March 24, 2017

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-clarendon-natl-ins-co-2017-ny-slip-op50345u/

Court: Appellate Term, First Department
Decided: March 24, 2017
Citation: 2017 NY Slip Op 50345(U) · 55 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Fee schedule Verification requests Timeliness and preclusion
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127(A), 2017 NY Slip Op 50345(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 the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment motion in the assigned no-fault action. The insurer's fee-schedule proof was insufficient to establish prima facie entitlement to dismissal. Contrary to the provider's contention, however, timely verification and follow-up requests tolled the 30-day statutory period under 11 NYCRR 65-3.8 (a) (1), making the denial timely.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))

[*1]

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co.

2017 NY Slip Op 50345(U) [55 Misc 3d 127(A)]

Decided on March 24, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570521/16

Healthy Way Acupuncture, P.C., a/a/o Leonar Sierra, Plaintiff-Respondent,
against
Clarendon National Ins. Co., Defendant-Appellant.

Defendant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered February 27, 2015, which denied its motion for summary judgment.

Per Curiam.

Order (Debra Rose Samuels, J.), entered February 27, 2015, insofar as appealed from, affirmed, with $10 costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the workers’ compensation fee schedule (see Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]; Doctor Richard Med., P.C. v Praetorian Ins. Co., 37 Misc 3d 128[A], 2012 NY Slip Op 51909[U] [App Term, 1st Dept 2012]; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]).

Contrary to plaintiff’s contention, the proof submitted establishes that plaintiff’s bill for services in the amount of $1,495 was timely denied, inasmuch as the 30-day statutory period was tolled by defendant’s timely verification and follow-up requests (see 11 NYCRR 65-3.8[a][1]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 24, 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's proof did not establish the excess as a matter of law; question left for trial

Held the insurer's proof insufficient to establish prima facie that the provider's charges exceeded the workers' compensation fee schedule rates, so its summary judgment motion was properly denied.

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.

Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))The provider's cross motion failed because factual issues remained over billing rates applicable to its apparent surgical facility status.
MIA Acupuncture, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 21480)The insurer proved lack of medical necessity for certain acupuncture services but failed to establish late submission or excessive fees.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.

Cited by

A label shows how the later decision treated this one.

Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U)) FollowedThe insurer's summary judgment motion on its fee-schedule defense was denied because its proof did not establish excessive charges.
Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))The insurer's contradictory submissions raised factual issues about timely and proper fee-schedule denials.

Similar decisions

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.
Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 51623(U))The insurer established a proper acupuncture fee-schedule denial; a mistaken year in the notary's jurat affected no substantial right.
Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51828(U))The insurer's follow-up verification requests were proper, supporting dismissal of the provider's no-fault action as premature.
New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 51706(U))Letters merely delaying payment without requesting specific verification do not toll the insurer's time to pay or deny a claim.