April 18, 2013

Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))

https://www.beynensonlaw.com/case-law/utica-acupuncture-p-c-v-interboro-ins-co-2013-ny-slip-op50643u/

Court: Appellate Term, First Department
Decided: April 18, 2013
Citation: 2013 NY Slip Op 50643(U) · 39 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Verification requests Medical necessity
Legal questions: Proof of mailing · Lack of medical necessity · Outstanding verification and premature actions (see the maps)

Cite as

Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139(A), 2013 NY Slip Op 50643(U) (App Term, 1st Dept 2013)

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 provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture. For one group of claims, the provider's principal described procedures for logging verification requests but disclosed no search results showing whether the insurer's letters were recorded as received. The bare denial of receipt raised no triable issue. For the remaining claims, the insurer's IME report supplied a factual basis and medical rationale for finding the assignor's injuries resolved and further acupuncture unnecessary. The provider's affidavit described traditional Chinese medicine generally without addressing the assignor's injuries or the treatments' necessity. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing all claims.

Reported in New York Official Reports at Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))

[*1]

Utica Acupuncture, P.C. v Interboro Ins. Co.

2013 NY Slip Op 50643(U) [39 Misc 3d 139(A)]

Decided on April 18, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
571041/12.

Utica Acupuncture, P.C. a/a/o Juarez Omar, Plaintiff-Respondent, – –
against
Interboro Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered August 15, 2012, as denied, in part, its motion for summary judgment dismissing the complaint or, alternatively, to compel discovery.

Per Curiam.

Order (Raul Cruz, J.), entered August 13, 2012, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in toto.

In opposition to the defendant-insurer’s prima facie showing of entitlement to judgment dismissing plaintiff’s no-fault claims in connection with services rendered from May 11, 2009 through July 9, 2009, plaintiff failed to raise a triable issue of fact. The affidavit of plaintiff’s principal, while explaining in general terms the office procedure followed by plaintiff in “log[ging]” verification requests into its “billing program,” failed to disclose the results of any search the affiant may have made of the billing program to ascertain whether the verification letters shown to have been sent by defendant had been logged in by plaintiff as received (see Comprehensive Neurological Servs., PA v Tri-State Consumer Ins., 35 Misc 3d 144[A], 2012 NY Slip Op 50950[U] [App Term, 1st Dept 2012]). Plaintiff’s bald denial of receipt of defendant’s verification requests was insufficient on this record to raise a triable issue.

Defendant also made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s claims for services rendered from July 20, 2009 through September 10, 2009. In this regard, defendant submitted, inter alia, an independent medical examination report of its examining acupuncturist, which set forth a factual basis and medical rationale for the acupuncturist’s stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment.

In opposition, plaintiff failed to raise a triable issue, relying largely on an affidavit of its principal, who, while broadly describing his approach to the practice of traditional Chinese medicine, failed to set forth any allegations as to the assignor’s claimed injuries or the medical [*2]necessity of the acupuncture treatments here at issue (see generally CPT Medical Services, P.C. v New York Cent. Mut, Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 18, 2013

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.

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

Held the insurer's verification letters were shown to have been sent, and the provider's general account of its logging procedure, disclosing no search result, and bare denial of receipt did not rebut receipt.

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 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Lack of medical necessity

Open the full map

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 insurer's IME report showing resolved injuries established lack of necessity for later acupuncture, and the provider's principal's general affidavit on Chinese medicine, saying nothing of the assignor's injuries, raised no triable issue.

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 73 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category.

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

Held the insurer showed its verification requests were sent and unanswered, and the provider's general description of its logging procedure without a search result and bare denial of receipt raised no triable issue.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

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

Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co. (2012 NY Slip Op 50950(U)) FollowedThe provider failed to rebut presumed receipt of verification requests because its affidavit did not show anyone checked its computer records.
CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526)The provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity.

Cited by

A label shows how the later decision treated this one.

V.S. Care Acupuncture PC v MVAIC (2015 NY Slip Op 50350(U)) FollowedMVAIC need not notify a provider of a scheduled IME before relying on the resulting report to deny further treatment.
Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U)) FollowedThe insurer's IME report established that further acupuncture treatment was not medically necessary.
Pugsley Chiropractic PLLC v MVAIC (2015 NY Slip Op 50718(U)) FollowedMVAIC need not notify the provider of an IME scheduled for the assignor.
American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.

Similar decisions

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment.
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.
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.
Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U))The insurer's peer review reports failed to establish lack of medical necessity for the acupuncture services at issue.
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.