New Jersey fee schedule prevails

Surgicare Surgical Assoc. v National Interstate Ins. Co., 2015 NY Slip Op 25338 (App. Term 1st Dept. 2015)

(1) “Insurance Department regulation (11 NYCRR) § 68.6 provides that where a health service reimbursable under Insurance Law § 5102(a)(1) “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (emphasis added). We agree, essentially for reasons stated by Civil Court (46 Misc 3d 736 [2014]), that where a reimbursable health care service is performed outside the State of New York in a jurisdiction that has enacted a medical fee schedule prescribing the permissible charge for the service rendered, an insurer may properly rely on such fee schedule to establish the “prevailing fee” within the meaning of 11 NYCRR 68.6, and demonstrate compliance therewith by payment in accordance with that fee schedule.”

In one long paragraph, the Appellate Term has held that a no-fault fee schedule in a sister state will be deemed the appropriate fee schedule for services performed in the sister state.

(2) “We note that since the services here were rendered after April 1, 2013, the defense of excessive fees is not subject to preclusion (see 11 NYCRR 65-3.8[g][eff Apr. 1,2013).”

Lack of conformity of billing in accordance with the fee schedule is a defense for all services rendered after April 1, 2013.    This is important for a reason you may not appreciate.  Many defense counsel are arguing that the bizarre wording of 65-3.8(g) has made billing in conformity with fee schedule and proof that the service was rendered part of the prima facie case.  At face value, this is a good argument.  The problem with this argument is the evil 3.8(g) was ameliorating was the precluability of the defense of fee schedule and billing fraud.  The two cases that 3.8(g) sought to overrule were Mercury v. Encare and Fair Price v. Travelers.  Taken in the light that this must be taken in, the Court has held that the “defense excessive of fees is not subject to preclusion”

It has been my fervent believe that a provider should need to plead and prove the foundation elements of a no-fault action – necessity, causal relationship, overdue and damages.  The Courts have uniformly held that all four elements are satisfied through submission of bill or, in the context of Domotor, proof of receipt of a global denial or its equivalent.  As they say, deal with it.

Also, a favorable mention to Aaron Peretta for prosecuting this appeal.  It was a mine field – and I have stepped in too many lately – but he did the best he could.