Decided on December 15, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered April 15, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered April 15, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal. The defendant insurer failed to establish, prima facie, that it did not timely receive the plaintiff provider’s no-fault claim. In this regard, defendant relied on the affidavit of a claims representative employed in the Hicksville, New York office of non-party Farmers Insurance Exchange (“Exchange”), the entity which “administers claims” on defendant’s behalf. Although the affiant averred that there was no record of the underlying no-fault claim in his office’s paper and computer files, he professed no personal knowledge of the practice and procedures put in place by defendant in connection with the handling of no-fault claims sent to its Oklahoma City office, the designated mailing address for the submission of such claims (see Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613, 614 [2010]).

In any event, plaintiff, in opposition, raised a triable issue as to the mailing of the claim by producing a stamped mailing certificate tending to support its assertion that it timely mailed the no-fault claim to defendant at its designated Oklahoma City address (see LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

CV- 703200/13

For plaintiff, Avanguard Medical Group, PLLC(b)

Law Offices of Leon Kucherovsky, Esq.

Rachita Sharma Pate, Esq.

115 S. Corona Ave.

Valley Stream, NY 11580

(516) 881-7755

For defendant, State Farm Mutual Automobile Ins. Co.

Nicolini, Paradise, Ferretti & Sabella, PLLC

Francis J. Ammendolea, Esq.

114 Old Country Road

Mineola, New York 11501

(516) 741-6355

Defendant State Farm Mutual Automobile Insurance Company (“State Farm”), a No-Fault insurance provider, moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiff Avanguard Medical Group, PLLC(b) (“Avanguard”) is the assignee of Patria Martell, an individual covered under a policy of insurance issued by State Farm. The complaint seeks to recover payment of an assigned No-Fault insurance claim that was denied by State Farm on the basis of improper fee schedule billing. For the reasons stated herein, State Farm’s motion for summary judgment is granted.

Facts

Avanguard is a duly accredited office-based surgical facility (“OBS facility”) operated pursuant to New York State’s Public Health Law Section 230-d, entitled “Office-based surgery.” Avanguard alleges that it provided health services to Patria Martell for injuries she sustained during a September 16, 2012 automobile accident. Martell was covered under a policy with State Farm, which included payment of No-Fault benefits for her accident related healthcare. On [*2]January 16, 2013, Avanguard billed State Farm $2,550.00 for services it provided to Martell. The bill was based on a fee schedule that incorporated a “facility fee” in accordance with “The Products of Ambulatory Surgery” (“PAS”) classification. State Farm received the bill on January 29, 2013. On February 15, 2013, State Farm responded with an NF-10 “Denial of Claim” form, refusing to pay Avanguard’s bill in its entirety.

State Farm argues, inter alia, that it properly denied the claim because Avanguard, as an OBS facility, improperly billed pursuant to a PAS facility-fee-inclusive fee schedule authorized exclusively for use by facilities licensed under Article 28 of the New York State Public Health Law (“Art. 28”).^[FN1] Avanguard acknowledges that it is not licensed under Art. 28, but contends that: (1) its bill was permissible because an OBS facility should be entitled under Insurance Law Section 5108(a) to recover its facility fee and (2) the PAS fee schedule, which authorizes facility fee reimbursement for Art. 28 facilities, does not expressly exclude an OBS facility from billing on the PAS fee schedule. On April 1, 2013, Avanguard commenced this action, alleging State Farm wrongfully denied its insurance claim and demands judgment for $2,550.00 plus interest and attorneys’ fees.

Discussion

The issue to be resolved in this motion for summary judgment is whether an OBS facility may properly bill for reimbursement pursuant to the PAS facility-fee-inclusive fee schedule. This issue is addressed by way of statutory interpretation, pending legislation, persuasive case law, and statements published regarding this subject by the New York State Department of Health (“DOH”). For the reasons discussed below, this Court finds that Avanguard, as an OBS facility, is not authorized to bill pursuant to the PAS facility-fee-inclusive fee schedule and, therefore, State Farm properly denied Avanguard’s insurance claim on the basis of improper fee schedule billing.

