Court Upholds Payment of Acupuncture Services at Chiropractic Rates

NO-FAULT – PAYING ACUPUNCTURE AT CHIROPRACTIC RATES – WORKERS COMPENSATION FEE SCHEDULE
Midwood Acupuncture, P.C. a/a/o Yensi Alan v. Allstate Ins. Co.
(NYC Civil, Kings Co., decided 3/6/2009)

Plaintiff and Allstate mutually stipulated that plaintiff proved its prima facie case and the defendant timely denied the claims. The acupuncture bills and denials were admitted into evidence, and plaintiff rested.  Allstate then moved to dismiss plaintiff's case, contending that an insurer is entitled to remit payment at the chiropractic rate indicated in the Workers' Compensation Fee Schedule. Plaintiff argued in opposition that Allstate was required to reveal its procedures for choosing the rate and the calculation of the amount. The court reserved its decision.

Allstate then presented its claim representative, who testified that the Workers' Compensation Fee Schedule is the tool used to pay healthcare providers. Since that schedule does not address licensed acupuncturists, Allstate had compared the educational and licensing requirements and found that the chiropractic requirements are closest to those for licensed acupuncturists. Therefore, the plaintiff was paid at the chiropractic rate. On cross-examination, the claim representative testified that he was not the representative who denied the plaintiff's claims, but indicated that the representative processed and issued the claims in accord with Allstate's policies and procedures, including using the Workers' Compensation Fee Schedule.

In granting judgment in favor of Allstate and dismissing the complaint, Kings County Civil Court Judge Genine Edwards held:

After due deliberation of the credible evidence submitted, this Court finds that the defendant shouldered its burden of producing a proper grounds for denying full payment of the no-fault benefits based upon the Workers' Compensation Fee Schedule. Great Wall Acupuncture, 16 Misc 3d at 23; Ava Acupuncture, P.C., 17 Misc 3d at 41; Ops Gen. Counsel NY Ins. Dept. 10-06-04. The plaintiff did not rebut this defense.

So it appears, at least in Judge Edwards' court, that an insurer has the burden of producing a witness to explain why acupuncture services were paid at chiropractic rates. Relying solely on the submission of the Workers' Compensation Fee Schedule might not be enough.