September 30, 2008

Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211)

https://www.beynensonlaw.com/case-law/forrest-chen-acupuncture-servs-p-c-v-geico-ins-co-2008-ny-slip-op07211/

Court: Appellate Division, Second Department
Decided: September 30, 2008
Citation: 2008 NY Slip Op 07211 · 54 AD3d 996
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Fee schedule Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense (see the maps)

Cite as

Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996 (2d Dept 2008)

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 that acupuncture reimbursement was properly limited to charges for similar procedures under existing fee schedules. The provider's submissions showed timely partial denials on prescribed forms that were neither factually insufficient nor vague, defeating its prima facie showing. The insurer proved that no acupuncture fee schedule existed in 2001 and that its payments complied with 11 NYCRR 68.5 (b) and Insurance Law § 5108. The provider raised no factual issue regarding the reimbursement limit. Its challenge to the evidence supporting the chosen comparable procedure was unpreserved. The Appellate Division, Second Department, affirmed the Appellate Term's order sustaining denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211)

Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co.

2008 NY Slip Op 07211 [54 AD3d 996]

September 30, 2008

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, October 29, 2008

Forrest Chen Acupuncture Services, P.C., as Assignee of Melissa Lugo, Appellant,
v
GEICO Insurance Co., Respondent.

—[*1] Alden Banniettis, Brooklyn, N.Y. (Jeff Henle of counsel), for appellant.

Teresa M. Spina, Woodbury, N.Y. (Emilio A. Cacace of counsel), for respondent.

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated April 26, 2007, which affirmed an order of the Civil Court of the City of New York, Kings County (Rubin, J.), entered August 8, 2005, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order dated April 26, 2007, is affirmed, with costs.

The Appellate Term properly affirmed the Civil Court order denying the plaintiff’s motion for summary judgment on the complaint and granting the defendant’s cross motion for summary judgment dismissing the complaint. The plaintiff’s evidentiary submissions revealed that the defendant insurance company timely issued denial of claim forms in April and May of 2001, which partially denied payment upon the ground that no fee schedule existed for the treatment provided, and payment could thus be limited to a reasonable and customary fee. Although “[a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004]; see New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]), here the defendant’s denials of claim were issued on prescribed forms, and were not factually insufficient or vague. Under these circumstances, [*2]the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Allstate Ins. Co., 45 AD3d 579 [2007]; see also A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]).

Furthermore, the defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by submitting evidentiary proof that no fee schedule for the reimbursement of acupuncture treatments existed in 2001, and that it properly limited payment to “charges permissible for similar procedures under schedules already adopted” (11 NYCRR 68.5 [b]; see Insurance Law § 5108; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004]). In opposition to the cross motion, the plaintiff failed to raise an issue of fact as to whether reimbursement for its acupuncture services was properly limited.

The plaintiff further contends that the defendant failed to offer sufficient evidence in support of the “similar procedure” it chose for comparison to the services offered by the plaintiff in arriving at the rate of reimbursement. This contention, however, is not properly before this Court, as it was not raised in the Civil Court, and was not addressed by the Appellate Term (see Matter of New York City Hous. Auth. v Jackson, 48 AD3d 818, 820 [2008]). Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.

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.

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: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to establish prima facie entitlement because its own submissions showed timely partial denials on prescribed forms that were not factually insufficient or vague.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

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 the insurer established that no acupuncture fee schedule existed in 2001 and that it properly limited payment to charges for similar procedures under existing schedules, and the provider raised no issue of fact.

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. 5 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119) FollowedAn insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.
New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (2006 NY Slip Op 06223) FollowedThe insurers were precluded from contesting a hospital claim because they failed to establish that their denial letter met regulatory requirements.
Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235) FollowedThe insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 07663) FollowedA timely but fatally defective denial cannot be cured by supplying omitted information after the 30-day denial period expires.
Westchester Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 08447) FollowedThe hospital failed to establish that the insurer's timely NF-10 denial was too vague or deficient to constitute a proper response.
A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635)An insurer need not include a medical rationale in a denial form based on a medical examination or peer review report.

Cited by

A label shows how the later decision treated this one.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U)) FollowedThe insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture.
VS Care Acupuncture v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50164(U)) FollowedThe insurer failed to establish that acupuncture claims under CPT codes 97039 and 97026 were ineligible for reimbursement.
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.
Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C. (2019 NY Slip Op 08942)The insurers failed to establish that licensed acupuncturists could be reimbursed only under the chiropractic fee schedule.
MK Healthcare Med. PC v Travelers Ins. Co. (2022 NY Slip Op 50824(U))The insurer proved at trial that lower-extremity electrodiagnostic studies were medically unnecessary.
Yklik Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 28532)An insurer must issue a timely denial to preserve a fee-schedule defense, including a defense of partial payment under the schedule.
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.

Similar decisions

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.
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.
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.
LVOV Acupuncture, P.C. v GEICO Ins. Co. (2011 NY Slip Op 51845(U))The workers' compensation fee schedule incorporated into no-fault regulations may be judicially noticed under CPLR 4511 (b).