In the June 11, 2015, No-Fault Insurance Law Wrap-Up,1 we reported on Government Employees Ins. Co. v. Avanguard Med. Group2 and the Appellate Division, Second Department’s holding as to whether a no-fault insurer is required to pay no-fault medical benefits to an office-based surgical (OBS) facility not licensed under Public Health Law Article 28. The Court of Appeals subsequently granted leave to appeal, and on March 31, 2016, issued its decision, affirming the Appellate Division’s decision.3
The defendant in Avanguard is a physician-owned OBS facility which provides out-patient surgical facility services, such as use of the operating room and staff, necessary for the performance of certain surgical procedures.4 The defendant is accredited as an OBS facility pursuant to Public Health Law 230. However, unlike hospitals and ambulatory surgery centers (ASCs), it is not licensed or regulated under Public Health Law Article 28. The defendant billed the plaintiff no-fault insurer for surgical facility fees. These OBS facility fees were in addition to and separate from the surgical services performed and billed by the treating physicians.
