New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on October 8, 2003, representing the position of the New York State Insurance Department.

RE: No-Fault Attorney Fees for Multiple Provider Bills

QUESTION PRESENTED:

When an assignee No-Fault provider submits bills for health services rendered to an eligible injured person to that person’s insurer, and such bills are either denied or partially paid and the provider thereafter initiates a court action to contest the denials of the multiple bills which results in a payment award to the provider, is the provider entitled to a minimum attorney’s fee of $60 for each denied bill now required to be paid, or is the proper amount of attorney’s fees based upon the aggregate sum of all bills awarded reimbursement by the Court in the single action that was commenced?

CONCLUSION:

The minimum amount of attorney’s fees awarded to an assignee health provider who has prevailed in a court action brought against a No-Fault insurer is based upon the aggregate amount of payment required to be reimbursed based upon the amount awarded for each bill which had been submitted and denied. The minimum attorney fee amount of $60 is not due and owing for each bill submitted as part of the total amount of the disputed claim sought in the court action.

FACTS:

None presented.

ANALYSIS:

N.Y. Comp. Codes R. & Regs. tit. 11, § 65-4 (2003) (Regulation 68-D), under Section 65-4.6, establishes the amount of attorney’s fees reimbursable and places limitations upon the amount of reimbursement payable insurers of applicants’ attorney’s fees for services necessarily performed in the resolution of No-Fault disputes.

With respect to instances where an attorney of an applicant for benefits commences a court action or initiates arbitration in order to resolve a claim dispute and receives an award of benefits, 11 NYCRR 65-4.6(c) establishes that "…the minimum attorney’s fees payable pursuant to this subpart shall be $60." 11 NYCRR 65-4.6(e) goes on to establish that "for all other disputes subject to arbitration" (which includes the initiation of court actions to resolve payment disputes as those disputes are "subject to arbitration" in that the provider had the option to seek a resolution of the dispute by submitting it for No-Fault arbitration)…the attorney’s fee shall be limited as follows: 20 percent of the amount of first party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850…".

Section 65-4.6(e) makes it clear that the amount of attorney’s fees awarded will be based upon 20% of the total amount of first party benefits awarded. That total amount is derived from the total amount of individual bills disputed in either a court action or arbitration, regardless of whether one bill or multiple bills are presented as part of a total claim for benefits, based upon the health services rendered by a provider to the same eligible insured.

Pursuant to Section 65-4.6(e), the total amount due the attorney will be derived by calculating 20% of the total claim which is resolved in favor of the applicant, which amount is totaled from the total amount of disputed bills which are submitted on behalf of the applicant. This total amount is subject to a cap of $850.00. Where the 20% of total claim awarded results in an amount less than $60, the attorney is entitled to the minimum $60 fee pursuant to Section 65-4.6(c).

Since the 20% calculation is based upon benefits awarded from the total number of disputed bills in a court action commenced, an attorney would not be entitled to a $60 fee for each disputed bill which is resolved in favor of the applicant.

For further information you may contact Supervising Attorney Lawrence M. Fuchsberg at the New York City Office.