August 31, 2009

Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U))

https://www.beynensonlaw.com/case-law/great-wall-acupuncture-p-c-v-geico-ins-co-2009-ny-slip-op52308u/

Court: Appellate Term, Second Department
Decided: August 31, 2009
Citation: 2009 NY Slip Op 52308(U) · 25 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Fee schedule Timeliness and preclusion Provider's prima facie case
Legal questions: Proving a fee schedule defense · Claimant's prima facie case on motions (see the maps)

Cite as

Great Wall Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 137(A), 2009 NY Slip Op 52308(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance. The provider sought unpaid balances for acupuncture services rendered by a licensed acupuncturist. Its billing manager's affidavit established the admissibility of the supporting records under CPLR 4518. Under 11 NYCRR 65-3.8, the insurer's failure to prove timely denial entitled the provider to summary judgment on one claim's unpaid portion. On the remaining claims, which were timely paid in part and denied, the insurer properly used the chiropractors' acupuncture fee schedule. The Appellate Term, Second Department, reversed the judgment, awarded the provider summary judgment on the one unpaid balance, left dismissal of the remaining claims undisturbed, and remitted for statutory interest and attorney's fees.

Reported in New York Official Reports at Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U))

[*1]

Great Wall Acupuncture, P.C. v GEICO Ins. Co.

2009 NY Slip Op 52308(U) [25 Misc 3d 137(A)]

Decided on August 31, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2008-239 Q C.

Great Wall Acupuncture, P.C. as assignee of CLARENCE BECKFORD and JEFFREY DESIR, Appellant,
against
GEICO Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 2, 2007, deemed from a judgment of the same court entered January 18, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 2, 2007 order denying plaintiff’s motion for summary judgment and, upon a search of the record, granting defendant summary judgment, dismissed the complaint.

Judgment reversed without costs, order, insofar as it denied so much of plaintiff’s motion as sought summary judgment upon the unpaid portion of a $1,080 claim form received by defendant on December 23, 2004, and, insofar as it, upon a search of the record, granted defendant summary judgment as to the unpaid portion of said claim form, vacated, so much of plaintiff’s motion as sought summary judgment upon the unpaid portion of said claim form granted, and matter remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In support of a motion for summary judgment in this action by a provider to recover assigned first-party no-fault benefits, plaintiff showed that it had submitted a bill to defendant seeking to recover at a rate of $90 for each session of acupuncture rendered to plaintiff’s assignors by plaintiff’s licensed acupuncturist. Defendant paid plaintiff for the sessions at the reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services. Plaintiff sought full reimbursement, i.e., the $60.70 balance allegedly due for each session, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated, that is, between $85 and $100 per session. The court denied plaintiff’s motion [*2]for summary judgment, searched the record and granted defendant summary judgment dismissing the complaint. This appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s assertion, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see 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]).

Defendant failed to establish that it timely denied the unpaid portion of the claims set forth on the claim form seeking the sum of $1,080 for assignor Clarence Beckford, which form defendant received on December 23, 2004 (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As a result, its defense that plaintiff’s $1,080 claim exceeded the amount permitted by the workers’ compensation fee schedule is precluded (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and plaintiff was entitled to summary judgment upon the unpaid portion of said $1,080 claim.

With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant timely paid a portion of each of said claims and that defendant timely denied the $60.70 per session balance allegedly due on them. For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), 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 acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Therefore, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s complaint with respect to said claims.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: August 31, 2009

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: Insurer proved the billed amount exceeded the applicable fee schedule

Held it was proper for the insurer to pay the licensed acupuncturist at the chiropractor acupuncture rate, and since it timely paid at that rate, summary judgment dismissing the remaining claims was upheld.

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

Open the full map

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)

Rejected the insurer's argument and held the billing manager's affidavit sufficient to make the annexed claim documents admissible under CPLR 4518.

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.

Cited in this decision

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

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe 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) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Infinity Health Prods., Ltd. v Eveready Ins. Co. (2008 NY Slip Op 28271) FollowedThe insurer's follow-up verification demand, mailed 27 days after its initial demand, was premature and did not toll the claim determination period.
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.
AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2009 NY Slip Op 51017(U)) FollowedAcupuncture services rendered by a licensed acupuncturist may be reimbursed at the workers' compensation fee schedule rate for chiropractors.
AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2007 NY Slip Op 27371) FollowedAn insurer may use the workers' compensation fee schedule for chiropractors to reimburse acupuncture performed by a licensed acupuncturist.

Cited by

A label shows how the later decision treated this one.

Flushing Traditional Acupuncture, P.C. v Infinity Group (2012 NY Slip Op 22345) FollowedThe insurer failed to establish that its Pennsylvania policy limit governed the claims or that timely verification requests tolled denial time.
Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U)) FollowedThe insurer failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims.
Nova Acupuncture, P.C. v Mercury Cas. Co. (2015 NY Slip Op 50914(U))The insurer proved lack of medical necessity for two claims but failed to establish its fee schedule defense for the remaining claims.

Similar decisions

MIA Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51731(U))The insurer proved full payment of fee schedule claims and raised a medical necessity issue on the remaining acupuncture claims.
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.
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.
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.
Point of Health Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51724(U))The insurer proved timely denials and full payment under the chiropractor acupuncture fee schedule for the three appealed claims.