ANCIENT MODERN ACUPUNCTURE v. MVAIC (2020)

Civil Court, City of New York.

ANCIENT & MODERN ACUPUNCTURE, P.C. a/a/o Cassandra Price, Plaintiff v. MVAIC, Defendant

CV 701498/17/NY

Decided: January 07, 2020

GARY TSIRELMAN, P.C., Attorneys for Plaintiff, By: Jung F. Pryjma. Esq., 129 Livingston Street - Second & Third Flrs, Brooklyn, New York 11201, 718.438.1200 x 169 MARSHALL & MARSHALL, Attorneys for Defendant, By: Alexis Levine, Esq., 30 Jericho Executive Plaza - 100W, Jericho, New York 11753, 516.997.6000

BACKGROUND

Plaintiff commenced this action to recover assigned first-party no fault benefits, pursuant to a summons and complaint dated July 12, 2017, seeking entry of judgment in the amount of $1509.28, plus costs and attorneys' fees.

Defendant appeared by counsel and filed an answer on September 28, 2017, asserting eight affirmative defenses, including that the amounts sought exceed the amounts permitted by statute, and that the medical services were not necessary.

A notice of trial was filed on January 31, 2018.

On March 6, 2019, defendant moved for summary judgment and related relief. The motion was granted in part by the court (Samuels, J), pursuant to a decision and order May 8, 2019 which held “․ certain codes were paid properly, but defendant failed to establish proof of 8 units / concuurent care for the rest. Thus, the case shall proceed to trial for $792.86 with the sole issue fee schedule.”

On December 18, 2019, the parties appeared before this Court, stipulated to the facts on the record, and asked that this court issue a decision. Essentially the parties agreed that the sole issue before the court is whether defendant's reductions based on the 8 Unit Rule of the Chiropractic Workers' Compensation Fee schedule were properly applied to the cupping services performed by a licensed acupuncturist.

Ground Rule 3, also known as the 8-Unit Rule is found within the Physical Medicine section of the Chiropractic Fee Schedule, entitled “Multiple Physical Medicine Procedures and Modalities” and provides that when multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to eight units or the amount billed, whichever is less.

The parties stipulated that the amount at issue for the fifteen (15) remaining bills is $77.10, which is the total amount of the differences between the maximum chiropractic rate allowable ($16.70) and the rate actually paid by MVIAC ($11.56) after applying Ground Rule 3, the 8-unit maximum per day rule.

While carriers are permitted to refer to the chiropractic fee schedule for the rates of reimbursement for licensed acupuncturists (Great Wall Acupuncture v. GEICO General Insurance Company 16 Misc 3d 23), the Appellate Division, First Department has held that " ․ such holdings do not foreclose the use of the physician fee schedule in all cases (Global Liberty Insurance Co. Of New York v. North Shore Family Chiropractic, PC, 2019 NY Slip Op. 08942).

There is no authority or case law that authorizes carriers to apply the ground rules of the Chiropractic Fee Schedule to licensed acupuncturists.

The purpose of the Ground Rule would appear to be to limit the number of the same type of procedures that are reimbursable to a patient on the same day. This rationale would not therefore limit the patient's rights to receive acupuncture treatment on the same day the patient receives chiropractic treatment. Acupuncture has been recognized as a separate and distinct modality from chiropractic treatment (Universal Acupuncture Pain Services, P.C. v. Lumbermens Mutual Casualty Co. 195 Misc 2d 352).

The authority allowing for the chiropractic fee schedule to be used exists because the superintendent has not adopted a fee schedule applicable to licensed acupuncturists, not because the services performed by the professional is the same or overlap.

Based on the forgoing the court finds that plaintiff is entitled to a judgment in the amount of $77.10 plus costs and interest from July 13, 2017.

This constitutes the decision and order of the court.

Sabrina B. Kraus, J.