A. Statutory Consideration

State Farm alleges that Avanguard’s insurance claim was properly denied because it was billed on a PAS fee schedule reserved by its terms exclusively for Art. 28 licensed facilities. See Ammendolea Aff. ¶ 18. New York State Insurance Law Section 5102(a)(1) provides for the reimbursement for “economic loss” relating to “all necessary expenditures incurred for medical and surgical services.” Upper East Side Surgical, PLLC v. State Farm Ins. Co., 34 Misc 3d 1219(A), at *4 (Dist. Ct., Nassau County 2012). Compensation, pursuant to Insurance Law Section 5108(a), is, however, “limited to the amount permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents.” Id.

Among the established fee schedules are billing codes for reimbursement in accordance with the PAS classification system, which includes facility fee reimbursements expressly authorized for facilities licensed under Art. 28. Avanguard, however, is not a “Hospital” or “Ambulatory Surgery Facility” licensed under Art. 28, but rather an OBS facility under Public Health Law Section 230-d, which offers no provision for an OBS facility to recover a facility fee. Further, there is no prepared or established fee schedule pursuant to Insurance Law Section 5108(a) upon which an OBS facility may claim reimbursement for its facility fees. Thus, Avanguard fails to demonstrate how State Farm was obligated to reimburse its OBS facility fees pursuant to the PAS fee schedule.

Both parties reference the same pending legislation introduced in the New York State Senate aimed at amending Public Health Law Section 230-d to include, inter alia, authorization for OBS facilities to “seek payment from a health plan for the use of such facility.” 2011 New York State Senate Bill S4597-B, ¶ 6. It is evident from the fact that the proposed legislation was never adopted into law that there is a necessity for a legislative enactment to require No-Fault insurers to reimburse OBS facility fees along the PAS fee schedule and that such reimbursement is not currently permitted. This conclusion can be based upon principles governing the construction and interpretation of statutes in New York: The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.

McKinney’s Cons. Laws of NY, Book 1, Statutes, § 240; see also UMG Recordings, Inc. v. Escape Media Grp., Inc., 107 AD3d 51 (1st Dep’t 2013). The maxim is particularly appropriate here where the legislature recently, in 2007, addressed authorization and accreditation requirements for OBS facilities by enacting Public Health Law Section 230-d, which has been amended in part as recently as 2012. The right to seek reimbursement for OBS facility fees could have been included in that legislation but it was omitted. Accordingly, the current regulations requiring No-Fault insurers to reimburse Art. 28 facilities along the PAS fee schedule that includes facility fees should not be extended to OBS facilities by way of judicial fiat, but rather by legislation.

B. Case Law Considerations

Despite the unresolved controversy over what rights and billing processes, if any, might apply to an OBS facility seeking to recover its facility fees, the rule emerging from judicial decisions cited by both parties in this case is that an OBS facility is “not authorized to be reimbursed for the medical/surgical services it provided to its assignor under the facility fee’ schedule in accordance with [the PAS] system because it is not an Art. 28 facility.” Upper East Side, 34 Misc 3d 1219(A), at *4; see also Gov’t Emps. Ins. Co. v. Avanguard Med. Grp. PLLC. (GEICO), 2012 NY Misc. LEXIS 2687, at *8 (Sup. Ct., Nassau County May 31, 2012).

In Upper East Side, supra, the court found that the plaintiff, an OBS facility, was “entitled to reimbursement under Insurance Law § 5102(a)(1) for the medical/surgical services it provided to its assignor,” but that it was not authorized to bill the insurer for its facility fees pursuant to the PAS classification system “because it is not an Art. 28 facility.” 34 Misc 3d 1219(A), at *4. In doing so, the Upper East Side Court speculated that other billing alternatives might be available for an OBS facility to claim its facility fees. For example, in the absence of a [*3]prescribed OBS facility fee schedule, Avanguard could have billed the “prevailing fee in the geographic location of the provider.” Id. at *4, citing 11 N.Y.C.R.R. 68.5(1)(b). Yet, despite this ruling, Avanguard submitted its insurance claims to State Farm based upon the PAS Art. 28 facility fee schedule.

