Great Wall is binding precedent on American Arbitration AssociationApril 30, 2013

Allstate Ins. Co. v Natural Healing Acupuncture, P.C., 2013 NY Slip Op 50645(U)(Civ. Ct. Kings Co. 2013)

“The arbitrator failed to mention, much less follow the Appellate Term’s decision in Great Wall Acupuncture v. GEICO Gen. Ins. Co., 16 Misc 3d 23 (App. Term, 2nd Dept. 2007), which addressed the issue and applied the fee schedule for licensed chiropractors to acupuncture services provided by licensed acupuncturists.  In Great Wall, the Appellate Term analogized licensed chiropractors to licensed acupuncturists based on the similar training they underwent for licensure in order to perform acupuncture services, while contrasting them to physicians, who only had to obtain certification in order to perform acupuncture. The Appellate Term further noted the Department of Insurance’s lack of “specific guidance as to which particular fee schedule should be applied to a licensed acupuncturist performing acupuncture,” and urged it to do so. Great Wall, supra at 24.

“Although acknowledging Great Wall, supra, and the fact that the proposed legislation to increase the reimbursement rates for both chiropractors and acupuncturists was still pending, the master arbitrator confirmed the award. The master arbitrator found that Allstate impermissible sought to have him conduct a de novo review, and that the lower arbitrator’s award had “a plausible basis in the evidence presented” and thus conformed to applicable law.”

“This Court does not understand the reasoning behind the master arbitrator’s award. Allstate did not seek a de novo or a factual review, as prohibited by Petrofsky, supra. Rather, petitioner argued that the decision was arbitrary and capricious and contrary to well settled law. This Court cannot countenance an award which finds that proposed or pending legislation trumps well established precedent, i.e. Great Wall, supra. Therefore, the award is vacated and the Court directs that the arbitrator calculate the fees owed to respondent in accordance with the fee schedule for licensed chiropractors who perform acupuncture.”

7 Responses

  1. Rookie says:

    I doubt that Judge Levine’s Order means that Abitrators are bound by Great Wall decision, a decision on which even the Appellate Term is beginning to loosen the morings. It will not be long until Great Wall will be overturned.

  2. Joe Armao says:

    Especially not when, if I remember correctly, the commentary to the proposed changes stated specifically that the Appellate Term’s decision was wrong.

  3. ALAN Klaus says:

    Great Wall was and is a terrible decision. It shoukd be based on the geographic region. This won’t change the way arbitrators think. They do what they feel is right not what case law says.

  4. Alan M. Elis says:

    The major problem with the Great Wall case is that it has been expanded beyond its scope. The regulations, and the Insurance Dept Opinion Letters, only allow an insurer to reduce a “prevailing rate.” When a provider bills at a “prevailing rate,” the insurer has the choice of which established fee schedule they may use to reduce the bill: either the physician or chiropractor schedule. When a provider bills at the established fee schedule for physicians, the regulations do not allow the reduction from one fee schedule to another (strict construction – if the regulations only allow the reduction of a prevailing rate, then the only thing that an insurer may reduce is a bill at a prevailing rate). The Great Wall decision must be read in conjunction with the regulations. The Appellate Term may not establish a fee schedule, because that it a rewriting of a regulation (remember separation of powers? – it applies to No-Fault too).

  5. Captain America says:

    Oh give me a break. The Captain knows some lawyers that worked heavily on the issue. They actually sent three cases in three different procedural postures up to the App Term 2nd. There was one that was tried. And two S.J.’s involving a fee schedule denial and a non fee schedule denial.

    They retained a separate and well respected purely appellate counsel.

    They hired the head of the Accupuncture Society in New York who actually took part in the legislative and regulatory wrangling. He testified [expert] that the only reason rates were established for Chiros and MDs that were low was because it pre-supposed that there would be efficiency. The Chiro and the Doctor would do the preliminaries as part of their respective fields and then go right to acupuncture insertions.

    The hookers for corporate money that comprise the court could give a damn.

    Why do you all act like there really is law.

  6. Hmmm says:

    Im just curious, since when does a review of a master arbitrator’s decision get decided by a civil court judge? Isn’t that limited strictly to the supreme court?

  7. Kurt Lundgren says:

    Hey Cap, weren’t those appellate counsel hired by the Red Skull, your nemesis. Does not evil triumph when good men do nothing?

    We need you now more than ever Marvel Super Hero. Throw that mighty shield at the Great Wall and see it thrown asunder. Since when is an acupuncturist a chiropractor, since when does 200 hours training equal 2000, since when are acupuncturists lessor mortals. Since when can Allstate charge the same rates as others when they are the crappier insurance company. I mean, if Allstate has an AM Best Rating of AA-, shouldn’t it, Cap, have to pay a lesser rate than say, State Farm, that has a solid AA+, as far as I can tell.

    Avengers assemble!!!!

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