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The Rogak Report: 26 Feb 2010 ** No Fault - Acupuncture - Licensing **

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  • Lawrence
    PROVIDER MUST BE OWNED BY LICENSED ACUPUNCTURIST TO COLLECT NO-FAULT BENEFITS FOR ACUPUNCTURE Quality Med. Care, P.C. a/a/o Michael DePietro v New York Cent.
    Message 1 of 1 , Feb 26, 2010
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      PROVIDER MUST BE OWNED BY LICENSED ACUPUNCTURIST TO COLLECT NO-FAULT BENEFITS FOR ACUPUNCTURE

      Quality Med. Care, P.C. a/a/o Michael DePietro v New York Cent. Mut. Fire Ins. Co.
      2010 NY Slip Op 50262(U)
      Decided on February 19, 2010
      Appellate Term, Second Department
      Edited by Lawrence N. Rogak


      When a medical provider employs a licensed acupuncturist, must that provider be owned by someone licensed to do acupuncture in order to collect no-fault benefits?  It does, says the Appellate Term, reversing a Civil Court, Queens judge.

      "In this action to recover assigned first-party no-fault benefits, the parties stipulated at trial that plaintiff is a lawfully constituted professional service corporation wholly owned by a licensed physician, that the physician was not certified to perform acupuncture at the time the acupuncture services at issue were provided, and that the services were provided by a licensed acupuncturist employed by plaintiff. The parties also stipulated that the sole issue for the Civil Court's determination was whether plaintiff had standing to commence this action to recover benefits under the no-fault provisions of the insurance policy. In its decision, the Civil Court ruled that a lawfully formed medical professional service corporation owned by a licensed physician may receive reimbursement of no-fault benefits for acupuncture services rendered by an employee who is a licensed acupuncturist notwithstanding that the physician was not certified to perform acupuncture. Defendant appeals from that decision."

      "Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12) states that a provider of health care services is not eligible for reimbursement [of no-fault benefits] if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such services."

      "Only someone properly licensed or certified may practice acupuncture in New York State (Education Law § 8212; Great Wall Acupuncture v GEICO Ins. Co., Misc 3d , 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90, 92 [App Term, 2d & 11th Jud Dists 2006]). Physicians are not authorized to practice acupuncture by virtue of their medical licenses; rather, they must satisfy the certification requirements if they are to practice acupuncture (Education Law §§ 8212, 8216 [3]; Education Department Regulations [8 NYCRR] § 60.9). Thus, the certificate of incorporation for a professional service corporation that seeks to obtain reimbursement of no-fault benefits for acupuncture services rendered 'shall have attached thereto a certificate or certificates issued by the [Education Department] certifying that each of the proposed shareholders, directors and officers is authorized by law to practice a profession which the corporation is being organized to practice and, if applicable, that one or more of such individuals is authorized to practice [acupuncture]' (Business Corporation Law § 1503 [b]; see e.g. Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 60 [App Term, 2d & 11th Jud Dists 2006]; Lexington Acupuncture, P.C., 12 Misc 3d at 92)."

      "Where, as here, a professional service corporation is owned solely by a doctor who is not a certified acupuncturist at the time the acupuncture services at issue were rendered, such professional service corporation is not entitled to reimbursement of assigned no-fault benefits for such services notwithstanding the fact that the acupuncture services were rendered by a licensed acupuncturist employed by the corporation and that the corporation's owner subsequently became a certified acupuncturist (Business Corporation Law § 1503 [b]; § 1507; Insurance Department Regulations [11 NYCRR] § 65-3.12 [a]; cf. Healthmakers Med. Group, P.C. v Travelers Indem. Co., 13 Misc 3d 136[A], 2006 NY Slip Op 52118[U] [App Term, 1st Dept 2006]). Accordingly, the judgment is reversed and the complaint dismissed."

      Larry Rogak

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