It came and I am surprised – but if everything is now done in New Jersey, what’s the long term impact?

Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 2015 NY Slip Op 01413 (2d Dept. 2015)

(1) “We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d.”

(2) “Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” (Insurance Law § 5108[a])[FN3]. Where Workers’ Compensation schedules have not been prepared for certain services covered under Insurance Law § 5102, Insurance Law § 5108 requires that the Superintendent of Financial Services establish schedules after consulting with the [*3]chairperson of the Workers’ Compensation Board and the Commissioner of Health”

(3) “The implementing and coordinating regulations of the Department of Financial Services [FN4]—11 NYCRR 65 3.16 (Regulation No. 68-C; “Measurement of no-fault benefits”)—refer, in turn, to “Regulation No. 83.” Regulation No. 83 (11 NYCRR 68.0) adopts the Workers’ Compensation schedules that were already in existence (see 11 NYCRR 68.1 ["Adoption of certain workers' compensation schedules"]; 12 NYCRR 329.3 ["Medical fee schedule; incorporation by reference"]), and establishes schedules for services not already contained in Workers’ Compensation schedules (11 NYCRR 68.2 ["Establishment of certain health provider schedules"]).”

(4) “Further, Avanguard points out that Regulation No. 83 includes a default provision in recognition that not all covered services will be contained in the applicable fee schedules.  This provision—11 NYCRR 68.5 (“Health services not set forth in schedules”)—provides a mechanism for determination of appropriate fees for those services that are included within the definition of “basic economic loss” but are not contained in a schedule. Avanguard contends that, under this “default” regulation, it is entitled to a facility fee and that this fee is the same fee provided to ambulatory surgical centers under article 28 of the Public Health Law.

(5)“the determination of what is a necessary expense must take Insurance Law § 5108 into account. There is no provision in the Workers’ Compensation schedules expressly providing for payment of facility fees for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. The absence of such a provision supports GEICO’s argument that a facility fee is not a necessary expense for medical services performed by a practice and in a facility accredited under Public Health Law § 230-d”

(6)“Section 68.5 Health services not set forth in schedules

“If a professional health service is performed which is reimbursable under section 5102(a)(1) of the Insurance Law, but is not set forth in fee schedules adopted or established by the superintendent, and:

“(a) if the superintendent has adopted or established a fee schedule applicable to the provider, then the provider shall establish a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule, subject to review by the insurer; or

“(b) if the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5; [emphasis added]).

Under this regulation, a provider may be entitled to reimbursement in situations when there is no fee schedule for a particular service. Avanguard cannot accurately assert that there is no existing fee schedule that determines the amount of a facility fee. Indeed, it is undisputed that Avanguard has consistently billed GEICO for facility fees based on the existing fee schedule and “PAS” codes that are applicable to Public Health Law article 28 ambulatory surgical centers (see 10 NYCRR 86-4.1, 86-4.40). Accordingly, there is indeed a fee schedule for facility fees. That schedule, however, it is not applicable to Avanguard. Thus, a prerequisite to application of the default provision is absent.

(7) “The conclusion that the default provision is inapplicable makes sense in light of its purpose. The default provision relates to particular procedures that do not appear on any existing fee schedule (see 11 NYCRR 68.5[a], [b]). A facility fee is not a fee for a particular medical procedure, but a blanket charge added to the billing for all procedures. In other words, Avanguard contends that, under the default regulation, an entire category of fees should be deemed compensable. We reject such a broad interpretation of the default provision, because the obvious intent of the default provision is to fill in discrete gaps in the schedules, not to make an entirely new category of “service” compensable”

Attorney fees for cases filed on or after February 4, 2015

11 NYCRR 65-4.6

The following limitations shall apply to the payment by insurers of applicants’ attorney’s fees for services necessarily performed in the resolution of no-fault disputes:

(a) If an arbitration was initiated or a court action was commenced by an attorney on behalf of an applicant and the claim or portion thereof was not denied or overdue at the time the arbitration proceeding was initiated or the action was commenced, no attorney’s fees shall be granted.

(b) If the claim is resolved by the designated organization at any time prior to transmittal to an arbitrator and it was initially denied by the insurer or overdue, the payment of the applicant’s attorney’s fee by the insurer shall be limited to 20 percent of the total amount of first-party benefits and any additional first-party benefits, plus interest thereon, for each applicant with whom the respective parties have agreed and resolved disputes, subject to a maximum fee of $1,360.

(c) For disputes subject to arbitration or court proceedings, where one of the issues involves a policy issue as enumerated on the prescribed denial of claim form (NYS form NF-10), subject to this section, the attorney’s fee for the arbitration or litigation of all issues shall be limited to a fee of up to $70 per hour, subject to a maximum fee of $1,400. In addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court.