Nor does the GEICO decision provide authority for an OBS facility to predicate its facility fee claim on the PAS fee schedule established for Art. 28 facilities. The court in GEICO denied the insurer’s request for an order to stay all proceedings and preliminarily enjoin the OBS facility “from commencing any new actions, arbitrations, or proceedings against [the insurer]” wherein the OBS facility seeks to recover No-Fault benefits for facility fees. GEICO, supra, at *12. GEICO relates to any facility fee reimbursement sought by an OBS facility and was not limited, as in this case, to the insurer’s denial of the OBS facility fee claim predicated on the PAS fee schedule. Given the broad injuctive relief sought by GEICO, the court found that a triable issue existed as to whether an OBS facility may ever seek a facility fee from an insurer—pursuant to any billing method.

C. Statements Published on the DOH’s Website

Finally, the parties both cite to statements published on the DOH’s website reflecting its position concerning facility fee reimbursements to OBS facilities:

Reimbursement

35. Does OBS accreditation qualify a private OBS practice to receive a “facility fee”? PHL § 230-d does not address or require reimbursement of an OBS facility fee. Accreditation status does not require a third party insurer to pay a facility fee. An OBS practice is not a health care facility under PHL Article 28 or as defined by PHL § 18. Neither Medicaid nor Medicare pays a facility fee to private physicians’ offices for office-based surgery. DOH does not establish fee schedules or billing guidelines for OBS.

Office-Based Surgery (OBS) Frequently Asked Questions (FAQ’s) for Practitioners, NY State Dep’t of Health, https://www.health.ny.gov/professionals/office-based_surgery/obs_faq.htm (last updated Mar. 2014). These statements support the conclusion that State Farm was under no obligation to reimburse Avanguard’s facility fee. Accordingly, summary judgment should be entered in favor of State Farm and Avanguard’s complaint should be dismissed.

Conclusion

Accordingly, it is hereby ordered that State Farm’s motion for summary judgment is granted, the complaint is dismissed, and the Clerk is directed to enter judgment accordingly. This constitutes the decision and order of this Court.

Dated: December 12, 2014

___________________________

Hon. James E. d’Auguste, J.C.C.

Footnotes

Footnote 1:. In the “Explanation of Review” accompanying the NF-10 “Denial of Claim” form, State Farm explains, inter alia, that Avanguard is not eligible to bill pursuant to a PAS fee schedule which includes a “facility fee” because it is not a licensed Art. 28 facility. Code “X3796” on the final page of the “Explanation of Review” is explained in part as follows:

Decided on December 11, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 4, 2012. The judgment, entered pursuant to an order of the same court granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff appeals from a judgment which was subsequently entered dismissing the complaint.

Contrary to plaintiff’s contentions on appeal, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff does not claim to have responded in any way to the EUO requests; therefore, plaintiff’s objections on appeal regarding those requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Plaintiff’s remaining contentions lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 11, 2014

Decided on December 11, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Leonard Scholnick, J.H.O.), entered August 8, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $791.35.

ORDERED that the judgment is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, among other things, that plaintiff had satisfied its prima facie burden. The sole issues before the Civil Court were whether defendant had timely sent letters scheduling examinations under oath and whether defendant had timely denied plaintiff’s claims. After counsel for the parties discussed the facts underlying the issues with the court, defense counsel did not call any witnesses. The court awarded judgment to plaintiff.

