Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co., 2014 NY Slip Op 51233(U)(App. Term 2d Dept, 2014)
“While defendant sought summary judgment on the grounds that plaintiff’s assignor had failed to appear for independent medical examinations and that plaintiff was seeking to recover for treatment which the assignor swore he never received, defendant failed to establish that such defenses are not precluded.[FN1]”
“We note that if the treatment at issue had been rendered after April 1, 2013, pursuant to the revised Insurance Department Regulations, the defense that the services were not provided would not be subject to preclusion (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [g] [eff Apr. 1, 2013]). ”
The Court again cites Westchester Lincoln and gives a cf to Unitrin. This point is old but I felt like putting it out there anyway because this is my blog and you are choosing to read it. The Court appears to cite the new anti preclusion regulation as a “defense that..would not be subject to preclusion”. Three points here.
Point I: I was unsure if the Courts would hold that the new regulations could reverse preclusion, but I reread Presbyterian and “re-realized” that preclusion (according to the court) was supported through a dichotomy in the regulations. (Former 65.15(g)(3) v. 65.15(g)(5 and “The interpretive canon of inclusio unius, exclusio alterius “) So, Point I, i.e., can the DFS wipe out preclusion? Answer : yes.
Point II: The failure to provide services is being categorized as a defense. Certain defense attorneys have stated that the wording of the regulation suggests, e.g., billing in accordance with the fee schedule is part of a prima facie case based upon the textual layout of the amendment to the regulations. I never bought into that argument, and I am glad I did not. These preclusion carve outs are being classified as defenses.
Point III: I still think a medical provider should have to prove causation, proper billing and medical necessity. Furthermore, should the proposed attorney fee regulation pass, then the applicants cannot say that they are not being paid enough to prove the same elements that would need to be proven in a tort case.