Upper E. Side Surgical, PLLC v State Farm Ins. Co., 2012 NY Slip Op 50184(U)(Dis. Ct. Nassau Co. 2012)
“Plaintiff does assert, however, that there is no requirement in the Regulations that NYS Public Health Law Article 28 licensure is a prerequisite to No-Fault Claims reimbursement. The current applicable law, New York’s Office Based Surgery (OBS) Law passed on July 14, 2007 (Public Health Law § 230-d), requires merely that an office-based surgery facility must obtain and maintain full accredited status by a national-recognized accrediting agency approved by the Commissioner of Health. As to proof of same, Plaintiff provides as its Exhibit A, its certification that it was accredited from 02/27/2010 to 02/27/2011 by the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF), which included the time period of this claim. Under PHL § 230-d, AAAASF, is one of three accreditation entities which has been approved by the Commissioner. No claim is made by the Defendant that the Plaintiff provider is not in full compliance with the required registrations, certifications or accreditations to conduct its office-based surgery business under the applicable laws of New York, particularly PHL § 230-d.”
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“This Court finds that the Plaintiff is not authorized to be reimbursed for the medical/surgical services it provided to its assignor under the “facility fee” schedule in accordance with The Products of Ambulatory Surgery (PAS) classification system because it is not an Art. 28 facility. Plaintiff is, however, entitled to reimbursement under Insurance Law § 5102(a)(1) for the medical/surgical services it provided to its assignor”
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“The next question for the Court to answer is, “What is the rate of reimbursement?”
“Accordingly, inasmuch as no proof has been submitted that the Superintendent of Insurance has adopted or established a fee schedule applicable to the plaintiff/provider, a question of facts exists as to the amount of the charge for services. Moreover, no proof has been submitted as to the local geographic prevailing fee, which plaintiff provider would be entitled to be reimbursed for its services. While in certain instances, the workers’ compensation fee schedules have been utilized to established local prevailing fees, such is not the case with regard to a facility fee for office based surgery facilities, at least as far as the Court can discern. Thus, a trial of the issue is necessary.”
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My answer is that 68.5(b) is satisfied through finding what a nearby Article 28 facility would be compensated and pegging that amount to the compensation that would be due and owing to an accredited office based surgical center. So, a trial is probably not needed since Plaintiff would be entitled to the fee an Article 28 near its location is receiving. Another way of saying this is that the case should settle for the amount that would be paid to a nearby Article 28 facility.
6 Responses
Why I believe that the Court is right in holding that a non title 28 office based surgey center is entitled to recover under the no-fault law, they should still be limited to the PAS rate. 68.5 provides that if there is no set fee schedule for a type of provider (Office Based Surgery Center) you use the geographic rate, SUBJECT TO REVIEW BY THE SUPERINTENDENT OF INSURANCE FOR CONSISTENCY WITH OTHER FEES THAT HAVE ALREADY BEEN ADOPTED. The Workers Compensation Fee Schedule has alread adopted a PAS rate for Article 28 facilities which provide the same services as Office Based Surgery Centers. Therefore, as with a licensed acupuncturist and Great Wall, a no-fault insurer should be able to reduce the fee to the PAS rate.
Decision is bereft of any legal reasoning and actually not supported by the regs or statute. “The provider is not entitled to facility fee in the fee schedule…but entitled to something…not sure what…therefore, triable issue of fact.”
Acupuncturist analogy is not the same because they are actually licensed. If you are not licensed as an article 28 (as defined in 10 N.Y.C.R.R. § 86-4.1), you aren’t entitled to be reimbursed for a facility fee (as computed in 86-4.40). There is nothing in the fee schedule to indicate otherwise.
By the court’s own admission, it states “that there is a movement in the New York State Legislature to amend PHL § 230-d to provide authorization for an office based surgery facility to seek reimbursement for a facility fee if the health plan provides for reimbursement when the service is performed at an ambulatory surgery center or hospital, it has not yet been adopted by the Legislature.” As such, it hasn’t been adopted. OBS facilities from my understanding have more to do with collecting from Medicare, not no-fault.
Office-based surgery facilities ARE licensed. They are owned by doctors, as opposed to hospitals, which are owned by laymen. They are accredited by State-recognized accrediting agencies.
10 NYCRR § 86-4.1 is a Medicaid regulation, not a No-Fault regulation. Lack of Article 28 certification means that the office-based surgery center cannot bill Medicaid or Workers’ Comp for a facility fee. But, No-Fault has NEVER required a provider to be authorized to bill Workers’ Comp in order to be No-Fault. Your own doctor is still licensed, even if the doctor is not authorized to treat Workers’ Comp patients.
To say that being unable to bill Workers’ Comp or Medicaid is violation of licensing requirements is the latest fraud committed by insurance companies (the insurance fraud knife cuts both ways).
Office-based surgery practice are designed to lower costs for insurers and doctors alike. However, that design is limited to surgeries performed by licensees of the facility – namely the doctors accredited with that facility. Problems lie when these OBS accredited entities allow random chiropractors to come in for procedures who are completely unrelated to the OBS accreditation and bill under their own practices. That is not what OBS was designed for. That is what Article 28 was designed for. Accredited doctors of an entity using their OBS practice for a facility fee I believe was the true legislative intent – not to create an open door for any doctor to come in and use an operating room…
Alan, I accept what you say. What is the fee schedule. Should not the PAS rates serve as the main starting point?
Accreditation creates a system of quality assurance as well as reporting for “sentinel events” (a euphemism for a variety of negative outcomes up to and including death). 230(d) was passed “in response” to a blue ribbon panel created after several deaths in office-based surgery (almost entirely plastic surgery). To my knowledge, the panel and the legislature did not even consider issues relating to payment.
State governments have increasingly delegated their oversight role of all sorts of health care facilities including hospitals, nursing homes, and surgery centers to accreditation agencies because they are better qualified and do not require government funding.