No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

The matter of Great Wall Acupuncture, P.C. v Geico Ins. Co. 2009 NY Slip Op 29467 (App. Term 2d Dept. 2009) was an interesting opinion involving acupuncture fee schedule cases.  This case completes the equation as to what is necessary for an insurance carrier that pays the chiropractor rate for acupuncture to prevail at trial.  Upon showing that acupuncture services were paid at the chiropractor rate, a prima facie defense as a matter of law has been satisfied.

Thus, as long as the pertinent portions of the fee schedule and a timely denial are in evidence, a defense verdict should be granted.  There is nothing that a plaintiff can do to rebut this prima facie showing.

Here are the pertinent portions of the opinion with some relevant observations.

“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”

• This portion of the opinion discusses the evidence that  in the Appellate Term’s opinion was sufficient to make a prima facie demonstration that the acupuncture services were billed in excess of the chiropractor fee schedule.

“A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see 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 (see 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]).”

• Here, the Appellate Term outlined the comparative licensure requirements between a licensed acupuncturist and a chiropractor licensed to practice acupuncture.  I would just note that Judge Gonzalez in Great Wall Acupuncture v. GMAC, 6/15/2007 N.Y.L.J. 22, (col. 3)(Civ. Ct. Bronx Co. 2007) engaged in a similar analysis, and came to a somewhat differing conclusion.
  

“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”

• All the insurance carrier needs to show is that the services were paid at the chiropractor acupuncture rate and a directed verdict in favor of an insurance carrier must be granted.

Hopefully, we will never see the words reasonable geographic value, or some variant of this phrase, ever again.