Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 2013 NY Slip Op 51860(U)(App. Term 1st Dept. 2013)
“The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.” (This looks like an old 97780 case)
Defendant’s prima facie entitlement to summary judgment
“[defendant properly limited payment to “charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 [2008]), specifically, the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [2009]; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]).”
Plaintiff failed to raise an issue of fact
“Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate.”
Note how the Appellate Term Second Department resolved the issues: “Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services”. Yet, the Court is still allowing Plaintiff’s to present proof to vault Great Wall II. Interesting.
