the unclassified diagnostic procedures, hot/cold packs, muscular stimulation, spinal manipulation, intersegmental traction, attended modality, muscle testing, range of motion, and plethysmography treatments performed by Dr. Introna are included in the fee scheduled for office visits, the Court must determine whether the subject services fall within the statutory definition of "treatment and modalities."
The parties do not dispute the basic facts underlying this controversy, and indeed agree that for purposes of this action Dr. Introna provided certain necessary chiropractic treatments that are reimbursable under the no-fault insurance policies issued by Allstate. (See Stipulation and Order, P 10.) Rather, the parties disagree as to the appropriate statutory classification of the services listed above. Thus, the threshold issue facing the Court on these cross-motions -- whether the regulatory fee for office visits encompasses the services performed here -- presents the Court with a question of statutory interpretation, and thus a question of law properly decided on motion for summary judgment. Heublein, 996 F.2d at 1461; New York City Health and Hospitals, 954 F.2d at 861; Jennings, 786 F. Supp. at 380.
In considering individually Allstate's motion and the plaintiffs' cross-motion for summary judgment, the Court finds inescapable the conclusion that the bulk of the procedures for which the plaintiffs seek additional recovery are, as a matter of law, "normal and customary procedures and treatments offered by chiropractors and are, therefore, deemed included under the charges set forth in the Chiropractic Fee Schedule for Office Visits." Tucciarone v. Progressive Ins. Co., No. 91-1981, November 19, 1992, pp. 6-7 (Sup. Ct. Schenectady Co. 1992). The Court reaches this determination only after giving careful consideration to the evidence submitted by the parties and bearing in mind the purposes underlying the No-Fault Law and the clear language of the statute.
For instance, the law is clear that fees for intersegmental traction treatments and spinal manipulation, two of the services at issue here, are included within the scheduled fee for office visits. See Tucciarone, supra at p. 6. Moreover, this Court need not examine evidence concerning industry norms and common practice to determine that application of hot/cold packs, simple range of motion exercises and/or tests, muscle tests, and "attended modality" treatments are neither "unusual" nor "unique" chiropractic services.
The only reasonable inference that can be drawn from the evidence presently before the Court is that the services listed above lie squarely within the range of normal and customary "treatments and modalities" contemplated by the No-Fault fee schedule. The routine nature of these treatments and the frequency with which Dr. Introna performed them fall far short of demonstrating "unique circumstances" justifying charges in excess of those previously reimbursed for office visits. To hold otherwise would permit separate billing for nearly every individual chiropractic treatment performed by Dr. Introna during an office visit. Such a result would subvert legislative intent and undermine the policy of reducing and controlling the costs associated with providing medical and health services to patients treated under the No-Fault Law.
Conversely, the Court holds that a number of other services at issue as a matter of law are sufficiently unusual to justify charges in excess of the office visit fee set forth in the chiropractic schedule. The services warranting additional fees here include the various unspecified diagnostic procedures and the plethysmography (which also is diagnostic in nature) See Tucciarone, supra at p. 6 (a "diagnostic testing vehicle rather than a routine treatment" generally will constitute a "non-scheduled fee generating procedure"); Studin v. Allstate Ins. Co., 152 Misc. 2d 221, 575 N.Y.S.2d 1001 (Dist. Ct. Suffolk Co. 1991) (holding that an electromyography examination, a diagnostic procedure, properly was billed separately under Section 68.6[a]). Thus, the Court holds that Allstate must compensate Dr. Introna for those additional fees associated only with the performance of these two categories of services.
B. Comparable Procedure v. Prevailing Fee
The correct method by which to measure the additional fees to which the plaintiffs are entitled implicates only the application of clear, unambiguous statutory language, and therefore can be disposed of summarily. See Heublein, 996 F.2d at 1461; New York City Health and Hospitals, 954 F.2d at 861. Although Dr. Introna asserts a right to charge the fee prevailing in his geographic location, under 11 N.Y.C.R.R. § 68.6(b), a health provider determines the appropriate charge for an unscheduled service by this method only where there has been no fee schedule adopted that applies to the provider. The plaintiffs cannot conceivably argue that there is no schedule limiting permissible fees charged by chiropractors when the chiropractic schedule is the subject of this litigation. Because the Workers' Compensation Board undeniably has established a fee schedule setting limits on permissible fees charged by chiropractors, Dr. Introna is bound by 11 N.Y.C.R.R. § 68.6(a), and must set his fees in accordance with those charged for comparable procedures.
C. Propriety of Plaintiffs' Additional Fees
Whether Dr. Introna charged his no-fault patients fees consistent with those charged for comparable procedures raises a question of fact that must be resolved at trial. Studin 152 Misc. 2d 221, 575 N.Y.S.2d 1001 (holding that fact issue remained concerning whether fees charged were consistent with those charged for comparable procedures). The defendant has not challenged the particular rates charged by Dr. Introna with any specificity, and the plaintiffs have offered no evidence in support of their contention that no comparable procedures exist. Thus, resolution of this issue necessitates further inquiry and the introduction of evidence demonstrating whether Dr. Introna charged his patients fees consistent with the usual charges for comparable services.
For the reasons set forth above, the defendant's motion for summary judgment hereby is GRANTED in part and DENIED in part as herein specified, and the plaintiffs' cross-motion for summary judgment hereby is GRANTED in part and DENIED in part as herein specified:
1. The plaintiffs are granted summary judgement on their claim that the defendant Allstate must compensate Dr. Introna for additional fees charged his no-fault patients for the performance of plethysmography and various diagnostic procedures;
2. Summary judgment is awarded to the defendant Allstate on its claim that the balance of services at issue here constitute "treatments and modalities" under New York's No-Fault Law, and thus charges for such services are included in previously reimbursed fees for office visits;
3. The plaintiffs' cross-motion is denied insofar as the Court holds that Dr. Introna must determine the additional fees to which he is entitled by means of the "comparable procedure" method outlined in 11 N.Y.C.R.R. § 68.6(a); and
4. A triable issue of fact remains concerning whether the fees Dr. Introna charged his no-fault patients were consistent with those charged for comparable procedures.
Dated: Brooklyn, New York
December 23, 1993
UNITED STATES DISTRICT JUDGE