GEICO v. Ananguard (Index #: 16313/11)(Sup. Ct. Nassau Co. 2012)
At the end of the day, a Nassau County Supreme Court justice (Sher, J.S.C.), following the reasoning of Judge Murphy in Upper East Side Surgical v. State Farm Ins. Co., found that PHL 230-d, 2998-3 and Ed. Law 6530(48), granted an OBS facility the right to perform office based surgical services. Based upon this factual predicate, the Court then found, that this type of facility may collect no-fault benefits (65-3.16[a][12]), and may bill for medical necessary treatment. Ins Law 5102(a)(1).
As such,Justice Sher 0concluded that an office based OBS does not need to possess an Article 28 license. (10 NYCRR 86-4.40).
As to reimbursement, the Court held that 11 NYCRR 68.5(b) was the barometer of reimbursement. In my mind, that would be the PAS code of an Article 28 in the same or adjacent geographical region.
Personally, I like the allure of Plaintiff’s arguments. The problem, however, is that 5102(a)(1) is so broad as to who could be compensated for rendered services.
The attorneys were: Plaintiff: Spina’s office. Defendant: John Belesi, Esq of Abrams Festerman
One Response
Based upon this decision, insurer’s should no longer make the all or the nothing argument that an Office Based Surgery Center or OBS is not entitled to recover no-fault benefits. Instead, insurers should concentrate on arguing that based upon 11 NYCRR Section 68.5(b),an OBS is only linmited to the same fee as an Article 28 facility. It is ridicuolous that an Article 28 Ambulatory Surgery Cener is only entitled to $1,667.66 for hosting a surgical procedure whereas an OBS can recover $5,000.00.
This is the same argument that insurer’s successfully used to reduce the fee payable to a licensed acupunturist to the chiropractic rate. The same analysis should apply to the OBS settig.
One final observation. On May 7, 2012, there was an intersting decision by Arbitrator Heidi Obaijulu, New York Vein Center v. Allstate, AAA Case No.: 412012001063. In this decision, the Arbitrator denied the applicant’s claim because she ruled that the certificate of accreditation that the applicant OBS facility had received from a recognized accrediting agency had expired three days prior to the MUA treatment that was performed.
The lower Arbitrator also suggested in her decision that in order to recover no-fault benefits the applicant OBS must be licensed in the particular specialty that corresponds to type of surgery being performed. In this case, the applicant OBS was licensed in Vascular Surgery whereas the service in dispute was MUA, a different specialty.
Finally, the lower Arbitrator stated that under the OBS statute, Public Health Law Section 230-d, only the owner-licensee of the OBS facility could perform the operation. In other words, unlike an Article 28 facility, an OBS could not rent out its facility to another doctor who is not an employee or owner licensee.
The decision is long and slightyly confusing. But it is worth reading and could form the next line of attack for no-fault insurers.