Inasmuch as the parties stipulated to plaintiff’s prima facie case and defendant failed to present any evidence, there is no basis to reverse the judgment (see Dilon Med. Supply Corp. v Travelers Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50737[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

[*1]

McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y. (Gregory Henig of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered September 26, 2013, which, upon an order of the same court entered September 10, 2013, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, is in favor of the plaintiff NYU-Hospital for Joint Diseases, as assignee of Martha G. Lopez, and against it in the principal sum of $19,095.62.

Ordered that the judgment is reversed, on the law, with costs, that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is denied, and the order entered September 10, 2013, is modified accordingly.

On October 18, 2012, Martha G. Lopez allegedly was injured in a motor vehicle accident. Approximately six months later, Lopez underwent surgery at the plaintiff NYU-Hospital for Joint Diseases (hereinafter the plaintiff). Lopez assigned her rights to no-fault benefits to the plaintiff. On October 18, 2012, the plaintiff mailed a copy of the NF-5 claim form to the defendant, Lopez’s automobile insurance carrier. The defendant received it on or about October 20, 2012, and thereafter issued an NF-10 denial of claim form dated November 14, 2012. The plaintiff, while not disputing that the defendant had issued a denial of claim within 30 days after its receipt of the NF-5 claim form, asserted in its motion for summary judgment that the NF-10 form was “defective” because it “contain[ed] the wrong amount of the bill and the wrong amount in dispute.” Upon an order entered September 10, 2013, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, the Supreme Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of $19,095.62.

Among the ways in which a no-fault insurer may comply with the “30 day rule” (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]) is by issuing a “timely and sufficient” NF-10 denial of claim form within 30 days after its receipt of an NF-5 claim form (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013]). Nonprejudicial mistakes or omissions in [*2]an otherwise timely and proper “NF-10” denial of claim form are not necessarily fatal (see Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855 [2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191-1192 [2011]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738 [2010]; cf. St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871 [2011]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Here, the papers submitted in support of the plaintiffs’ motion for summary judgment included a copy of the defendant’s NF-10 denial of claim form. Contrary to the plaintiff’s contention, the NF-10 form was timely and sufficient. Under the circumstances of this case, the plaintiffs did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 46). Accordingly, the Supreme Court should have denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, regardless of the sufficiency of the papers submitted by the defendant in opposition to the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Dillon, J.P., Miller, Maltese and Duffy, JJ., concur.

Decided on December 5, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 25, 2012. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.

Except under circumstances not presented here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 [2014]; Davis v Goodsell, 6 AD3d 382, 384 [2004]; Lama v Mohammad, 29 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 [1963]; Lama, 29 Misc 3d 68; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 [U]).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

[*1]

Civil Court of the City of New York, Bronx County, November 17, 2014

APPEARANCES OF COUNSEL

Bruce Somerstein & Associates, P.C., New York City, for defendant.

Cohen & Jaffe, LLP, Lake Success, for plaintiff.

In this action seeking reimbursement for assigned no-fault benefits, this court must answer the question of whether an insurer complies with the requirement of 11 NYCRR 68.6 to pay the “prevailing fee in the geographic location of the provider” when it reimburses the provider for health services rendered in another state in accordance with that state’s no-fault fee schedule.

Factual and Procedural Background

On February 23, 2012, Vincent Molino was operating an automobile when he was involved in a four-car accident caused by an intoxicated driver. Following the accident, Molino received treatment from plaintiff Surgicare Surgical for knee, lower back, and neck injuries. [*2]Surgicare performed arthroscopic surgery on Molino at a location in New Jersey approximately one year after the accident.

Plaintiff, as the assignee of Molino, submitted a claim on May 6, 2013 to defendant National Interstate Insurance Company in the amount of $10,800 for the surgery. Two days later, defendant sent a verification form to plaintiff requesting additional information. Plaintiff replied to the verification form by way of a “medical necessity” letter dated May 31, 2013. Defendant then issued payment in the amount of $5,996.67, but denied the remaining portion of plaintiff’s claim. In a standard “Denial of Claim” form, dated June 13, 2013, defendant indicated that plaintiff’s fees were “not in accordance with fee schedules” and were “reduced in accordance with the New Jersey No-Fault Ambulatory Surgery Fee Schedule guidelines.” Plaintiff commenced this action to recover the remainder of its claim. Despite defendant’s payment of $5,996.67, plaintiff alleges in its complaint that “there [was] no payment of the subject bill” (complaint ¶ 15).

