United States District Court, S.D. New York
September 21, 2005.
JOSEPH GIACALONE, D.C., CHARLES SOLANO, D.C., GYSBERTUS DELAGE, ZOILA ALTY, LEANORA SMITH, and PABLO DIAZ, Plaintiffs,
DAVID WEHNER, as CHAIRMAN OF THE NEW YORK STATE WORKERS' COMPENSATION BOARD, and GREGORY V. SERIO, as SUPERINTENDENT OF THE NEW YORK STATE INSURANCE DEPARTMENT, Defendants.
The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
Two licensed chiropractors and four of their patients commenced
this action against David Wehner, Chairman of the New York State
Workers' Compensation Board, and Gregory Serio, Superintendent of
the New York State Insurance Department. The complaint alleges
that a fee schedule which sets the billing rates for the
treatment of patients pursuant to New York's workers'
compensation and no-fault insurance programs, violates
plaintiffs' federal constitutional rights under the due process
and equal protection clauses of the Fourteenth Amendment of the
Defendants move to dismiss plaintiffs complaint pursuant to
Fed.R.Civ.P. 12(b)(6). At the oral argument, I granted
defendants' motion with respect to all but the chiropractors'
equal protection claim. For the reasons that follow, defendants'
motion to dismiss that claim is granted.
The Workers' Compensation Law of New York is designed to
provide workers with a means of receiving compensation from their
employers for the treatment of workplace-related injuries. See
WCL § 13(a). New York's Comprehensive Motor Vehicle Insurance
Reparations Act, the "No-Fault Law", Ins. Law § 5101 et seq.,
provides a means "for compensating victims of automobile
accidents for their economic losses without regard to fault or negligence." Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295,
296, 727 N.Y.S.2d 378, 379 (2001). In accordance with the WCL,
the Workers' Compensation Board has promulgated fee schedules
setting forth the billing rates for the treatment of workers'
compensation patients, including the rates for chiropractic
services. See WCL § 13(a); 12 N.Y.C.R.R. §§ 348.1 and 348.2.
The fee schedules have been adopted by the Superintendent of the
Insurance Department to govern the rates for the treatment of
patients pursuant to the No-Fault Law. 11 N.Y.C.R.R. § 68.1.
Plaintiffs contend that the fee schedule deprives them of the
equal protection of the laws by providing lower rates for
chiropractors than for physical therapists performing the same
Both sides agree that the regulation attacked on its face in
this case does not involve a suspect classification which
requires strict scrutiny. Accordingly, the regulation "must be
upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification." F.C.C. v. Beach Comms.,
Inc., 508 U.S. 307, 313 (1993). A court "must look for
`plausible reasons' for the legislative action, whether or not
such reasons underlay the legislature's action." Beatie v. City
of New York, 123 F.3d 707, 712 (2d Cir. 1997) (citing United
States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980)).
The government "has no obligation to produce evidence to sustain the rationality" of the classification. Heller v. Doe,
509 U.S. 312, 320 (1993). The burden is on the plaintiff to disprove every
conceivable basis which might support the classification,
"whether or not the basis has a foundation in the record." Id.
Defendants argue that the difference in rates of chiropractors
and physical therapists is a rational means of containing the
costs of the workers' compensation and no-fault insurance
programs, an objective that plaintiffs concede is a legitimate
governmental goal. Physical therapists are subject to certain
cost limitations that do not apply to chiropractors. Under the
WCL and the fee schedule, absent preauthorization physical
therapists are limited to twelve office visits, to rendering
treatment over no more than forty-five calendar days, and to
billing no more than $500 in the aggregate for their services.
See WCL § 13-a(5); 12 N.Y.C.R.R. § 329.3. In addition, physical
therapists may only treat patients pursuant to a referral from a
licensed physician, dentist, podiatrist, or nurse practitioner
and in accordance with the diagnosis of the referring
professional. See Educ. Law § 6731(c). Under the fee schedule,
physical therapists are also subject to direct or indirect
physician supervision. See 12 N.Y.C.R.R. § 329.3. By contrast,
chiropractors are not subject to any of these limitations. These differences provide a rational basis for distinguishing
chiropractors from physical therapists in the setting of rates
for the workers' compensation and no-fault insurance programs. In
light of the limitations placed on physical therapists, the
Workers Compensation Board could reasonably have concluded that
physical therapists and chiropractors are not similarly situated,
and that compensating chiropractors at a lower rate per patient
would be a rational means of containing the programs' overall
Because it cannot be said that setting different rates for
chiropractors and physical therapists is irrational, the fee
schedule at issue does not deprive plaintiffs of the equal
protection of the laws as prohibited by the Fourteenth Amendment.
For the foregoing reasons, defendants' motion to dismiss
plaintiffs' equal protection claim is granted.
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