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December 23, 1993



The opinion of the court was delivered by: JOHN R. BARTELS

The plaintiffs and the defendant Allstate Insurance Company ("Allstate") cross-move under Rule 56 of the Federal Rules of Civil Procedure for summary judgment. Allstate's motion seeks dismissal of 29 causes of action, all of which seek reimbursement for medical services provided by plaintiff Mario Introna, D.C. ("Dr. Introna"), a licensed chiropractor, to patients covered by New York State's Comprehensive Motor Vehicles Insurance Reparations Act, Insurance Law §§ 5101, et seq., and the regulations promulgated thereunder (collectively the "No-Fault Law").

 This case requires interpretation of the state statutory and regulatory scheme governing the fees health providers may charge for medical services provided to patients receiving treatment under New York's No-Fault Law. Dr. Introna and co-plaintiff Chiro Med Health Services (Dr. Introna's billing service) sue to recover from Allstate the full amount of certain fees Dr. Introna charged his no-fault patients for various chiropractic treatments and diagnostic procedures. Each of the patients upon which Dr. Introna performed the services at issue was covered by a New York State No-Fault Insurance policy issued by the defendant Allstate. Neither the plaintiffs nor Allstate dispute application of New York's No-Fault Law to this action. For the reasons set forth below, the defendant's motion for summary judgment is granted in part and denied in part, and the plaintiffs' cross-motion likewise is granted in part and denied in part.


 New York's No-Fault Law provides coverage for "basic economic loss" sustained in connection with injuries resulting from the use or operation of a motor vehicle in New York State. N.Y. Insurance Law, § 5102 (McKinney's 1985 & Supp. 1993). To reduce and control costs charged for medical services provided to no-fault patients, the state legislature set limits on the fees physicians are permitted to charge by incorporating into the no-fault scheme the fee schedules established by the Workers' Compensation Board for industrial accidents. Insurance Law § 5108(a). These schedules determine exclusively the fees health providers may charge patients treated under the No-Fault Law. See Insurance Law § 5108(c); Roth v. Amica Mutual Ins. Co. 135 Misc. 2d 130, 514 N.Y.S.2d 864 (Dist. Ct. Suffolk Co. 1987) (health providers are limited to the payments authorized by Insurance Law §§ 5108[a] and [b] when providing services to no-fault patients).

 State regulations, codified at 11 N.Y.C.R.R. Part 68, further define and implement the above-mentioned statutory provisions, and establish, among other things, a detailed chiropractic fee schedule (Appendix 17-A, Part C) that sets maximum permissible charges for chiropractic services used to treat no-fault patients. The chiropractic fee schedule sets appropriate charges for office and home visits, examinations, emergency treatments, and various chiropractic radiology treatments. The regulations expressly include In the fee for office and home visits charges for "any and all chiropractic treatment and modalities" performed during the visit. See Appendix 17-A, Part C.

 Physicians are prohibited "from demanding or requesting any payment for services in excess of" the charges permitted under the regulations. 11 N.Y.C.R.R. § 68.0(f). See also Insurance Law § 5108(c) ("no provider of health services . . . may demand or request any payment in addition to the charges authorized" by the applicable fee schedule). However, fees in excess of those listed in the schedule may be warranted in limited circumstances. For example, 11 N.Y.C.R.R. § 68.5 authorizes an additional fee over that set forth in the schedule if an "unusual procedure or unique circumstance justifies the necessity for such charge." Accord Insurance Law § 5108(a) (charges for medical services performed may exceed those set forth in the schedule "where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge").

 Moreover, the regulations establish a method by which a health provider can determine additional charges for such "unscheduled" services. If a schedule applicable to the provider has been adopted, the provider must use a "comparable procedure" method of establishing rates for the unscheduled services, setting fees "consistent with other fees or unit values for comparable procedures shown in such schedule." 11 N.Y.C.R.R. § 68.6(a). In contrast, where no fee schedule applicable to the provider has been adopted, the provider determines "the permissible charge for such service [by adopting] the prevailing fee in the geographic location of the provider." 11 N.Y.C.R.R. § 68.6(b).


 Dr. Introna, as subrogee, submitted claims for reimbursement under 28 different New York State No-Fault insurance policies issued by Allstate, seeking a total of over $ 82,000 in compensation. (See Stipulation and Order, dated September 9 1993 [the "Stipulation and Order"], attached as Exhibit A to Plaintiffs' Memorandum of Law, P 7.) Allstate paid the sum of $ 32,150.41 to plaintiffs in satisfaction of 29 of the claims submitted under the various policies (Id. at P 8.) Allstate denied coverage for the remainder of the claims, asserting that Dr. Introna wrongfully charged fees for various services -- including unclassified diagnostic procedures, hot/cold packs, muscular stimulation, spinal manipulation, intersegmental traction, attended modality, muscle testing, range of motion, and plethysmography treatments -- in excess of those permitted under the No-Fault Law.

 The plaintiffs instituted this action, seeking a total of $ 50,079.29 in damages, with costs, interest, and attorneys' fees as provided in the No-Fault Law. The plaintiffs do not dispute that Dr. Introna charged his no-fault patients fees in excess of the office visit charges set forth In the No-Fault chiropractic fee schedule. Rather, they contend simply that Dr. Introna performed services during office visits that are exclusive of the permissible office visit fee. The plaintiffs assert that because the specific services at issue fall without the statutory definition of "treatments and modalities," the law entitles them to collect additional fees for services performed during office visits.

 Both parties cross-move for summary judgment. Allstate urges that under the clear terms of the No-Fault Law, the services at issue constitute customary "treatment and modalities" and thus are covered by previously reimbursed office visit fees. *fn1" Allstate contends that even if the plaintiffs do have a statutory right to additional compensation for what the plaintiffs apparently allege constitute "unique" or "unusual" procedures, the No-Fault Law unambiguously requires the plaintiffs to determine the appropriate fees for such services by the "comparable procedure" rule and not the "prevailing rate" method. The plaintiffs counter that as a matter of law the treatments at issue constitute unscheduled procedures justifying fees in excess of those charged for office visits, and that because no comparable procedures exist, Dr. Introna must determine his fees by the prevailing rates charged in his geographic location.


 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper where the record demonstrates clearly that "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 571-73 (2d Cir. 1991). The court's function on such a motion is to "assess whether there are any factual issues to be tried, while resolving ambiguities and drawing ...

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