August 18, 2016

Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51245(U))

https://www.beynensonlaw.com/case-law/al-acupuncture-p-c-v-praetorian-ins-co-2016-ny-slip-op51245u/

Court: Appellate Term, Second Department
Decided: August 18, 2016
Citation: 2016 NY Slip Op 51245(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Fee schedule
Legal questions: Lack of medical necessity · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Al Acupuncture, P.C. v Praetorian Ins. Co., 2016 NY Slip Op 51245(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 full fee schedule payment of one acupuncture claim and lack of medical necessity for the remaining claims. It proved timely mailing of the denial and full payment of the acupuncture claim under the workers' compensation fee schedule for chiropractors, making medical necessity moot for that claim. For the remainder, its sworn IME report supplied a factual basis and medical rationale for finding further treatment unnecessary. The providers' opposing affidavit failed meaningfully to address or rebut the report's conclusions, and they did not challenge the finding under CPLR 3212 (g) that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51245(U))

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

AL Acupuncture, P.C. and NY OSTEOPATHIC, P.C., as Assignees of GIORGI KURDOVANIDZE, Respondents,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied the motion and cross motion but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), to defendant’s defense of lack of medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim by plaintiff AL Acupuncture, P.C. for services rendered August 25, 2008 through September 11, 2008, defendant established that the denial of claim form at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid AL Acupuncture, P.C. for these services 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]). As this claim was fully paid, any issue as to the medical necessity of the claim is moot and, thus, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim should have been granted.

In support of the branch of its cross motion seeking summary judgment dismissing the remainder of the complaint, which sought to recover upon claims which had been denied on the ground of lack of medical necessity, defendant submitted a sworn independent medical examination (IME) report, which set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Thus, defendant made a prima facie showing of its entitlement to summary judgment dismissing these claims. In opposition to this branch of defendant’s cross motion, plaintiffs submitted an affidavit which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and [*2]as plaintiffs have not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these claims, the branch of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 18, 2016

Legal questions (3)

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.

Lack of medical necessity

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

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the sworn IME report set forth a factual basis and medical rationale, and the provider's affidavit failed to meaningfully refer to or rebut it, so the insurer got summary judgment on those claims.

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, 315 (this one included) are in the same category.

Proving a fee schedule defense

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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 showed it had fully paid the acupuncture claim under the fee schedule for acupuncture by chiropractors, so nothing more was due and medical necessity was moot.

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

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 146 (this one included) are in the same category.

Proof of mailing

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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 established that the denial of claim form at issue had been timely mailed, before reaching the fee schedule ground.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

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.
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.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.
Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51772(U))The insurer established timely denials, full fee-schedule payment for certain acupuncture services and lack of necessity for the remaining services.
Raz Acupuncture, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50305(U))The insurer's unrebutted IME report established lack of medical necessity for acupuncture services from October 30, 2007 through January 30, 2008.
Gentle Care Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51290(U))The insurer proved full fee-schedule payment for earlier acupuncture claims and lack of medical necessity for later treatment.
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.