Fee Schedule/not precluded

Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 2018 NY Slip Op 50095(U)(App. Term 2d Dept. 2018)

“Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff’s claims.”

“As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances … for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 ; ).”

This is what I take from this case.  First, an untimely denial is not fatal to a defendant’s fee schedule defense.  Second, a late payment in full (where there is a fee schedule defense) will not require interest payment provided there was an overbilling.  And again, a certified coding affidavit will knock out the modality billing if properly paid in the first instance (I assuming there is modality billing here)

Related Articles

• Understanding Medical Billing and Down-Coding in New York No-Fault Insurance Claims
• Fee Schedule Defense Requirements in No-Fault Insurance Cases
• Competent evidence requirements for fee schedule defenses
• First application of 11 NYCRR 65-3.8(g)(1)(ii)
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2018 decision, 11 NYCRR 65-3.8 and related fee schedule regulations have undergone amendments, particularly regarding denial requirements and fee limitations for medical services. The specific provisions cited regarding the April 1, 2013 effective date and payment restrictions may have been modified. Practitioners should verify current regulatory language and any subsequent court interpretations of fee schedule defense requirements.