Judge Terence P. Murphy
State Farm moved for summary judgment dismissing provider Upper East Side Surgical’s (UESS) complaint for no-fault benefits. It denied the claim, arguing the fees claimed were not in compliance with the Workers’ Compensation Board schedule of medical fees as UESS was not listed as a Public Health Law Article 28 facility. The court found while UESS acknowledged it was not listed with the board as an ambulatory surgery center, it alleged there was no requirement that Art. 28 licensure was a prerequisite to no-fault claims reimbursement. UESS noted the Office Based Surgery (OBS) Law requires an OBS facility to obtain and maintain full accredited status by a nationally recognized accrediting agency approved by the health commissioner, providing proof of its certification. The court noted no claim was made by State Farm that UESS was not in full compliance with required certifications to conduct its OBS business under PHL §230-d. It ruled while UESS was not authorized to receive reimbursement under the facility fee schedule as it was not an Art. 28 facility, it was entitled to reimbursement under Insurance Law §5102(a)(1). Yet, as a question of fact existed regarding the amount of the charge for services, a trial was required.