Defendant now moves to dismiss. Plaintiff opposes the motion and cross-moves for summary judgment on its complaint.

Arguments In support of its motion to dismiss, defendant argues that, under 11 NYCRR 68.6, it was required to pay the “prevailing fee in the geographic location of the provider.” Since health care services were rendered in New Jersey, a state which has promulgated a fee schedule under its no-fault laws, defendant{**46 Misc 3d at 739} contends that the reimbursement provided for in New Jersey’s fee schedule constitutes the “prevailing fee” under New York’s section 68.6. Defendant concludes, therefore, that it properly denied so much of plaintiff’s claim that exceeded the maximum charge under New Jersey’s fee schedule for the services in question. In support of its position, defendant annexes to its reply papers an affidavit from a professional medical coder, Lisa Acuna, who states that defendant properly calculated the payment amount for plaintiff’s claim under New Jersey’s fee schedule. Lastly, defendant argues that dismissal is warranted because plaintiff is estopped from seeking the remainder of its claim based on the doctrine of accord and satisfaction.

In opposition, plaintiff asks preliminarily that this court deem defendant’s motion to dismiss as one for summary judgment pursuant to CPLR 3212 (c). As to the merits, plaintiff does not dispute that New Jersey’s fee schedule, if applicable, would bar plaintiff’s claim. However, plaintiff contends that New Jersey’s fee schedule does not apply because the term “prevailing fee” in the regulation is not synonymous with “fee schedule.” Plaintiff argues that in contrast to New Jersey’s version of section 68.6, which expressly limits out-of-state reimbursements to those rates set forth in the host state’s fee schedule, New York’s rule for reimbursement of out-of-state services does not refer to a local “fee schedule.” By omitting specific reference to a fee schedule, plaintiff argues, New York’s Legislature refused to limit payments for out-of-state services to the amounts set forth in another state’s fee schedule. Plaintiff further contends that this court would exceed its authority by interpreting the plain language of section 68.6 to require that an insurer pay anything other than the “prevailing fee of the geographic location of the provider.”

Despite defendant’s submission of the Acuna affidavit in its reply papers, plaintiff argues that defendant’s failure to include an affidavit from a competent medical coder in its initial moving papers warrants denial of the instant motion. Additionally, plaintiff contends that defendant failed to timely issue its denial and neglected to preserve its fee schedule defense when issuing the standard denial form. Lastly, plaintiff argues that the “partial” payment of $5,996.67 on plaintiff’s $10,800 claim effectively estops defendant from denying any unpaid portion of the claim.

In support of its cross motion for summary judgment, plaintiff argues that it has established timely mailing of its claim and{**46 Misc 3d at 740} that payment on the claim is overdue. Defendant opposes the cross motion.

Discussion

On a motion to dismiss pursuant to CPLR 3211, the court affords the pleadings a liberal construction, giving the non-moving party the benefit of every favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not presumed to be true (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]). In such a case, “[a] CPLR 3211 dismissal may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005] [internal quotation marks omitted]).

Two procedural issues arise in the context of defendant’s motion to dismiss. First, plaintiff’s complaint alleges that “there [was] no payment of the subject bill” (complaint ¶ 15), however, this statement is not only refuted by defendant’s evidence of a $5,996.67 payment to plaintiff, but also by plaintiff’s admission that it received this payment from defendant. Plaintiff’s allegation of no payment is flatly contradicted by the evidence and, thus, clearly erroneous. As such, plaintiff can only seek the unpaid portion on its $10,800 claim.

