September 30, 2013
Doctor of Medicine in the House, P.C. a/a/o BULLEN, AKIL, Plaintiff,
Allstate Ins. Co., Defendant.
Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth Edward A. Cespedes, Esq. Attorney for Plaintiff.
Abrams, Cohen & Associates David A. Turchi, Esq. Attorney for the Defendant.
C. Stephen Hackeling, J.
The above captioned medical service provider plaintiff brings this action pursuant to the provisions of Sec. 5106 of the New York Insurance Law to recover $1, 876.76 of "no-fault" claim benefits after the defendant timely denied same upon the grounds that the claim was not "properly rated" and that the fees were in excess of the Workers Compensation fee schedule.
The parties stipulated to a framed issue trial and ask the Court to direct judgment resolving the issue of whether paragraph 11 of the New York Compensation Medical Fee Schedule limits claims reimbursement to 8.0 units (codes) per day for each provider individually or for all provider claims cumulatively. It is the defendant insurance company's position that the provisions of 11 CRR-NY 65-3.15 require the Court to interpret paragraph 11 as an "exhaustion" regulation, similar to the $50, 000.00 claim limitation contained therein, which acts as a bar to all subsequent claimants. The plaintiff's contention is that the 8 unit rule is applied per claim and is not a bar to subsequent claimants.
The undisputed facts are that the plaintiff medical provider timely submitted claims for assorted code procedures constituting 10 units. It is the defendant's undisputed contention that prior to the receipt of the plaintiff's claim (and or verification responses) that the defendant already had reimbursed other providers for 8.0 units of services and it was therefore entitled to deny the plaintiff's claim.
11 NYCRR 65-3.15 provides as follows:
Computation of basic economic loss:
When claims aggregate to more than $50, 000.00 payments for basic economic loss shall be made to the applicant and/or an assignee in the order in which each service was rendered or each expense was incurred, provided claims therefor were made to the insurer prior to the exhaustion of the $50, 000.00. If the insurer pays the $50, 000.00 before receiving claims for services rendered prior in time to those which were paid, the insurer will not be liable to pay such late claims. If the insurer receives claims of a number of provider of services, at the same time, the payments shall be in the order of rendition of services.
Paragraph 11 of the New York Compensation Medical Fee Schedule provides:
Multiple Physical Medicine Procedures and Modalities:
When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less. The following codes represent the physical medicine procedures and modalities subject to this rule...
The parties advised the Court that the proferred issue is a matter of first impression and that no reported precedent exists which interprets paragraph 11 of the Physical Medicine, New York Workers' Compensation Medical Fee Schedule. The Court's independent research corroborates this fact.
It is the Court's determination that the claim benefit exhaustion concept described in regulation 11 NYCRR 65-3.15 is inapplicable to the excessive fee limitations imposed by paragraph 11 of the New York Compensation Medical Fee Schedule. They are distinct and separate regulatory mechanisms which make no reference to each other. The Sec. 65-3.15 $50, 000.00 policy limit is a "non-waivable" defense which need not be raised in the defendant's denial of claim. See New York Pres. Hosp. v. Allstate Ins. Co., 12 A.D.3d 579 (N.Y.A.D. 2nd Dept. 2004); Westchester Med. Ctr. v. Allstate Ins. Co., 17 Misc.3d 1134 (A) (NY Sup. Ct. Nas. Co. 2007). The paragraph 11 excessive fee schedule defense is waivable and must be timely asserted in its claim denial or it is precluded from being thereafter interposed. See Triboro Chiropractic and Acupuncture, PLLC v. New York Centr. Mut. Fire Ins. Co., 7 Misc.3d 138 (A), (App. Term 2nd & 11th Dist. Second Dept. 2005); citing to Presbyterian Hosp. of NY v. Maryland Cas Co., 90 N.Y.2d 274 (NY 1997).
The purpose of the Workers' Compensation Medical Fee Schedule is to prevent "excessive billing" by each individual provider and not to create an "exhaustion" of benefits competition between claimants as is clearly the intent of Sec. 65-3.15. The fee schedule is a guideline on how to properly fill out and submit a claim. Such a finding is consistent with the Court of Appeals direction to interpret "no-fault" regulations in such a manner as to not frustrate the legislative intent of requiring prompt payment of benefits. See Nyack Hosp. v. Gen. Motors Accept. Corp., 8 N.Y.3d 294 (NY 2007), citing to Med. Soc. of NY v. Serio, 100 N.Y.2d 854 (NY 2003). Paragraph 11 does not indicate that it regulates benefits for "all" claims on any given day.
The regulating authority could have easily included the phrase "for all claimaints", if that was its intent. The interpretation of regulations must be consistent with its authorizing statute. See Luxenberg v. Strictman, 144 N.Y.S.2d 296 (NY Sup. Ct. 1955) citing to Lightbody v. Russell, 293 NY 492 (NY 1940). See also generally, Borealiv v. Axelrod, 71 N.Y.2d 1 (NY 1987).
Accordingly, the Court enters judgment for the plaintiff allowing reimbursement for 8 of its claims' 10 billing units, in the sum of $1, 876.76 plus appropriate statutory interest, attorneys fees and costs.