Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 50040(U)(App. Term 1st Dept. 2011)
“Defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff Spring Medical, P.C.’s claims for assigned first-party no-fault benefits. Defendant established through the affidavit of its claims examiner and excerpts from the Workers’ Compensation Medical Fee Schedule, which may be judicially noticed by this Court (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 [2009]), that the fees Spring charged for the medical services it rendered to the assignor exceeded the relevant rates set forth in the fee schedule. In opposition, Spring failed to raise a triable issue regarding [*2]defendant’s interpretation of the fee schedule or calculation of the applicable fees. Therefore, defendant’s motion for summary judgment dismissing Spring’s claims — which sought the difference between the amount Spring charged for the services and payments defendant made to Spring pursuant to the fee schedule — should have been granted (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [2009]).”
Note that in the First Department, the acupuncture fee schedule defense requires the annexing of the pertinent portions of the fee schedule and an explanation of why the chiropractor rate was chosen. Compare this to the Second Department standard where the court takes judicial notice that all an LAC is entitled to as a matter of law is the chiropractor rate.
By the way, I am just assuming the chiropractor rate was paid.
Mark my words. If Plaintiffs continue to push this issue in this Court, expect a broad based holding similar to that from the Second Department. This Court has no qualms about setting forth bright line rules when it sees the same issues before it – especially when they are related to PIP litigation.
3 Responses
Push they will J.T. Although it is how you push. The right kind of push got us a nice brightline test in the 2nd. If you do not timely pay the chiro rate and you lose you pay the geographical rate. So its not an auto chiro unless you pay it in the first place.
Not all the pushing up there was bad. E.G. did some good pushing in the midst of some awful pushing.
JT. I believe that the First Department is now accepting the Second Department cases and is in now basically saying that, as a matter of las, the chiropractic rate is applicable to acupuncturists. In my opinion, this is a non-issue. Simply put, until the the fee schdeule is ammended to the medical rate, the chiropractic rate applies in all Departments and at all times. If the plaintiff’s push this issue any further, they will be barking up the wrong tree.
I am not sure I agree with you. That may very well be the conclusion the First Department reaches in the next five or ten cases where they confront the issue. As of now, they are holding their cards close to their chest. But that is what the First Department historically has done in these types of cases.