October 1, 2010

MIA Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51731(U))

https://www.beynensonlaw.com/case-law/mia-acupuncture-p-c-v-geico-ins-co-2010-ny-slip-op-51731u/

Court: Appellate Term, Second Department
Decided: October 1, 2010
Citation: 2010 NY Slip Op 51731(U) · 29 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Medical necessity
Legal questions: Lack of medical necessity · Proving a fee schedule defense · Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

MIA Acupuncture, P.C. v GEICO Ins. Co., 29 Misc 3d 128(A), 2010 NY Slip Op 51731(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 proved full payment of fee schedule claims and raised a medical necessity issue on the remaining acupuncture claims. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order, and denied provider summary judgment. Searching the record, it dismissed cause seven and the fee schedule portion of cause six, remitting causes one through five and the medical necessity portion of cause six for further proceedings. Following Great Wall Acupuncture v GEICO Gen. Ins. Co., the insurer properly paid under the chiropractor acupuncture fee schedule. Its examining acupuncturist's affidavit and IME report raised a factual issue on the other claims. The provider had established its prima facie case under Insurance Law § 5106 (a), but the insurer's proof defeated judgment.

Reported in New York Official Reports at MIA Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51731(U))

[*1]

MIA Acupuncture, P.C. v GEICO Ins. Co.

2010 NY Slip Op 51731(U) [29 Misc 3d 128(A)]

Decided on October 1, 2010

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1361 Q C.

MIA Acupuncture, P.C. as Assignee of Cherry Ann Mellad, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 23, 2009, deemed from a judgment of the same court entered June 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 23, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,559.70.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied, upon searching the record, partial summary judgment is granted to defendant dismissing the seventh cause of action and so much of the sixth cause of action as sought to recover the unpaid balance of $105.21 on claims that were reduced pursuant to the workers’ compensation fee schedule, and the matter is remitted to the Civil Court for all further proceedings on the first through fifth causes of action and so much of the sixth cause of action as sought to recover upon a claim in the sum of $124.14.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it had timely denied reimbursement for most of the services at issue for lack of medical necessity based upon an independent medical examination and that it had properly paid for the remainder of the services at issue at a rate reduced pursuant to the workers’ compensation fee schedule. The Civil Court granted plaintiff’s motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Plaintiff established its prima facie entitlement to summary judgment (see Insurance Law [*2]§ 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The affidavit submitted by defendant in opposition to the motion was sufficient to establish that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff was not entitled to summary judgment on the claims making up the first through fifth causes of action and $124.14 of the sixth cause of action, which were denied based upon an independent medical examination, since defendant’s papers, which included an affidavit and examination report from the acupuncturist that performed the independent medical examination, were sufficient to demonstrate the existence of a triable issue of fact with respect to defendant’s defense of lack of medical necessity (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 & 11th Jud Dists 2007]).

For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Furthermore, since defendant established that it had fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the complaint as to those claims that were reduced pursuant to the workers’ compensation fee schedule (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied, upon searching the record, partial summary judgment is granted to defendant dismissing the seventh cause of action and so much of the sixth cause of action as sought to recover the unpaid balance of $105.21 on claims that were reduced pursuant to the workers’ compensation fee schedule, and the matter is remitted to the Civil Court for all further proceedings on the first through fifth causes of action and so much of the sixth cause of action as sought to recover upon a claim in the sum of $124.14.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

Legal questions (4)

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 was enough to defeat the provider's motion but not to win

Held the IME acupuncturist's affidavit and examination report raised a triable issue of fact on lack of medical necessity, so the provider was not entitled to summary judgment on the IME-based 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, 67 (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 properly paid the licensed acupuncturist at the chiropractor acupuncture rate and had fully paid the amount due under the fee schedule, so on searching the record the reduced claims were dismissed.

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

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider established its prima facie entitlement to summary judgment, shifting the burden to the insurer, but its motion was denied on the insurer's defenses.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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's affidavit sufficed to establish that its denials were timely mailed in accordance with its standard office practices and procedures.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Great Wall Acupuncture v GEICO Gen. Ins. Co. (2007 NY Slip Op 27164) FollowedThe insurer properly reimbursed the licensed acupuncturist at chiropractor rates because similar services and licensing requirements supported them.
Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467)An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2007 NY Slip Op 27371)An insurer may use the workers' compensation fee schedule for chiropractors to reimburse acupuncture performed by a licensed acupuncturist.

Similar decisions

Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U))The insurer's fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance.
Olga Bard Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 51898(U))The insurer established fee schedule and medical necessity defenses but failed to justify dismissal of the initial acupuncture visit claim.
WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))The insurer established full payment under the chiropractic acupuncture fee schedule except for the initial visit claim.
Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
Amercure Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 50068(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse services rendered by a licensed acupuncturist.