Defendant's, motion for an order pursuant to CPLR §3212, granting summary judgment dismissing the complaint is GRANTED.

The Defendant asserts, inter alia, that it properly paid the Plaintiff's claim in accordance with the New York State Workers' Compensation Medical Fee Schedule and that no money is owed. Defendant argues that controlling case law (Great Wall Acupuncture a/a/o Zayas v. GEICO General Ins. Co. 16 Misc 3d 23 (App. Term, 2d Dept, 2007) compels this Court to grant summary judgment to the Defendant inasmuch as the Defendant has paid Plaintiff's fees according to the Workers' Compensation Fee Schedule for such acupuncture services. Defendant argues that under the Great Wall decision "licensed acupuncturists must bill according to the chiropractic fee schedule for acupuncture treatment. (Piacentini aff. ¶ 10).

Plaintiff counters, through counsel, that the Great Wall decision did not "make a blanket determination that acupuncture services should always be paid at the chiropractic rate, but instead rendering (sic) its decision only on the matter before it at that time. (Gold aff. in opp. ¶ 7) It is not challenged that the Defendant timely denied each claim submitted by the Plaintiff. Plaintiff does challenge the lack of medical necessity defense set forth by the Defendant upon the ground [*2]that the denials did not set forth such defenses to payment.

A review of Great Wall decision reveals a few things. First, the Plaintiff in that case argued "that a licensed acupuncturist should receive a higher rate of reimbursement than the scheduled fee for acupuncture services rendered by a physician or a chiropractor because of the acupuncturist's extensive training in the area." (Great Wall, supra) Secondly, this argument was "rejected by the Department of Insurance, which limited the fee for licensed acupuncturists to either one or the other [chiropractors or physicians]." Id. Thirdly, "upon the record presented, we [the appellate court] apply the chiropractor fee schedule to the instant services." Id. Finally, the Court recognized that the Insurance Department "Superintendent's interpretation of its regulations, . . . will be upheld in deference to his special competence and expertise with respect to the insurance industry . . . . " Id.

The NYS Insurance Department has published a proposed thirty-second amendment to Regulation No. 83 (11 NYCRR 68) ("No Fault" Regulation) wherein the Superintendent proposed a new Part L which would establish a fee schedule for licensed acupuncturist services to not exceed "the maximum permissible charge for a licensed physician certified to perform acupuncture . . . " www.ins.state.ny.us/r_prop/pdf/rp83a32t.pdf (Last accessed Feb. 9, 2011)

The Regulatory Impact Statement for the proposed amendment took note of the Great Wall decision when it stated, "[t]here is also an appellate term decision that established an insurer's payment of services using the workers' compensation fee for chiropractors providing acupuncture services as being in compliance with Section 68.5(b) of Regulation 83." The statement, however, went on to conclude that "[s]ince the acupuncture treatments are the primary service performed and billed by licensed acupuncturists and the acupuncturist is not permitted to bill for any other services, the superintendent has determined that such treatments merit reimbursement at the same rate that medical doctors receive for comparable services." www.ins.state.ny.us/r_prop/html/rp83a32s.htm (last accessed Feb. 9, 2011)

While it appears that this amendment has not yet been adopted it provides the Court with a working understanding of the Superintendent's interpretation of the Department's presently constituted regulations regarding the reimbursement for acupuncture services. This Court's understanding of the Superintendent's interpretation is that the regulation as presently adopted does not provide appropriate or satisfactory reimbursement for the services provided by licensed acupuncturists.

It is clear that the Superintendent's stated position regarding fee schedules for licensed acupuncturists is in contravention to that of the Appellate Term. Notwithstanding the foregoing, this Court is constrained to follow the appellate authority of Great Wall until such time as the Superintendent's proposal is adopted and promulgated absent any facts that make this case distinguishable. The Court finds that the case is not distinguishable from Great Wall and as such is compelled to follow it. [*3]

Upon the record before the Court, the Court finds that the Defendant has sustained its burden to establish that the it timely paid the Plaintiff's claims in part consistent with the Great Wall decision and it timely denied the claim in part for such fees that were over and above the chiropractic fee schedule to the subject services. The reasoning set forth in its denial of claim forms and supporting documents is sufficiently specific to satisfy the regulatory requirements to "apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated (citations omitted)." Nyack Hosp. v. State Farm Mutual Auto Ins. Co., 11 AD3d 664 (2d Dept, 2004).

The Court notes that as late as January 26, 2011, the Appellate Term, Second Department in Sung Bok Lee, L.Ac a/a/o Miriam Kassin v. Metropolitan Property and Casualty Ins. Co., 2011 NY Misc Lexis 143, has reaffirmed the validity of Great Wall determination for utilizing chiropractic fee schedules. The Court stated, "[i]t was proper for the defendant to use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for services rendered by a licensed acupuncturist (citations omitted)." Id.

In view of the foregoing, the Court need not address the issue of lack of medical necessity defense. The Court does note that the Defendant's chiropractor's statement "declare[d] under penalties of perjury" is not competent evidence. (CPLR § 2106)

Accordingly, the defendant's motion for summary judgment is GRANTED.

SO ORDERED.



____________________________

Terence P. Murphy

District Court Judge

Dated: March 30, 2011