiff was entitled to be reimbursed $19.54 (i.e., $5.78 x 3.38) per day (id. ¶¶ 25-31).
These reimbursement rates are reflected in the Explanations of Reimbursement accompanying the NF-10 forms (see defendant's exhibits B-H in support of motion).
Although Howell is not a certified fee coder, his experience and training in Workers’ Compensation fee schedules is sufficient to establish defendant's prima facie burden that plaintiff was reimbursed at the rates of the chiropractic fee schedule (see Renelique v. American Tr. Ins. Co. , 53 Misc. 3d 141[A], 2016 N.Y. Slip Op. 51526[U] ; see also Healthy Way Acupuncture P.C. v. Metropolitan Prop. & Cas. Ins. Co. , 44 Misc. 3d 132[A], 2014 N.Y. Slip Op. 51127[U], 2014 WL 3718499 [App. Term, 1st Dept. 2014] ).
Plaintiff does not claim that defendant's calculations contain any arithmetic errors, or that Howell incorrectly applied the Relative Value Units. Rather, plaintiff argues that defendant should have applied the conversion factor for physicians, and that defendant has the burden to show that reimbursement at the chiropractic rate is reasonable, citing Global Liberty Insurance Company of New York v. North Shore Family Chiropractic, PC, 178 A.D.3d 512, 513, 114 N.Y.S.3d 71 (1st Dept. 2019). Plaintiff also relies upon an impact statement from the Insurance Department on a proposed regulation, which, if enacted, would have set the maximum permissible charge for treatment by a licensed acupuncturist at the maximum permissible charge for a licensed physician under the medical fee schedule (see plaintiff's exhibit B in support of cross motion and in opposition, at 12).
As plaintiff acknowledges, the Appellate Term, Second Department expressly held, "as a matter of law, ... 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 for such acupuncture services" ( Great Wall Acupuncture, P.C. v. GEICO Ins. Co. , 26 Misc. 3d 23, 24, 893 N.Y.S.2d 420 [App. Term, 2d, 11th & 13th Jud. Dists. 2009] ).
In Global Liberty Insurance Company of New York v. North Shore Family Chiropractic, PC , the Appellate Division, First Department ruled,
"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"
( 178 A.D.3d 512, 513, 114 N.Y.S.3d 71 [1st Dept. 2019] ). The Court ruled that the plaintiffs had not proffered sufficient evidence to meet their burden that the claims were improperly billed or were in excess of the amount permitted by the physician fee schedule ( id. at 513, 114 N.Y.S.3d 71 ). In any event, the Court found that the defendants raised an issue of fact as to whether the physician fee schedule should apply, because the defendants proffered an affidavit from a licensed acupuncturist who averred that he was consistently reimbursed by workers’ compensation insurers at physician rates over 15 years, which plaintiffs did not rebut ( id. at 514, 114 N.Y.S.3d 71 ).
Here, plaintiff submitted no evidence that it had been consistently reimbursed at physician rates like the acupuncturist in Global Liberty Insurance Company of New York. This court does not read Global Liberty Insurance Company of New York, 178 A.D.3d 512, 114 N.Y.S.3d 71 as broadly as plaintiff urges. In this court's view, Global Liberty Insurance Company of New York does not stand for the proposition that the acupuncturist decides which fee schedule applies, as urged by plaintiff's fee coder. If that were the case, then every acupuncturist would therefore opt to be reimbursed at the higher conversion factor for physicians. The only objective criteria that Global Liberty Insurance Company of New York set forth as to whether a licensed acupuncturist could be reimbursed at physician rates was that insurers had historically reimbursed that particular licensed acupuncturist at physician rates. The impact statement from the Insurance Department on a proposed regulation is not dispositive. In 2004, the Insurance Department had issued an opinion that, under Section 65.8 (b), "it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service" (Ops Gen Counsel NY Ins Dept No. 04-10-03 [October 2004], https://www.dfs.ny.gov/insurance/ogco2004/rg041003.htm [accessed February 8, 2022] [emphasis added]). In the impact statement, the Insurance Department justified the proposed regulation that acupuncture treatments are the primary service performed by licensed acupuncturists. Inasmuch as this was already known to the agency, when it previously issued the opinion in 2004, the Insurance Department essentially offered no adequate explanation for the change in its interpretation that the limit should be at rates established for doctors, and so the agency is not entitled to any deference (see Matter of Terrace Ct., LLC v. New York State Div. of Hous. and Community Renewal, 18 N.Y.3d 446, 453, 940 N.Y.S.2d 549, 963 N.E.2d 1250 [2012] ). In any event, "interpretations contained in such documents as opinion letters, policy statements and manuals lack the force of law and, therefore, are not entitled to such deference" ( Matter of Riverkeeper, Inc. v. Seggos , 60 Misc. 3d 462, 479, 75 N.Y.S.3d 854 [Sup. Ct., Albany County 2018] ). Additionally, plaintiff does not dispute defendant's contention that the proposed regulation was never adopted.
Thus, plaintiff failed to raise a triable issue of fact in opposition ( Acupuncture Now, P.C. v. Global Liberty Ins. , 65 Misc. 3d 146[A], 2019 N.Y. Slip Op. 51796[U] ; Natural Acupuncture Health, P.C. , 30 Misc. 3d 132[A], 2011 N.Y. Slip Op. 50040[U] ).
II. Plaintiff's Cross Motion for Summary Judgment (Motion Seq. No. 002)
"A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law"
( Ave T MPC Corp. v. Auto One Ins. Co. , 32 Misc. 3d 128[A], 2011 N.Y. Slip Op. 51292[U], 2011 WL 2712964 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2011] ). Once plaintiff meets its prima facie burden, the burden shifts to defendant "to show that it has a meritorious defense and that such a defense is not precluded" ( Urban Radiology, P.C. v. GEICO Gen. Ins. Co. , 39 Misc. 3d 146[A], 2013 N.Y. Slip Op. 50850[U], 2013 WL 2301552 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2013] [internal citation omitted]).
Plaintiff's cross motion for summary judgment in its favor against defendant is denied. Plaintiff failed to establish that defendant had issued denials that were without merit as a matter of law. As discussed above, defendant established that defendant properly relied upon the chiropractic fee schedule to adjust the submitted bills.
CONCLUSION
It is hereby ORDERED that defendant's motion for summary judgment dismissing the complaint (Seq. No. 001) is GRANTED, and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk, upon submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff's cross motion for summary judgment in its favor against defendant (Seq. No. 002) is DENIED.
This constitutes the decision and order of the court.