[1] Secondly, to the extent that plaintiff claims defendant neglected to annex a qualifying affidavit from a medical coder to its initial moving papers, defendant later cured this defect in its reply papers by way of the affidavit from Lisa Acuna. Acuna, who is a certified medical coder, avers that defendant paid the exact amount permitted under New Jersey’s fee schedule for the health services provided by plaintiff. Although plaintiff could have responded to the affidavit in its cross motion, it failed to do so. Thus, plaintiff had—but waived—an opportunity to dispute those assertions (see Held v Kaufman, 91 NY2d 425, 430 [1998] [defenses raised for the first time in reply papers on a motion to dismiss were properly considered without danger of prejudice where plaintiff was afforded opportunity to respond]). In sum, while the parties disagree about whether New Jersey’s fee schedule applies under these circumstances, neither party{**46 Misc 3d at 741} disputes that, if New Jersey’s fee schedule does apply, defendant complied with section 68.6.

[2] With respect to plaintiff’s request to convert this motion to one for summary judgment, this court declines to deem defendant’s instant motion as one for summary judgment pursuant to CPLR 3211 (c). Although resolution of a purely legal question is appropriate on a motion for summary judgment (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]), the court may also decide a motion to dismiss pursuant to rule 3211 when it is premised entirely on an issue of statutory interpretation (see McKechnie v Ortiz, 132 AD2d 472 [1st Dept 1987]) or when the sufficiency of the pleadings poses a question of law (see e.g. Rosner v Paley, 65 NY2d 736, 738 [1985]). Since no issues of fact need to be determined in order to resolve the instant motion, this court is left to answer a question of law, that is, whether defendant complied with section 68.6 when it limited payment for the health services performed by plaintiff to the amount allowable under New Jersey’s fee schedule. Thus, some interpretation of the regulation at issue is called for.

In a claim brought under New York’s Comprehensive Motor Vehicle Insurance Reparations Act, otherwise referred to as the “No-Fault Law” (see Insurance Law § 5101 et seq.), a provider’s reimbursement for eligible health services performed in New York “shall not exceed the charges permissible under [the fee schedule established by the New York State Workers’ Compensation Board]” (see Insurance Law § 5108 [a]). Under subdivision (c), “[n]o provider of health services . . . may demand or request any payment in addition to the charges authorized [under the fee schedule]” (Insurance Law § 5108 [c]).

Responsibility for administering the Insurance Law rests with the Superintendent of Insurance who has “broad power to interpret, clarify, and implement the legislative policy” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2d Dept 2012] [internal quotation marks omitted]; see Insurance Law § 301). In the no-fault context, section 5108 (b) of the Insurance Law empowers the superintendent to “promulgate rules and regulations implementing and coordinating the provisions of [the No-Fault Law].” These rules, found in part 68 of the New York Insurance Department Regulations, “govern[ ] the charges for professional health services” (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23, 25-26 [App Term, 2d Dept 2007]).

Within this regulatory framework, the Insurance Department has promulgated section 68.6 which provides that “[i]f a professional{**46 Misc 3d at 742} health service . . . is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (11 NYCRR 68.6).

The question of exactly what constitutes the “prevailing fee” in this context appears to be one of first impression since neither of the parties nor this court have located authority interpreting section 68.6 in relation to a state which utilizes a no-fault fee schedule. However, the Superintendent of Insurance has issued a formal opinion interpreting section 68.6 in the context of a foreign jurisdiction that apparently did not have a fee schedule. The opinion, which involved a question of licensure for physical therapists providing health services in Guatemala, specifically cites the section at issue and states:

“[*5]As to the amount of the reimbursement, where the health services are provided outside of New York State . . . [t]he dollar amount of the reimbursement for physical therapy services (or other professional health services) performed on an eligible injured person under a New York No-Fault insurance policy in Guatemala is determined by the permissible cost for such services in Guatemala” (Ops Gen Counsel NY Ins Dept No. 03-04-03 [Apr. 2003], 2003 WL 24312368 [US], *2 [emphasis added]).