(d) For all other disputes subject to arbitration or court proceedings, subject to the provisions of subdivision (a) of this section, the attorney’s fee shall be limited as follows: 20 percent of the total amount of first-party benefits and any additional first-party benefits, plus interest thereon, for each applicant per arbitration or court proceeding, subject to a maximum fee of $1,360. If the nature of the dispute results in an attorney’s fee that could be computed in accordance with the limitations prescribed in both subdivision (c) and this subdivision, the higher attorney’s fee shall be payable.

(e) Notwithstanding the limitations specified in this section, if the arbitrator or a court determines that the issues in dispute were of such a novel or unique nature as to require extraordinary skills or services, the arbitrator or court may award an attorney’s fee in excess of the limitations set forth in this section. An excess fee award shall detail the specific novel or unique nature of the dispute that justifies the award. An excess award of an attorney’s fee by an arbitrator shall be appealable to a master arbitrator.

(f) If a dispute involving an overdue or denied claim is resolved by the parties after it has been forwarded to the conciliation center of the appropriate arbitration forum or after a court action has been commenced, the attorney for the applicant shall be entitled to a fee, which shall be computed in accordance with the limitations set forth in this section.

(g) No attorney shall demand, request or receive from the insurer any payment of fees not permitted by this section. [FN1]

(h) Notwithstanding any other provision of this section and with respect to billings on and after the effective date of this regulation, if the charges by a health care provider, who is an applicant for benefits, exceed the limitations contained in the schedules established pursuant to section 5108 of the Insurance Law, no attorney’s fee shall be payable by the insurer. This provision shall not be applicable to charges that involve interpretation of such schedules or inadvertent miscalculation or error.

filed Jan. 20, 2015 eff. Feb. 4, 2015.

[FN1] Attorneys should be aware of the Appellate Division Rules prohibiting fees in connection with the collection of first-party no-fault benefits (22 NYCRR sections 603.7(e)(7), 691.20(e)(7), 806.13(f) and 1022.31(f)).

The law on signatures

People v. Haywood, 2015 N.Y. Slip Op. 00555 (2d Dept. 2015)

“The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” (Peoplev Duncan, 46 NY2d 74, 80-81; see People v Weldon, 111 NY 569, 575-576; Richardson, Evidence [Prince 10th ed], § 502). “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” (Larkin v Nassau Elec. R.R. Co., 205 NY 267, 270). Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence”’ (Jerome Prince, Richardson on Evidence § 6-411[b], at 407 [Farrell 11th ed], quoting Larkin v Nassau Elec. R.R. Co., 205 NY at 270; see also People v Lyons, 112 AD3d 849, 850People v Benson, 233 AD2d 749). Accordingly, we decline to disturb the trial court’s determination in this regard.”

This is interesting.

The securitization of debt does not divest party from having standing to prosecute action

American Express Bank FSB v Najieb, 2015 NY Slip Op 01177 (1st Dept. 2015)

“The securitization of plaintiff credit card issuer’s receivables did not divest it of its ownership interest in the account, and therefore did not deprive it of standing to sue to recover defendant’s overdue credit card payments”

This is interesting to say the least.

Failure to stipulate to an adjournment can be law office failure – sufficient to vacate a summary judgment loss on default

Santiago v Valentin, 2015 NY Slip Op 01159 (1st Dept. 2015)

“Plaintiff provided an attorney’s affirmation describing that the failure to submit opposition was due to a delay in receiving an updated medical report from plaintiff’s treating physician.

Further, plaintiff explained that after defendant denied his third request to stipulate to an adjournment, he believed the only recourse was to wait for a decision and order from the court, and thereafter, make a motion to vacate the default judgment. As such, there is no evidence in the record that plaintiff’s default was due to any deliberate, willful, or contumacious conduct.”

Waiver of the IME

De Sanchez v Trevz Trucking LLC, 2015 NY Slip Op 00622 (1st Dept. 2015)

“Under the circumstances, including that defendants’ orthopedic expert addressed all of plaintiff’s claimed injuries in his report and examination, and the fact that plaintiff appeared twice for the scheduled examination but the defendants’ expert refused to conduct the exam due to defendants’ failure to have an interpreter present, the court providently exercised its discretion in determining that defendants waived their right to conduct a neurological examination by failing to make arrangements [*2]necessary to perform the exam within the extended deadline set by the compliance conference order

Difference between condition order and standard order

Seck v Serrano, 2015 NY Slip Op 00596 (1st Dept. 2015)

“We note that the order was not a conditional, “self-executing” order, which required discovery to be complied with by a specific date, that becomes “absolute” on the specified date if the condition has not been met (see Wilson v Galacia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]). Rather, defendants were authorized to renew their application for dismissal if plaintiff failed to comply with the discovery demands by the 20-day deadline. Defendants did not so move, and months later, when they finally did, they were already in receipt of all discovery demanded pursuant to the order.”

