Fee Schedule Defenses in NY No-Fault Insurance: St. Vincent Med Care Case Analysis

Legal Update: The 2011 St. Vincent reversal displaced the 2009 follow-up-verification ruling and required dismissal without prejudice. Read both decisions, not the original commentary alone.

Last reviewed: September 2026

St. Vincent is not an unqualified provider victory. In 2009, the Appellate Term denied the provider summary judgment on the bundling claim while allowing recovery on other claims. In 2011, the Appellate Division reversed the same order insofar as appealed from and dismissed the action without prejudice.

Read the reversal with the original note

The 2009 decision treated follow-up verification requests sent on day 30 as ineffective. The 2011 reversal rejected that conclusion under the circumstances presented. Because verification remained incomplete, the payment-or-denial period had not begun and the action was premature. This was not a merits ruling that every billed service was bundled.

Jason’s original discussion focuses on a different point: what the insurer needed to establish about the fee defense. His reference to muscle or range-of-motion testing was an inference; the 2009 opinion did not identify those codes. Neither that inference nor a claim’s survival establishes a general right to bill tests separately from an evaluation.

For a bundling dispute, identify the service date, codes and applicable ground rule. For a verification dispute, trace the requests and responses. They are different grounds for a motion.

Jason’s historical commentary

Jason’s 2009 observations are retained below. The muscle-testing identification was his inference, and the later verification reversal changes the procedural outcome. The passage is not a current billing rule:

This case is more notable for the fact that it was decided prior to, yet published after “Infinity v. Eveready”, as well as Justice Golia’s scathing dissent regarding many of the same concerns that the Court of Appeals discussed 6 years ago in “Medical Society v. Serio.”

The issue that I am writing about is something that I am sure nobody noticed. It involved the defendant’s failure to prima facie prove its fee schedule defense. The court said the following:

“In opposition, defendant argued that it timely denied plaintiff’s claim seeking to recover the sum of $228.55 for services rendered on February 22, 2006 on the ground that the fee sought was in excess of the amount permitted by the workers’ compensation fee schedule because the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Defendant established that it timely denied this claim”

It appears that the insurance carrier denied either muscle testing or range of motion testing based upon the worker’s compensation ground rule that prohibits compensation for certain services that are performed when an initial or follow-up evaluation is performed and paid. While many do not know this fact, this was the fee schedule issue that was presented in Rogy Medical, P.C. v. Mercury Ins. Co., 2009 NY Slip Op 50732(U)(App. Term 2d Dept. 2009), and it did not succeed.

Connect to the Encyclopedia

• Fee-schedule defense hub: cases, proof and later developments
• Infinity: follow-up verification in context
• Liberty Chiropractic: the unsupported unit premise
• Jodi Jacobs: the fee claim that remained unresolved
• Pavlova: a documentation request before denial
• Bronx Acupuncture (2019): the later verification decision

For review of a particular no-fault billing dispute, contact our office.