The Superintendent’s use of the word “permissible” is significant as it strongly suggests that reimbursement for health services performed in a foreign jurisdiction may be regulated by that jurisdiction’s laws, including a governing no-fault regime. Indeed, the principle of limiting reimbursements to “permissible” amounts is mirrored in the section of the Insurance Law that codifies the No-Fault Law’s salient feature of explicitly restricting reimbursement for health services performed in New York to the amounts allowable by this State’s fee schedule (see Insurance Law § 5108 [a]); therefore, it is only logical that the same principle should apply to foreign jurisdictions. Consistent with the use of “permissible” in the core provision of the No-Fault Law, the Superintendent has reasonably interpreted the language of section 68.6 to require that an insurer pay for any health service performed in a locale outside of New York at the permissible cost for that location. As such, the Superintendent’s interpretation of its own regulations is entitled to deference (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009] [“the (Insurance) Superintendent’s ‘interpretation (of its own regulations) if not irrational or unreasonable,{**46 Misc 3d at 743} will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision’ ”]).

In addition, the language of the preceding subsection within section 68.6 also utilizes the term “prevailing fee.” That subsection, section 68.5 (b), states that

“If a professional health service is performed which is [eligible for no-fault benefits], but is not set forth in fee schedules adopted or established by the superintendent, and: . . .

“(b) if 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 charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b] [emphasis added]).

Section 68.5 (b) requires that the insurer pay the “prevailing fee in the geographic location of the provider” only if this State’s fee schedule has not established a permissible charge for the health service or has not adopted the type of provider who seeks reimbursement for no-fault benefits. In other words, for any claimed health service, the insurer must look first to the fee schedule in determining the proper reimbursement amount. It is only after the insurer concludes that the fee schedule does not apply that it may look to the “prevailing fee” in the provider’s location. The provider’s likelihood of receiving the “prevailing fee” is further conditioned upon the insurer’s prerogative to re-categorize the particular health service to fit under existing fee schedules. By looking first to the application of a fee schedule, section 68.5 employs a logical approach in which [*6]the insurer pays a “prevailing fee,” as plaintiff defines that term, only after all possible fee schedule applications have been exhausted.

Both the Insurance Department’s opinion and section 68.5 (b)’s formula for applying the “prevailing fee” comport with the policy goals underlying the legislature’s adoption of a fee schedule. The purpose of a fee schedule is “to significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d {**46 Misc 3d at 744}113, 118 [2d Dept 1989] [internal quotation marks omitted], citing Governor’s Program Bill, 1977 McKinney’s Session Laws of NY at 2449; Governor’s Mem in Support of Assembly Bill 7781-A). Moreover, per Insurance Department regulation, the express purpose of the fee schedule was to “contain . . . the cost of no-fault insurance” (see 11 NYCRR 68.0). Like New York, New Jersey passed similar no-fault legislation as a “cost-containment initiative” (see Casinelli v Manglapus, 181 NJ 354, 360, 858 A2d 1113, 1116 [2004]). In furtherance of policy goals akin to New York’s, New Jersey’s Department of Insurance has promulgated a medical fee schedule (see 11 NJ Admin Code 11:3-2.9). Thus, the “permissible” charge for health services rendered in New Jersey are limited by the maximum amounts permitted under New Jersey’s fee schedule.

[3] Based on the foregoing, this court holds that, when services are rendered outside of New York but in a jurisdiction which utilizes a fee schedule, the insurer complies with section 68.6 by paying the “permissible” charge for that particular medical service, that is, the amount permitted by that jurisdiction’s fee schedule. There being no dispute that defendant issued payment on plaintiff’s claim in accordance with New Jersey’s fee schedule, plaintiff is not entitled to more. Since plaintiff’s action is based entirely on its claim of entitlement to reimbursement in excess of New Jersey’s “permissible” charge, the relief sought in the complaint must be denied and the action dismissed.

