September 19, 2017

Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51170(U))

https://www.beynensonlaw.com/case-law/acupuncture-approach-p-c-v-tri-state-consumer-ins-co-2017-ny-slip-op51170u/

Court: Appellate Term, First Department
Decided: September 19, 2017
Citation: 2017 NY Slip Op 51170(U) · 57 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule Verification requests
Legal questions: Outstanding verification and premature actions · Proving a fee schedule defense (see the maps)

Cite as

Acupuncture Approach, P.C. v Tri State Consumer Ins. Co., 57 Misc 3d 129(A), 2017 NY Slip Op 51170(U) (App Term, 1st Dept 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.

The insurer failed to establish that services billed under CPT code 97039 were nonreimbursable as outside the provider's specialty. The Appellate Term, First Department, modified the order granting the insurer summary judgment by reinstating the provider's claim under that code and otherwise affirmed. The insurer's submissions did not establish its contention that the service was a physical medicine modality outside the provider's specialty, leaving factual issues over the propriety of the denial. The remaining claims at issue on appeal were properly dismissed as premature because the provider undisputedly failed to respond to duly issued verification requests. The provider prevailed on the code 97039 claim, while the insurer prevailed on the remaining claims.

Reported in New York Official Reports at Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51170(U))

[*1]

Acupuncture Approach, P.C. v Tri State Consumer Ins. Co.

2017 NY Slip Op 51170(U) [57 Misc 3d 129(A)]

Decided on September 19, 2017

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570145/17

Acupuncture Approach, P.C., a/a/o Berky Lugo, Plaintiff-Appellant,
against
Tri State Consumer Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered June 27, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Andrea Masley, J.), entered June 27, 2013, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT code 97039; as modified, order affirmed, with $10 costs.

Triable issues of fact are raised as to whether defendant-insurer properly denied plaintiff’s no-fault claim billed under CPT code 97039, thus precluding summary judgment dismissing this claim. Defendant’s submissions failed to establish prima facie its contention that the service is not reimbursable because it is a “physical medicine modality” and “outside the provider’s specialty” (see TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept 2015]; see also Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996 [2008]). The remaining claims at issue on appeal were properly dismissed as premature, since it is undisputed that plaintiff failed to respond to the duly issued verification requests (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 19, 2017

Legal questions (2)

Questions 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.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature

Affirmed dismissal of the remaining claims as premature because it was undisputed the provider failed to respond to duly issued verification requests.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decision

Of the 38 decisions on this question in the First Department courts and the Court of Appeals, 23 (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.

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's proof did not establish the excess as a matter of law; question left for trial

Reinstated the CPT 97039 claim, holding the insurer failed to establish prima facie that the service was not reimbursable as a physical medicine modality outside the acupuncturist's specialty, leaving triable issues.

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

Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 10 (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.

TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))The insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.
VS Care Acupuncture v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50164(U))The insurer failed to establish that acupuncture claims under CPT codes 97039 and 97026 were ineligible for reimbursement.
Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211)The insurer established that acupuncture reimbursement was properly limited to charges for similar procedures under existing fee schedules.
St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00214) FollowedThe insurer's follow-up verification requests on the 30th day were effective, and the provider's incomplete compliance made the action premature.

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.
Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2015 NY Slip Op 51849(U))The insurer established its fee-schedule defense to acupuncture claims, but a triable issue remained on the initial-evaluation claim.
Gl Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51419(U))The insurer proved fee-schedule payment for services billed under CPT codes 97810 and 97811, but not entitlement to dismiss the initial-visit claim.
Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services.
Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.