March 1, 2005

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-new-york-cent-mut-fire-ins-co-2005-nyslipop-51111u/

Court: Appellate Term, Second Department
Decided: March 1, 2005
Citation: 2005 NY Slip Op 51111(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 3 later decisions (see Cited by)
Issues: Assignments and standing

Cite as

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 51111(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2005)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

A billing provider cannot recover assigned no-fault benefits for services performed by an independent contractor rather than by it or its employees. The claim forms identified a separately licensed physician as the treating provider and independent contractor. Under former 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), direct payment requires an assignment from the applicant to the provider of services, and the regulations do not authorize provider-to-provider assignments. The Appellate Term, Second Department, modified the order, insofar as appealed from by the medical provider, by searching the record and awarding the insurer summary judgment dismissing that provider's complaint; as modified, the order was affirmed. The chiropractic provider's appeal was dismissed after its claims were withdrawn and no issue remained.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U))

[*1]

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co.

2005 NYSlipOp 51111(U)

Decided on March 1, 2005

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: March 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT :PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1792 K C

A.B. Medical Services PLLC ROYALTON CHIROPRACTIC P.C. a/a/o Svetlana Makaritcheva and Boris Bobyr, Appellants,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (S. Krauss, J.), entered on October 29, 2003, as denied the motion for summary judgment by plaintiff A.B. Medical Services PLLC, seeking the sum of $8,182.88.

Order, insofar as appealed from by A.B. Medical Services PLLC, unanimously modified by providing that, upon searching the record, summary judgment is awarded
to defendant dismissing the complaint as to plaintiff A.B. Medical Services PLLC; as so modified, affirmed without costs.

Appeal by plaintiff Royalton Chiropractic P.C. unanimously dismissed.

Plaintiffs A.B. Medical Services PLLC (A.B. Medical) and Royalton Chiropractic P.C. commenced the instant action seeking to recover first-party no-fault benefits for medical services rendered to their assignors in the sum of $10,394.42. In their brief on appeal, plaintiffs have withdrawn the claims of Royalton Chiropractic P.C. and have limited the appeal to the claims of A.B. Medical for the sum of $8,182.88.

In support of its motion for summary judgment, A.B. Medical annexed the NF-3 claim forms which identified it as the “provider.” The item calling for information where the “treating provider is different than [the] billing provider,” indicated that the licensed “treating provider” was Desh D. Sachdev, M.D., and that the “business relation” was that of “independent contractor.” In opposition to the motion, defendant argued that it properly denied A.B. Medical’s claims on the ground that the medical provider of services was an independent contractor, and that A.B. Medical was not entitled to recover no-fault benefits as a licensed billing provider of those services.

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits . . . directly to the applicant or . . . upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to seek [*2]recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

In the instant action, it is uncontroverted that both A.B. Medical and Dr. Sachdev are licensed providers of health care services, and as such, both may be independently entitled to recover no-fault benefits for medical services they rendered. A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer.

Our decision is consistent with the Insurance Department’s interpretation of the insurance regulations (see informal opinions dated February 21, 2001, February 5, 2002, March 11, 2002, and October 21, 2003; see also Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444 [Civ Ct, Queens County 2004]) which is entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]).

Accordingly, the order of the court is hereby modified by providing that, upon searching the record, summary judgment is awarded defendant dismissing the complaint as to plaintiff A.B. Medical.

Inasmuch as no issue is raised by the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: March 01, 2005

Cited in this decision

Rockaway Blvd. Med. P.C. v Progressive Ins. (2004 NY Slip Op 24184)A billing provider's claim form is incomplete if it omits the relationship with a different treating provider.

Cited by

A label shows how the later decision treated this one.

Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278) Contrasted (cf., but see)A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case.
Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51191(U)) FollowedA billing provider cannot recover assigned no-fault benefits for services rendered by an independent contractor rather than its employees.
Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U)) FollowedA billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
State Farm Mut. Auto. Ins. Co. v Farescal (2009 NY Slip Op 50937(U)) FollowedA medical provider cannot recover assigned no-fault benefits for services rendered by independent contractors rather than by it or its employees.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902)An insurer's independent contractor defense is subject to preclusion if not asserted in a timely denial of claim.
Health & Endurance Med., P.C. v Liberty Mut. Ins. Co. (2008 NY Slip Op 50864(U))A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
V.S. Med. Servs. P.C. v Allstate Ins. Co. (2007 NY Slip Op 50016(U))A billing provider cannot recover assigned no-fault benefits for services rendered by independent contractors.
A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51044(U))The provider's W-2 forms did not establish employment when services were rendered by professionals listed as independent contractors.

Similar decisions

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 25277)A billing provider cannot recover assigned no-fault benefits directly for services rendered by an independent contractor.
A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt.
A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50902(U))The providers' billing affidavit failed to lay a foundation for their claim forms because it did not identify which provider the affiant represented.
A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))The insurer's evidence established a founded belief that the assignors' injuries did not arise from an insured incident.
A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co. (2003 NY Slip Op 51393(U))An assignor's EUO nonappearance does not support denial under the no-fault regulation governing services rendered in 2001.