Contrary to plaintiff’s position, this court neither exceeds its “jurisdiction” nor subverts the plain language of section 68.6 by holding that an insurer complies with section 68.6 when the reimbursement amount is consistent with another state’s fee schedule. Rather, this court merely adopts a reading of section 68.6 that comports with both the Insurance Department’s interpretation of its own regulation, as well as the policy goals underlying New York’s (not to mention, New Jersey’s) No-Fault Law.

Aside from the core objective of “provid[ing] a tightly timed process of claim, disputation and payment” (see LMK Psychological Servs., P.C., 12 NY3d at 222), another important goal of the no-fault laws was also to “reduce the burden on the courts” (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [internal quotation marks omitted]). If this court were to accept plaintiff’s interpretation of section 68.6, rather than “reduce the burden on the courts,” similar {**46 Misc 3d at 745}no-fault disputes would routinely call upon trial courts to conduct evidentiary hearings on local billing practices to determine the “prevailing fee” in a neighboring location notwithstanding the fact that such a jurisdiction has already established its own legally permissible fee. Such a situation would undoubtedly subvert the No-Fault Law’s core objective of creating a speedy process of claim, dispute resolution, and, ultimately, payment.

Equally important, the goals of consistency and fairness are undermined when injured parties, or their provider-assignees, can be reimbursed for the same health services at different rates [*7]from those permitted under either New York’s or even another state’s fee schedule simply because the services were rendered outside of New York but are to be paid in this State. Plaintiff’s proposed reimbursement scheme would only frustrate the purposes of both jurisdictions’ no-fault laws because providers would be incentivized to treat New York patients in other jurisdictions hoping to receive more for performing the same health service outside of New York’s borders.

[4] Turning to plaintiff’s remaining contentions, this court finds no merit in plaintiff’s argument that defendant’s denial of claim was untimely. An explicit schedule for claim submission, response, and decision is provided in Insurance Department regulations (see 11 NYCRR 65-1.1, 65-2.4 [c]; 65-3.5 [a], [b]; 65-3.8 [c]). Although it is well-established that “[an insurer] that fails to deny a claim within the 30-day period is generally precluded from asserting a defense against payment of the claim” (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]), if the insurer seeks additional verification, the 30-day window is tolled until the insurer receives the requested information (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Here, plaintiff made its claim on May 6, 2013, but defendant sent back a verification form two days later. The 30-day window was therefore tolled until defendant received the verification information it requested. Plaintiff admittedly submitted this information by way of a medical necessity letter on May 31, 2013. Given that defendant issued the denial of claim form on June 13, 2013, which was well within 30 days of plaintiff’s medical necessity letter, defendant’s denial was timely.

[5] Plaintiff further contends that, even assuming timeliness of its denial, defendant nevertheless failed to preserve its billing practices defense. However, an insurer preserves such a defense{**46 Misc 3d at 746} merely by checking the “fees . . . not in accordance with the fee schedule” box on the standard denial form (Megacure Acupuncture, P.C. v Lancer Ins. Co., 41 Misc 3d 139[A], 2013 NY Slip Op 51994[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Not only did defendant check the appropriate box in its denial of plaintiff’s claim, but it also specified the basis for the denial, namely, that plaintiff’s reimbursement was “reduced in accordance with the New Jersey No-Fault Ambulatory Surgery Fee Schedule guidelines.”

Lastly, plaintiff’s argument that defendant’s partial payment on the claim somehow indicates that defendant was satisfied with the entirety of the claim is unavailing (see 11 NYCRR 65-3.8 [d] [“Where an insurer denies part of a claim, it shall pay benefits for the undisputed elements of the claim. Such payments shall be made without prejudice to either party” (emphasis added)]).

This court has considered the remainder of plaintiff’s contentions and finds them to be without merit.

Accordingly, it is ordered that defendant’s motion is granted and the complaint is dismissed; and it is ordered that plaintiff’s cross motion is denied in its entirety.