December 22, 2017

Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51891(U))

https://www.beynensonlaw.com/case-law/z-m-s-y-acupuncture-p-c-v-geico-gen-ins-co-2017-ny-slip-op51891u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51891(U) · 58 Misc 3d 143(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co., 58 Misc 3d 143(A), 2017 NY Slip Op 51891(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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.

A fee-schedule defense is not subject to preclusion for services rendered after April 1, 2013, under 11 NYCRR 65-3.8 (g). The insurer demonstrated full payment for acupuncture services billed under CPT codes 97811, 97813 and 97814 using the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider failed to rebut that showing. Because the services were rendered after the regulation's effective date, the defense was not precluded. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branches of the insurer's cross motion for summary judgment dismissing those claims.

Reported in New York Official Reports at Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51891(U))

[*1]

Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co.

2017 NY Slip Op 51891(U) [58 Misc 3d 143(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1563 K C

Z. M. S. & Y Acupuncture, P.C., as Assignee of Stratton, Brenda, Respondent,
against
GEICO General Insurance Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 17, 2015. The order, insofar as appealed from, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.

Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff [*2]Apr. 1, 2013]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]). As plaintiff failed to rebut defendant’s showing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer proved the billed amount exceeded the applicable fee schedule

Held the insurer demonstrated, without rebuttal, that it had fully paid the acupuncture codes under the chiropractor acupuncture fee schedule, a defense not subject to preclusion for post-April 1, 2013 services.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.

Cited by

A label shows how the later decision treated this one.

Island Life Chiropractic Pain Care, PLLC v Zipcar (2021 NY Slip Op 50844(U)) FollowedAffirmative defenses receive liberal construction on a CPLR 3211 (b) motion and should remain if their availability is doubtful.
All Healthy Style Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 51333(U)) FollowedThe self-insurer failed to establish either proper fee schedule reductions or exhaustion of benefits before receiving the disputed bills.
Pro-Align Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50341(U)) FollowedThe insurer's coding evidence established full payment under the fee schedule for the provider's pain fiber nerve conduction studies.

Similar decisions

Z.M.S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51860(U))The insurer proved full fee-schedule payment for three acupuncture billing codes but failed to explain its recoding of a fourth.
Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51643(U))The insurer established full payment of CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture.
Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51803(U))The insurer established full fee schedule payment for the appealed acupuncture services and untimely submission of two other claims.
Oleg’s Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51863(U))The insurer established full payment under the chiropractic acupuncture fee schedule for services billed under CPT codes 97813 and 97814.
Z.A. Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 51842(U))The insurer established proper acupuncture reimbursement under the chiropractic fee schedule and lack of medical necessity for later services.