February 8, 2005
563 Grand Med., P.C. v Allstate Ins. Co. (2005 NY Slip Op 50127(U))
https://www.beynensonlaw.com/case-law/563-grand-med-p-c-v-allstate-ins-co-2005-ny-slip-op-50127u/
- Judge
- Nadelson, J.
- Decided
- February 8, 2005
- Citation
- 2005 NY Slip Op 50127(U)
- Posture
- Article 75 petition
- Outcome
- Insurer prevailed
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.
Reported in New York Official Reports at 563 Grand Med., P.C. v Allstate Ins. Co. (2005 NY Slip Op 50127(U))
| 563 Grand Med., P.C. v Allstate Ins. Co. |
| 2005 NY Slip Op 50127(U) |
| Decided on February 8, 2005 |
| Civil Court, Kings County |
| Nadelson, J. |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Court, Kings County
563 Grand Medical, P.C., a/a/o Miriam Polonia, Petitioner,
against Allstate Insurance Company, Respondent. |
91337/04
Eileen N. Nadelson, J.
Petitioner, a medical provider, brought this action to vacate a Master Arbitration award rendered in favor of Respondent insurer. The initial arbitration award was affirmed by the Master, both arbitrators concluding that Petitioner lacked standing to institute this claim for first party benefits under New York’s No-Fault Insurance Law.
At the initial hearing, the arbitrator sua sponte raised the issue of Petitioner’s standing to receive no-fault benefits. Petitioner, at the time in question, was a professional corporation authorized under New York law. The sole owner of the corporation was a medical doctor, and the services for which this action was commenced were acupuncture treatments performed by a licensed acupuncturist under the auspices of the professional corporation. The physician who owned the corporation was neither licensed nor certified to perform acupuncture, and no evidenced was adduced to indicate whether the acupuncturist was an employee of the corporation or an independent contractor.
11 NYCRR sec. 63-3.16(a)(12) states that:
A provider of health care services is not eligible for reimbursement under
section 5102(a)(1) of the Insurance Law if the provider fails to meet any [*2]
applicable New York State or local licensing requirement necessary to
perform such services in New York or meet any applicable licensing
requirement necessary to perform such service in any other state in which
such service is performed.
Under New York law, an acupuncturist may only be employed by or contracted to provide licensed services to the public through certain entities, including a licensed or certified acupuncturist or partnership of licensed (or certified) acupuncturists; a professional corporation authorized to practice acupuncture; a limited liability company or partnership lawfully authorized to practice acupuncture; a hospital, nursing home, clinic or HMO. See Advisory Letter from the State Education Department, October 8, 2002.
In order to provide acupuncture services, a professional corporation must be owned, organized and operated by persons who are licensed or certified to practice acupuncture. See generally, New York Business Corporation Law sec. 1503. In the case at bar, although Petitioner’s owner was a licensed physician, he was neither licensed nor certified to practice acupuncture.
Cases in New York have held that proper licensing of a medical provider is a condition precedent to payment of benefits under the No-Fault Law. Valley Physical Medicine and Rehabilitation, P.C. v. New York Central Mutual Insurance Comany, 193 Misc 2d 675, 753 N.Y.S. 2d 289 (2d Dept. 2002). Consequently, if Petitioner was not licensed to perform acupuncture, it may not recover first party No Fault benefits for such services.
In affirming the initial arbitration award, the Master stated that the award was based on the fact that Petitioner, although a licensed physician, presented no proof that such license encompassed acupuncture services. Such evidence was also not presented in the current petition. Therefore, because Petitioner was not licensed nor certified to perform acupuncture, it cannot bill for such services. 11 NYCRR sec. 65-3.16(a)(12).
In its papers, Petitioner focused on the circumstances that permit a court to vacate an arbitration award and specified the minium requirements that a health care provider must supply in order to prevail on a claim for No-Fault benefits. Petitioner completely failed to address the standing issue upon which the arbitration award was based. However, a health care provider’s standing based on licensing requirements is always an appropriate field of inquiry. See generally CKC Chiropractic v. Republic Western Insurance Co., 5 Misc 3d 492, 784 N.Y.S. 2d 350 (Kings County 2004).
Based on the foregoing, the court affirms the award of the arbitrator and Master Arbitrator. The court finds it unnecessary, based on this decision, to address the grounds that may be used to vacate such awards.
This constitutes the decision and order of the court.
[*3]Dated: February 8, 2005
__________________________
EILEEN N. NADELSON, J.C.C.
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On the merits, when may a no-fault insurer withhold payment because unlicensed persons own or control the provider (Mallela)?
This decision: Provider held ineligible: unlicensed ownership/control or improper formation proved
Held a professional corporation whose sole owner was a physician not licensed or certified in acupuncture could not bill for acupuncture, because such a corporation must be owned by persons licensed to practice acupuncture.
Of the 61 decisions on this question in the Second Department courts and the Court of Appeals, 20 (this one included) are in the same category.
May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?
This decision: Insurer may raise or investigate the Mallela defense here (rules on the question, but another ground decided the case)
Upheld arbitrators who raised on their own the provider's ineligibility as a professional corporation owned by a physician not licensed in acupuncture, holding that a provider's standing under licensing rules is always an appropriate field of inquiry.
Of the 134 decisions on this question in the Second Department courts and the Court of Appeals, 111 (this one included) are in the same category.
Cited in this decision
- CKC Chiropractic v Republic W. Ins. Co. (2004 NY Slip Op 24351)A provider may recover for services rendered while registered and licensed even if it becomes unregistered before seeking payment.
Similar decisions
- First Help Acupuncture, P.C. v Hudson Ins. Co. (2005 NY Slip Op 50565(U))A provider must establish medical necessity in its prima facie case when the insurer timely denies the claim.
- Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50262(U))A medical corporation solely owned by a physician uncertified in acupuncture cannot recover no-fault benefits for an employee's acupuncture services.
- Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2018 NY Slip Op 08641)The master arbitrator's confirmation of an award denying benefits for exhausted policy limits had evidentiary support and a rational basis.
- 101 Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51118(U))The provider's petition to vacate a master arbitration award denying no-fault benefits was denied, and the insurer's cross petition was granted.
- R.J. Professional Acupuncturist, P.C. v NY Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52729(U))The master arbitrator's affirmance of denied acupuncture claims had a rational basis where fee-reduction law was unsettled.