Fee schedule defense - Appellate Division gives due deference to the DOI

Forrest Chen Acupuncture Services, P.C. v. GEICO Ins. Co.
2008 N.Y. Slip Op. 07211 (2d Dept. 2008)

"Furthermore, the defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by submitting evidentiary proof that no fee schedule for the reimbursement of acupuncture treatments existed in 2001, and that it properly limited payment to “charges permissible for similar procedures under schedules already adopted” (11 NYCRR 68.5[b]; see Insurance Law § 5108; Ops Gen Counsel N.Y. Ins Dept No. 04-10-03 [October 2004] ). In opposition to the cross motion, the plaintiff failed to raise an issue of fact as to whether reimbursement for its acupuncture services was properly limited."

Comment: I would opine that "competent evidence" to support a prima facie fee schedule defense would include (besides a timely denial) the following: (a) Pertinent portion of the fee schedule including conversion factor and CPT Codes with relative values; (b) DOI letter indicating it is proper; and (c) Affidavit from claims examiner indicating compliance with the foregoing.