NO ADDITIONAL REQUIREMENT ON PROVING PLAINTIFF’S PRIMA FACIA CASE IS CREATED

NO ADDITIONAL REQUIREMENT ON PROVING PLAINTIFF’S PRIMA FACIA CASE IS CREATED

EAST COAST ACUPUNCTURE, P.C. v. HEREFORD INSURANCE COMPANY, 26 N.Y.S.3d 684 Civil Court, City of New York, Kings County.

The insurance carrier alleged that Plaintiff now has an additional requirement in its prima facia case; of proving that a bill complies with the fee schedule as was imposed by the amended no fault regulations (11 NYCRR 65–3.8(g)(1)).  The amended regulations, in sum state:

“[p]roof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances: … (ii) 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.”

The Court held that the insurer’s objection to plaintiff’s alleged over-billing (in excess of the fee schedule) remains an affirmative defense and not a new element of Plaintiff’s prima facia case, stating:

As the Court of Appeals made clear in Viviane Etienne, “a medical provider seeking reimbursement from a no-fault insurer demonstrates its entitlement to reimbursement of overdue benefits when it proves that it submitted a completed claim form to the insurer. A claim is overdue if it is not denied or paid within 30 days of the insurer’s receipt of proof of claim” (id., at 510, 14 N.Y.S.3d 283, 35 N.E.3d 451). The language of 11 NYCRR 65–3.8(g)(1) does not conflict with the holding in Viviane Etienne. The regulation does not place any additional requirements on the medical provider, such as a requirement, in the general case, to substantiate the calculation of its fees. The plain language of the regulation requires that the insurance company determine if the medical provider billed its services in accordance with the applicable fee schedule. If the insurance company determines that the bill contravenes the fee schedule, the regulation states that the insurance company need not pay the bill. Therefore, the burden remains on the insurer to assert a defense that the provider billed in excess of the fee schedule.

The Court added:

Although the amendment does not change plaintiff’s prima facie burden, I find that the new language establishes that a fee schedule defense, for services after April 1, 2013, is not precluded if it is not asserted within 30 days of receipt of the claim. The regulation appears to be a carve-out from 11 NYCRR 65–3.8(a)(1), which states that “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, *686 which shall include verification of all of the relevant information requested pursuant to section 65–3.5 of this Subpart.”

Essentially, the insurance carrier may assert a fee schedule defense at any time.  This seems inline with the intent of the regulations.

This is also in line with other rulings in the first dept:

Saddle Brook Surgicenter, LLC v. All State Ins. Co., 48 Misc.3d 336, 344–45, 8 N.Y.S.3d 875 [Civ.Ct., N.Y. County, 2015]; Surgicare Surgical Assoc. v. Natl. Interstate Ins. Co., 50 Misc.3d 85, 88, 25 N.Y.S.3d 521 [App.Term, 1st Dept., 2015] ).

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