No-Fault Carriers Not Required to Pay “Facility Fees” for “Office-Based” Surgery

The Second Department, in a full-fledged opinion by Justice Balkin, determined that a no-fault insurer is not required to pay a “facility fee” for “office-based” surgery:

The No-Fault Law (Insurance Law art 51) and its implementing regulations specifically provide that the operator of a hospital or “ambulatory surgery center,” both of which are established under, and subject to, the comprehensive statutory and regulatory framework of Public Health Law article 28, may properly bill a no-fault carrier for facility fees (see e.g. 10 NYCRR 86-4.40). There is, however, no provision for recovery of a facility fee for the performance of an “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (Public Health Law § 230-d[1][b]). Public Health Law § 230-d, which is not contained in Public Health Law article 28, imposes a substantially more modest level of oversight and regulation than article 28. We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. * * *

The facility fee is a charge for the cost of providing “technicians, medical assistant[s] . . . [and] equipment,” such as X-ray and ultrasound equipment, for office-based surgery. Government Empls Ins Co v Avanguard Med Group PLLC, 2015 NY Slip Op 01413, 2nd Dept 2-18-15