By report?January 2, 2018
Bronx Acupuncture Therapy, P.C., as asignee of Mejia v Hereford Ins. Co., 2017 NY Slip Op 79291(U)(2d Dept. 2017)
This came out on July, 2017. The Court granted Hereford leave to argue that the failure to satisfy the “BR code” requirements of the fee schedule is fatal to a medical provider’s prima facie case. I am unsure if I agree since the Courts in New York consider all fee schedule issues “defenses”. My next thought is to state that the disclaimer based upon “BR” is sufficient to ultimately force a plaintiff to prove compliance with the rule. The theory for this comes from the “standing” jurisdiction in mortgage foreclosure cases. Pleading this as an affirmative defense – or in NF parlance through a disclaimer – requires an additional element of proof as part of the PF case – in this case compliance with the BR rule. But do I think my above theory is meritorious? Probably not.
If the Courts absent regulatory fiat will authorize billings short of provider fraud where a timely disclaimer is not issued, why should this be different.
Don’t get me wrong – I appreciate Hereford’s position. But after Amaze v. Eagle and Mary Immaculate Allstate (15 and 14 years ago, respectively), these are battles that bare no fruit.