Civil Court of the City of New York, New York County, February 9, 2022

Marshall & Marshall, PLLC, Jericho (Alexis N. Levine of counsel), for defendant.

Law Offices of Gabriel & Moroff, PC, Rockville Centre (Michael J. Poropat of counsel), for plaintiff.

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint (mot seq No. 001). Plaintiff opposes the motion and cross-moves for summary judgment in its favor against defendant (mot seq No. 002). Defendant opposes the cross motion. The issue presented is whether plaintiff, an acupuncturist, is entitled to reimbursement for acupuncture services at physician rates, under Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C. (178 AD3d 512, 513 [1st Dept 2019]).

On August 21, 2018, plaintiff's assignor, Betar Ibrahim, was allegedly injured in an automobile accident (see defendant's exhibit A in support of mot, complaint ¶ 6). Plaintiff allegedly provided acupuncture services to Ibrahim, billed under Current Procedural Terminology (CPT) codes 97810, 97811, 97813, and 97814 (among others), and submitted eight bills to defendant for dates of service from September 10, 2018, to April 9, 2019, in the total amount of $4,069 (id. ¶ 10; see also defendant's exhibits B-I in support of mot, NF-3 forms).

Defendant allegedly partially paid plaintiff $2,834.95, after reducing the billed amounts in accordance with the chiropractic fee schedule.

The chart below summarizes the bills at issue that were partially paid and/or denied:

The Instant Action

On June 29, 2020, plaintiff commenced this action seeking to recover the unpaid balance of $1,234.05, with interest, plus attorneys' fees (see defendant's exhibit A in support of mot, summons and complaint). On August 31, 2021, defendant allegedly answered the complaint (see defendant's exhibit A in support of mot, answer and aff of service).

"On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action" (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [citations and internal quotation marks omitted]).

I. Defendant's Motion for Summary Judgment (Mot Seq No. 001)

Defendant argues that the bills for acupuncture services were properly paid in accordance with the chiropractic fee schedule.

Pursuant to Insurance Law § 5108 (a), the amounts to be charged by providers of health services "shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers' compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge." To meet its prima facie burden that it fully paid the claims in accordance with the fee schedule, the defendant must submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller (Merrick{**74 Misc 3d at 965} Med., P.C. v A Cent. Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Renelique v American Tr. Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Oleg's Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

The affidavit must show that defendant properly applied the appropriate relative value [*3]units and conversion factor assigned to the CPT code(s) for the services rendered in calculating the amount plaintiff was entitled to be reimbursed (see Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51450[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Renelique, 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U]; cf. Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A], 2017 NY Slip Op 51808[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). If defendant applied a CPT code different from the CPT code under which the services had been billed, the affidavit must provide an explanation for the reduction (see Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51450[U], *1). Lastly, the applicable portion of the fee schedule must be annexed to defendant's papers (Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Once the insurer meets its prima facie burden of showing that the amounts charged by a provider were in excess of the fee schedule, the burden shifts to the provider "to show that the charges involved a different interpretation of such schedules or an inadvertent miscalculation or error" (Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Here, defendant met its prima facie burden by showing that the acupuncture services were fully paid in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors (Acupuncture Now, P.C. v Global Liberty Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51796[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Acupuncture Now, P.C. v GEICO Ins. Co., 61 Misc 3d 142[A], 2018 NY Slip Op 51643[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]). Defendant submitted the{**74 Misc 3d at 966} affidavit of Joseph Howell, a claims representative who received training in the workers' compensation fee schedule (Howell aff ¶ 2). Howell calculated the reimbursement rate for the acupuncture that Ibrahim allegedly received according to a chiropractor's rate (Howell aff ¶¶ 21-31). As Howell points out, the fee schedule indicates that the conversion factor for a chiropractor in region IV, where plaintiff is located, is $5.78, and the relative value units for CPT codes 97810, 97811, 97813, and 97814 are 3.55, 3.04, 3.89, and 3.38, respectively (see defendant's exhibit L in support of mot, fee schedule). Thus, defendant maintains that, for CPT code 97810, plaintiff was entitled to be reimbursed $20.52 (i.e., $5.78 x 3.55) per day; for CPT code 97811, plaintiff was entitled to be reimbursed $17.57 (i.e., $5.78 x 3.04) per day; for CPT code 97813, plaintiff was entitled to be reimbursed $22.48 (i.e., $5.78 x 3.89) per day; and for CPT code 97814, plaintiff was entitled to be reimbursed $19.54 (i.e., $5.78 x 3.38) per day (id. ¶¶ 25-31).

These reimbursement rates are reflected in the explanations of reimbursement accompanying the NF-10 forms (see defendant's exhibits B-H in support of mot).

