Great Wall Acupuncture, P.C. v Geico Ins. Co., 2009 NY Slip Op 29467 (App. Term, 2nd, 2009)
In this action by a provider to recover assigned first-party no-fault benefits, defendant had partially paid plaintiff’s claim prior to the commencement of the action. At trial, the parties stipulated to plaintiff’s prima facie case and further agreed that defendant had timely denied the unpaid portion of the claim on the ground that the charges for acupuncture treatments exceeded the maximum fees under the appropriate fee schedule. Additionally, pursuant to the parties’ stipulation, the claim form and the denial of claim form were admitted into evidence. After a nonjury trial on the issue of the propriety of the fees charged, the Civil Court granted judgment to defendant dismissing the complaint, and this appeal by plaintiff ensued.
A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (seesee 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]). Indeed, at trial, plaintiff’s witness, who was both a licensed acupuncturist and a licensed chiropractor, so testified. Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; 2004 Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct 2004] [http://www.ins.state.ny.us/ogco 2004/rg041003.htm]). Consequently, Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license ([*2]since it is undisputed that the instant defendant reimbursed plaintiff pursuant to the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement. Accordingly, the judgment dismissing the complaint is affirmed.
Like London Bridge, the Great Wall has fallen, or perhaps has been obliterated. Hail to the Appellate Term. Good job to the plaintiff for appealing this one. To quote our 43rd president post Katrina: “Brownie, you’re doing a heck of a job”
Hey it’s ole A.J. again rearing his ugly empty head. When he was just a boy his face caught on fire and his mother had to put it out with an ice pick. Now he lives Quasimodo like in the rafters of Queens Civil.
The decision does not change the existing law it merely reiterates it. Did you look at the stipulations. Did you see the strategy or are you still working on understanding Dan Medical.
One issue: Is the Chiro Fee Schedule rational. Court never addressed it. Eva hired the head of the New York Acupuncture Society. A licensed acupuncturist and chiropractor. He testified — Court did not cover it — that the Chiro fee schedule was adopted under the supposition that a Chiro Acupuncture Certification would be enacted. (He sat on the board with the Dept. of Insurance when these schedules were being created). Further the chiro acupuncture rate was low because it assumed that chiro and acupuncture would be delivered in one session with the same chiro. As such all that was needed was one prep time.
As such the application of the chiro fee schedule to Licensed Acupuncturists is irrational.
There are a number of well tailored test cases that were created by Ms. Gaspari to get a shot at the Appellate Division — not Term — with the issue.
Do you see the degree of intelligence, strategy and zealous advocacy. Who does that for their no fault clients.
Instead most No Fault firms — the big ones excluded — get a subpoena for bank records and give it to their client 6 weeks later saying its illegal because its only an attorney subpoena. Meanwhile the bank records have already been sent out.
Was that you A.J.?