December 13, 2019

Sunrise Acupuncture, P.C. v Merchants Preferred Ins. Co. (2019 NY Slip Op 52034(U))

https://www.beynensonlaw.com/case-law/sunrise-acupuncture-p-c-v-merchants-preferred-ins-co-2019-ny-slip-op52034u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52034(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Fee schedule Verification requests Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Sunrise Acupuncture, P.C. v Merchants Preferred Ins. Co., 2019 NY Slip Op 52034(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to prove its billing defenses and submitted an inadmissible IME report to support its medical-necessity defense. For CPT code 99203, the insurer did not show that another provider had billed for, and already received payment for, the services. For CPT code 97039, a need for more information required a verification request, following Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co.; the insurer did not demonstrate any such request. The provider also preserved its objection that the IME report was inadmissible. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment dismissing the claims under those two codes and the portions denied for lack of medical necessity.

Reported in New York Official Reports at Sunrise Acupuncture, P.C. v Merchants Preferred Ins. Co. (2019 NY Slip Op 52034(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Sunrise Acupuncture, P.C., as Assignee of Linnette Howard-Cole, Appellant,
against
Merchants Preferred Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 28, 2019. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and portions of claims that were denied on the ground of lack of medical necessity.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and the portions of claims that were denied on the ground of lack of medical necessity are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 (initial visit) and 97039 (moxibustion), as well as the portions of claims that were denied on the ground of lack of medical necessity.

Plaintiff correctly argues that defendant failed to establish its claimed defense as to the [*2]services billed under CPT code 99203, as defendant did not demonstrate that a different provider had billed for such services and that said provider was previously paid for such services. Plaintiff also correctly argues that defendant could not deny, on the ground that defendant needed more information before it could make a determination with respect to such claims, so much of plaintiff’s claims as sought to recover for services billed under CPT code 97039—instead, it was defendant’s burden to request additional verification in the first instance (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 175 AD3d 455 [2019]), and defendant did not demonstrate that it had done so. Consequently, defendant did not establish its prima facie entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]) upon plaintiff’s claims seeking to recover for services billed under CPT codes 99203 and 97039.

In addition, plaintiff is correct that defendant was not entitled to summary judgment dismissing the portions of plaintiff’s claims which defendant denied on the ground of lack of medical necessity, as the independent medical examination report submitted by defendant is not in admissible form (see Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 134[A], 2013 NY Slip Op 50063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), which objection plaintiff raised in its opposition papers.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and portions of the claims that were denied on the ground of lack of medical necessity are denied.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk
Decision Date: December 13, 2019

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer not entitled to summary judgment on the claims denied for lack of medical necessity because its IME report was not in admissible form, an objection the provider raised below.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2019 NY Slip Op 06059) FollowedAn insurer that fails to request verification cannot deny a moxibustion claim under CPT code 97039 for insufficient information.
Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50063(U)) FollowedThe insurer's psychologist's peer review was inadmissible, and the provider failed to establish entitlement to summary judgment.

Similar decisions

New Age Acupuncture, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 50737(U))The insurer's summary judgment motion concerning services billed under CPT code 97026 was denied on appeal.
Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U))The insurer's conclusory affidavit did not establish that the billed CPT codes fell outside the acupuncture provider's specialty.
Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2017 NY Slip Op 51452(U))An insurer must request missing documentation for a By Report claim before denying it for lack of that documentation.
Sunrise Acupuncture, P.C. v Hertz Claim Mgt. Corp. (2019 NY Slip Op 51357(U))The insurer established late submission of all disputed claims except one it conceded was timely filed.
Acuhealth Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 51871(U))The insurer failed to show that it requested verification of the documentation needed to price services billed under CPT code 97039.