'Great Wall' Breached: STY PIP Acupuncturist Fee Schedule Thrown Into Doubt.

• Author: Rogak, Lawrence N.

* In New York PIP practice, health care providers are paid according to the Workers Compensation Fee Schedule. But not all kinds of treatment are covered by the Fee Schedule; one of those is acupuncture treatment performed by a licensed acupuncturist. The Fee Schedule has acupuncture rates for physicians and chiropractors (with the chiro rate being lower than the physician rate), but not for acupuncturists.

Since 2007, courts and arbitrators have used the rule from a case called Great Wall Acupuncture v Geico, which held that licensed acupuncturists "may" be paid at the chiropractor rate. The permissive "may" has, heretofore, been taken as a rule. But now the Appellate Division, First Department, takes the pegs out from under that presumed rule.

In Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C., 2019 NY Slip Op 08942, the No-Fault insurer brought a declaratory judgment action seeking a declaration that licensed acupuncturists are entitled to payment of no-fault insurance benefits only as set forth in the workers' compensation fee schedule for chiropractors. Supreme Court, New York County denied summary judgment to the insurer, and the Appellate Division affirmed.

"In this action, plaintiff no-fault insurers seek to resolve, as a matter of law, the question of the fee schedule applicable to reimbursement of licensed acupuncturists who provide services to eligible individuals injured in motor vehicle accidents.... Where a service is reimbursable but 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 the charges permissible for similar procedures under schedules already adopted or established (11 NYCRR 68.5[b]). The superintendent has not adopted a fee schedule applicable to licensed acupuncturists, requiring consideration of "charges permissible for similar procedures under schedules already adopted or established."

Global Liberty relied on a 2004 informal opinion letter of the Insurance Department, but that letter did not resolve the issue. It allows insurers to pay "the rates established for doctors and chiropractors," instead of a higher "prevailing fee in the geographic location of the provider," so long as there is a review "for consistency with the charges permissible for similar procedures" under either fee schedule...