Defendant State Farm Mutual Automobile Insurance Company ("State Farm"), a No-Fault insurance provider, moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiff Avanguard Medical Group, PLLC(b) ("Avanguard") is the assignee of Patria Martell, an individual covered under a policy of insurance issued by State Farm. The complaint seeks to recover payment of an assigned No-Fault insurance claim that was denied by State Farm on the basis of improper fee schedule billing. For the reasons stated herein, State Farm's motion for summary judgment is granted.

Avanguard is a duly accredited office-based surgical facility ("OBS facility") operated pursuant to New York State's Public Health Law Section 230-d, entitled "Office-based surgery." Avanguard alleges that it provided health services to Patria Martell for injuries she sustained during a September 16, 2012 automobile accident. Martell was covered under a policy with State Farm, which included payment of No-Fault benefits for her accident related healthcare. On [*2]January 16, 2013, Avanguard billed State Farm $2,550.00 for services it provided to Martell. The bill was based on a fee schedule that incorporated a "facility fee" in accordance with "The Products of Ambulatory Surgery" ("PAS") classification. State Farm received the bill on January 29, 2013. On February 15, 2013, State Farm responded with an NF-10 "Denial of Claim" form, refusing to pay Avanguard's bill in its entirety.

State Farm argues, inter alia, that it properly denied the claim because Avanguard, as an OBS facility, improperly billed pursuant to a PAS facility-fee-inclusive fee schedule authorized exclusively for use by facilities licensed under Article 28 of the New York State Public Health Law ("Art. 28").^[FN1] Avanguard acknowledges that it is not licensed under Art. 28, but contends that: (1) its bill was permissible because an OBS facility should be entitled under Insurance Law Section 5108(a) to recover its facility fee and (2) the PAS fee schedule, which authorizes facility fee reimbursement for Art. 28 facilities, does not expressly exclude an OBS facility from billing on the PAS fee schedule. On April 1, 2013, Avanguard commenced this action, alleging State Farm wrongfully denied its insurance claim and demands judgment for $2,550.00 plus interest and attorneys' fees.

State Farm alleges that Avanguard's insurance claim was properly denied because it was billed on a PAS fee schedule reserved by its terms exclusively for Art. 28 licensed facilities. See Ammendolea Aff. ¶ 18. New York State Insurance Law Section 5102(a)(1) provides for the reimbursement for "economic loss" relating to "all necessary expenditures incurred for medical and surgical services." Upper East Side Surgical, PLLC v. State Farm Ins. Co., 34 Misc 3d 1219(A), at *4 (Dist. Ct., Nassau County 2012). Compensation, pursuant to Insurance Law Section 5108(a), is, however, "limited to the amount permissible under the schedules prepared and established by the chairman of the workers' compensation board for industrial accidents." Id.

Among the established fee schedules are billing codes for reimbursement in accordance with the PAS classification system, which includes facility fee reimbursements expressly authorized for facilities licensed under Art. 28. Avanguard, however, is not a "Hospital" or "Ambulatory Surgery Facility" licensed under Art. 28, but rather an OBS facility under Public Health Law Section 230-d, which offers no provision for an OBS facility to recover a facility fee. Further, there is no prepared or established fee schedule pursuant to Insurance Law Section 5108(a) upon which an OBS facility may claim reimbursement for its facility fees. Thus, Avanguard fails to demonstrate how State Farm was obligated to reimburse its OBS facility fees pursuant to the PAS fee schedule.

Both parties reference the same pending legislation introduced in the New York State Senate aimed at amending Public Health Law Section 230-d to include, inter alia, authorization for OBS facilities to "seek payment from a health plan for the use of such facility." 2011 New York State Senate Bill S4597-B, ¶ 6. It is evident from the fact that the proposed legislation was never adopted into law that there is a necessity for a legislative enactment to require No-Fault insurers to reimburse OBS facility fees along the PAS fee schedule and that such reimbursement is not currently permitted. This conclusion can be based upon principles governing the construction and interpretation of statutes in New York: The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.

Despite the unresolved controversy over what rights and billing processes, if any, might apply to an OBS facility seeking to recover its facility fees, the rule emerging from judicial decisions cited by both parties in this case is that an OBS facility 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 PAS] system because it is not an Art. 28 facility." Upper East Side, 34 Misc 3d 1219(A), at *4; see also Gov't Emps. Ins. Co. v. Avanguard Med. Grp. PLLC. (GEICO), 2012 NY Misc. LEXIS 2687, at *8 (Sup. Ct., Nassau County May 31, 2012).

In Upper East Side, supra, the court found that the plaintiff, an OBS facility, was "entitled to reimbursement under Insurance Law § 5102(a)(1) for the medical/surgical services it provided to its assignor," but that it was not authorized to bill the insurer for its facility fees pursuant to the PAS classification system "because it is not an Art. 28 facility." 34 Misc 3d 1219(A), at *4. In doing so, the Upper East Side Court speculated that other billing alternatives might be available for an OBS facility to claim its facility fees. For example, in the absence of a [*3]prescribed OBS facility fee schedule, Avanguard could have billed the "prevailing fee in the geographic location of the provider." Id. at *4, citing 11 N.Y.C.R.R. 68.5(1)(b). Yet, despite this ruling, Avanguard submitted its insurance claims to State Farm based upon the PAS Art. 28 facility fee schedule.

Nor does the GEICO decision provide authority for an OBS facility to predicate its facility fee claim on the PAS fee schedule established for Art. 28 facilities. The court in GEICO denied the insurer's request for an order to stay all proceedings and preliminarily enjoin the OBS facility "from commencing any new actions, arbitrations, or proceedings against [the insurer]" wherein the OBS facility seeks to recover No-Fault benefits for facility fees. GEICO, supra, at *12. GEICO relates to any facility fee reimbursement sought by an OBS facility and was not limited, as in this case, to the insurer's denial of the OBS facility fee claim predicated on the PAS fee schedule. Given the broad injuctive relief sought by GEICO, the court found that a triable issue existed as to whether an OBS facility may ever seek a facility fee from an insurer—pursuant to any billing method.

Finally, the parties both cite to statements published on the DOH's website reflecting its position concerning facility fee reimbursements to OBS facilities:

Accordingly, it is hereby ordered that State Farm's motion for summary judgment is granted, the complaint is dismissed, and the Clerk is directed to enter judgment accordingly. This constitutes the decision and order of this Court.

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Hon. James E. d'Auguste, J.C.C.