Although Howell is not a certified fee coder, his experience and training in workers' compensation fee schedules is sufficient to establish defendant's prima facie burden that plaintiff was reimbursed at the rates of the chiropractic fee schedule (see Renelique v American Tr. Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U]; see also Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51127[U] [App Term, 1st Dept 2014]).

Plaintiff does not claim that defendant's calculations contain any arithmetic errors, or that Howell incorrectly applied the relative value units. Rather, plaintiff argues that defendant [*4]should have applied the conversion factor for physicians, and that defendant has the burden to show that reimbursement at the chiropractic rate is reasonable, citing Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C. (178 AD3d 512, 513 [1st Dept 2019]). Plaintiff also relies upon an impact statement from the Insurance Department on a proposed regulation, which, if enacted, would have set the maximum permissible charge for treatment by a licensed acupuncturist at the maximum permissible charge for a licensed physician under the medical fee schedule (see plaintiff's exhibit B in support of cross mot and in opp at 12).

As plaintiff acknowledges, the Appellate Term, Second Department expressly held, "as a matter of law, . . . an insurer {**74 Misc 3d at 967}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" (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

In Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C., the Appellate Division, First Department ruled,

"While courts have held 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' (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [emphasis added]; see also Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept 2013]), such holdings do not foreclose the use of the physician fee schedule in all cases" (178 AD3d 512, 513 [1st Dept 2019]).

The Court ruled that the plaintiffs had not proffered sufficient evidence to meet their burden that the claims were improperly billed or were in excess of the amount permitted by the physician fee schedule (id. at 513). In any event, the Court found that the defendants raised an issue of fact as to whether the physician fee schedule should apply, because the defendants proffered an affidavit from a licensed acupuncturist who averred that he was consistently reimbursed by workers' compensation insurers at physician rates over 15 years, which plaintiffs did not rebut (id. at 514).

Here, plaintiff submitted no evidence that it had been consistently reimbursed at physician rates like the acupuncturist in Global Liberty Ins. Co. of N.Y. This court does not read Global Liberty Ins. Co. of N.Y. (178 AD3d 512) as broadly as plaintiff urges. In this court's view, Global Liberty Ins. Co. of N.Y. does not stand for the proposition that the acupuncturist decides which fee schedule applies, as urged by plaintiff's fee coder. If that were the case, then every acupuncturist would therefore opt to be reimbursed at the higher conversion factor for physicians. The only objective criteria that Global Liberty Ins. Co. of N.Y. set forth as to whether a licensed acupuncturist could be reimbursed at physician rates was that insurers had historically reimbursed that particular licensed acupuncturist at physician rates.{**74 Misc 3d at 968}

The impact statement from the Insurance Department on a proposed regulation is not dispositive. In 2004, the Insurance Department had issued an opinion that, under section 65.8 (b) of Department Regulation 83, "it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service" (Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004], https://www.dfs.ny.gov/insurance/ogco2004/rg041003.htm [accessed Feb. 8, 2022] [emphasis added]). In the impact statement, the Insurance Department justified the [*5]proposed regulation on the ground that acupuncture treatments are the primary service performed by licensed acupuncturists. Inasmuch as this was already known to the agency, when it previously issued the opinion in 2004, the Insurance Department essentially offered no adequate explanation for the change in its interpretation that the limit should be at rates established for doctors, and so the agency is not entitled to any deference (see Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 18 NY3d 446, 453 [2012]). In any event, "interpretations contained in such documents as opinion letters, policy statements and manuals lack the force of law and, therefore, are not entitled to such deference" (Matter of Riverkeeper, Inc. v Seggos, 60 Misc 3d 462, 479 [Sup Ct, Albany County 2018]). Additionally, plaintiff does not dispute defendant's contention that the proposed regulation was never adopted.

Thus, plaintiff failed to raise a triable issue of fact in opposition (Acupuncture Now, P.C. v Global Liberty Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51796[U]; Natural Acupuncture Health, P.C., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U]).

II. Plaintiff's Cross Motion for Summary Judgment (Mot Seq No. 002)

"A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law" (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY {**74 Misc 3d at 969}Slip Op 51292[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Once plaintiff meets its prima facie burden, the burden shifts to defendant "to show that it has a meritorious defense and that such a defense is not precluded" (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [citations omitted]).

Plaintiff's cross motion for summary judgment in its favor against defendant is denied. Plaintiff failed to establish that defendant had issued denials that were without merit as a matter of law. As discussed above, defendant established that defendant properly relied upon the chiropractic fee schedule to adjust the submitted bills.

It is hereby ordered that defendant's motion for summary judgment dismissing the complaint (seq No. 001) is granted, and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk, upon submission of an appropriate bill of costs; and it is further ordered that plaintiff's cross motion for summary judgment in its favor against defendant (seq No. 002) is denied.