March 21, 2014

Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U))

https://www.beynensonlaw.com/case-law/sunrise-acupuncture-pc-v-tri-state-consumer-ins-co-2014-ny-slip-op50435u/

Court: Appellate Term, First Department
Decided: March 21, 2014
Citation: 2014 NY Slip Op 50435(U) · 42 Misc 3d 151(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Sunrise Acupuncture PC v Tri-State Consumer Ins. Co., 42 Misc 3d 151(A), 2014 NY Slip Op 50435(U) (App Term, 1st Dept 2014)

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's conclusory affidavit did not establish that the billed CPT codes fell outside the acupuncture provider's specialty. The record showed proper payment of a portion of the claims under the workers' compensation fee schedule, but factual issues remained concerning claims denied outright as outside the provider's specialty. Assuming without deciding that the claims examiner was qualified to give an expert opinion on that issue, the court found the affidavit insufficient to eliminate all factual disputes. Under Alvarez v Prospect Hosp., failure to meet the moving party's evidentiary burden required denial regardless of the opposing papers' sufficiency. The Appellate Term, First Department, reversed the order, denied the insurer's summary judgment motion, and reinstated the complaint.

Reported in New York Official Reports at Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U))

[*1]

Sunrise Acupuncture PC v Tri-State Consumer Ins. Co.

2014 NY Slip Op 50435(U) [42 Misc 3d 151(A)]

Decided on March 21, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
570024/14.

Sunrise Acupuncture PC, a/a/o Sherman Walker, Plaintiff-Appellant, – –
against
Tri-State Consumer Insurance Company Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered August 1, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered August 1, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the record reflects that defendant properly paid a portion of the submitted claims for acupuncture services pursuant to the workers’ compensation fee schedule (see Akita Medical Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] {App Term, 1st Dept 2013]), triable issues remain with respect to the claims denied outright by defendant on the stated basis that the CPT codes billed under were “outside the scope of the provider’s specialty.” Even assuming, without deciding, that defendant’s affiant, a claims examiner, may fairly be considered an expert qualified to render an opinion on such matters (but cf. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21-22 [2009]), the conclusory assertions set forth in her moving affidavit were insufficient to eliminate all triable issues of fact concerning the provider’s “specialty.” Defendant’s failure to meet that evidentiary burden mandates the denial of its motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 21, 2014

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: Excess shown for some charges, not for others

Found the insurer properly paid part of the acupuncture claims under the fee schedule, but held its examiner's conclusory assertions that other CPT codes were outside the provider's specialty insufficient, leaving triable issues on those denials.

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.

Cited in this decision

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

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U))The insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture.
Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351) Contrasted (cf., but see)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.

Cited by

A label shows how the later decision treated this one.

Easy Care Acupuncture, PC v MVAIC (2017 NY Slip Op 51346(U)) FollowedA failure to deny a claim within 30 days does not preclude a defense that coverage limits have been exhausted.
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.
Easy Care Acupuncture, P.C. v ELRAC, Inc. (2017 NY Slip Op 50234(U))The defendant's failure to timely and properly mail a denial precluded its excessive-fee defense to the acupuncture claims.
Easy Care Acupuncture, PC v MVAIC (2016 NY Slip Op 51556(U))MVAIC's submissions left factual issues about whether payments to another provider properly exhausted coverage for billed codes.
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.

Similar decisions

Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51170(U))The insurer failed to establish that services billed under CPT code 97039 were nonreimbursable as outside the provider's specialty.
Sunrise Acupuncture, P.C. v Merchants Preferred Ins. Co. (2019 NY Slip Op 52034(U))The insurer failed to prove its billing defenses and submitted an inadmissible IME report to support its medical-necessity defense.
Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50706(U))The insurer lacked expert fee-schedule proof, and the provider's treating acupuncturist raised a factual issue on medical necessity.
Sunrise Acupuncture PC v ELRAC, Inc. (2016 NY Slip Op 50905(U))The provider failed to justify submitting claims more than a year after services, despite initially sending them to MVAIC by mistake.
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.