Conditional orders can be deadly; standard orders are iffy.

Significant limitation v. Permanent consequential

Mejia v Ramos, 2015 NY Slip Op 00311 (1st Dept. 2015)

To the extent plaintiff contends the [surgical] report itself found abnormalities in the knee, such symptoms, without evidence of some permanent or significant limitation, do not constitute a serious injury under the statute (see Jno-Baptiste v Buckley, 82 AD3d 578, 578 [1st Dept 2011]). Contrary to plaintiff’s contention, defendants’ expert need not review plaintiff’s actual MRI films or intra-operative photographs to make a prima facie showing (see Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [1st Dept 2010]).

In opposition, plaintiff failed to raise a triable issue of fact as to the existence of a “permanent consequential limitation of use” of the knee. Although the report of his recent examination shows permanency, the persisting limitations noted are not sufficiently meaningful to sustain a permanent consequential limitation claim (see Arrowood v Lowinger, 294 AD2d 315, 316 [1st Dept 2002]). Plaintiff did, however, raise a triable issue of fact as to whether he sustained a “significant limitation of use” of the knee by submitting reports from his treating physiatrist and orthopedic surgeon finding significant limitations and positive clinical findings about 1½ months after the accident, and weeks before surgery (see Thomas v NYLL Mgt. Ltd., [*2]110 AD3d 613, 614 [1st Dept 2013]). Plaintiff also raised a triable issue of fact as to causation, since his surgeon concluded that the injuries he observed during surgery were traumatically-induced and causally related to the accident (see Vargas v Moses Taxi, Inc., 117 AD3d 560 [1st Dept 2014]; Prince v Lovelace, 115 AD3d 424 [1st Dept 2014]; Calcano v Rodriguez, 103 AD3d 490 [1st Dept 2013]). Based on his treatment and review of plaintiff’s medical records, the treating physiatrist also opined that the injuries observed during surgery were traumatic in nature and causally related to the accident (see McSweeney v Cho, 115 AD3d 572 [1st Dept 2014]; James v Perez, 95 AD3d 788, 789 [2012]).

The divorcing of “significant limitation” from “permanent consequential” has opened the portion of the floodgates in letting in threshold cases that Perl kept locked.  Now, the carriers have to eat it on the no-fault end and on the BI end.  Not sure this is what the legislature meant when it imposed a serious injury threshold.


The 120-day requirement does not apply to pro-se actions in the lower courts

Bryan L. Salamone, P.C. v Digiacomo, 2015 NY Slip Op 25025 (App. Term 2d Dept. 2015)

“After issue was joined, the matter was transferred to the arbitration calendar (see Rules of the Chief Judge [22 NYCRR] § 28.2 [b]) in September of 2012. (The record is silent as to whether the matter was ever arbitrated.) In June of 2013, plaintiff moved for summary judgment. By order dated July 1, 2013, the District Court denied plaintiff’s motion as untimely, on the ground that the motion had been made more than 240 days after the matter had been “transferred to the arbitration.”

“The District Court erred in finding that plaintiff’s time to make the motion for summary judgment commenced upon the matter being “transferred to the arbitration calendar,” since there is no such provision which governs the timeliness of a motion for summary judgment (see CPLR 3212 [a]; UDCA 1001, 1301; see also Uniform Rules for the District Courts [22 NYCRR] § 212.10). Inasmuch as no notice of trial, the District Court equivalent of a note of issue (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2006]), or certificate of readiness for trial had been filed (see e.g. Vinueza v Tarar, 100 AD3d 742 [2012]; Farrington v Heidkamp, 26 AD3d 459 [2006]; cf. Arbay v Sunoco, Inc., 31 Misc 3d 148[A], 2011 NY Slip Op 50977[U] [App Term, 9th & 10th Jud Dists 2011]), and there is no indication that the court clerk had fixed a date for trial (see UDCA 1301), plaintiff’s time to make its motion for summary judgment had not commenced. “

Just another reason why the 120-day limitation to file dispositive motions should not apply in Civil Court and District Court.  First, the CPLR deals with a Note of Issue, not a Notice of Trial.  Second, when one party is pro-se, that silly formality is dispensed with.  Thus, eve of trial summary judgment motions would be allowed.   There is no “rational basis” for why a different set of rules should apply in the general civil part for a party that has representation as opposed to a party who elects not to have representation.


Fee schedule vendor properly substituted for a claims rep. affidavit

Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co., 2015 NY Slip Op 50078(U)(App. Term 2d Dept. 2015)

“Defendant denied plaintiff’s claims on the grounds that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid for the billed-for services in accordance with the fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, the affidavit executed by a fee schedule adjuster [*2]for defendant’s vendor, Managed Care Network, established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue”

So here, you have a vendor’s affidavit establishing the merits of the fee schedule defense.  Generally, this type of issue can be handled through claims representative affidavit.

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