September 19, 2016

Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51300(U))

https://www.beynensonlaw.com/case-law/urban-well-acupuncture-p-c-v-erie-ins-co-of-n-y-2016-ny-slip-op51300u/

Court: Appellate Term, First Department
Decided: September 19, 2016
Citation: 2016 NY Slip Op 51300(U) · 53 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y., 53 Misc 3d 126(A), 2016 NY Slip Op 51300(U) (App Term, 1st Dept 2016)

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 established its fee schedule defense for CPT codes 97813 and 97814, but a factual issue remained on code 99202. Its affidavits and documentary evidence established timely denials of the acupuncture claims under codes 97813 and 97814 because the charges exceeded the applicable workers' compensation fee schedule. The provider raised no triable issue concerning mailing or fee calculations for those claims. A triable issue remained as to whether the insurer properly denied the initial-evaluation claim billed under code 99202. The Appellate Term, First Department, modified the order to grant the insurer partial summary judgment dismissing the claims under codes 97813 and 97814, and otherwise affirmed the denial of summary judgment on the code 99202 claim.

Reported in New York Official Reports at Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51300(U))

[*1]

Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y.

2016 NY Slip Op 51300(U) [53 Misc 3d 126(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570163/16

Urban Well Acupuncture, P.C., a/a/o Zunilda Perez, Plaintiff-Respondent,
against
Erie Insurance Company of New York, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered March 12, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Paul A. Goetz, J.), entered March 12, 2015, modified by granting defendant partial summary judgment dismissing plaintiff’s claim for first-party no-fault benefits billed under CPT codes 97813 and 97814; as modified, order affirmed, without costs.

The affidavits and other documentary evidence submitted by defendant established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s no-fault claims billed under CPT codes 97813 and 97814 on the ground that the amounts charged were in excess of the fees set forth in the applicable worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept. 2009]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee pertaining to these claims.

However, triable issues remain as to whether defendant properly denied plaintiff’s claim for $70, billed under CPT code 99202 (initial evaluation), thus precluding summary judgment dismissing this claim (see Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co., 50 Misc 3d 127[A], 2015 NY Slip Op 51849[U][App Term, 1st Dept. 2015]).

Plaintiff’s remaining arguments are either unpreserved or lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: September 19, 2016

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.

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: Excess shown for some charges, not for others

Held the insurer established the 97813 and 97814 charges exceeded the fee schedule, but triable issues remained whether it properly denied the 99202 initial evaluation claim.

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, 7 (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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's affidavits established timely denial of the 97813 and 97814 claims and the provider raised no triable issue as to the efficacy of the mailing.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (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.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U)) FollowedThe insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture.
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.
Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2015 NY Slip Op 51849(U)) FollowedThe insurer established its fee-schedule defense to acupuncture claims, but a triable issue remained on the initial-evaluation claim.

Similar decisions

Urban Well Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50606(U))The insurer established fee schedule reductions for certain acupuncture claims and payment of the remaining claims under a settlement.
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.
Urban Well Acupuncture, P.C. v American Commerce Ins. Co. (2014 NY Slip Op 51520(U))The insurer failed to prove mailing of its denial through an affidavit describing a nonparty insurer's mailing practices.
Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. (2015 NY Slip Op 51850(U))The insurer proved timely mailing of fee-schedule denials through office procedures and the provider's receipt of enclosed checks.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51252(U))An insurer may use the chiropractors' acupuncture fee schedule to determine reimbursement for a licensed acupuncturist's services.