January 20, 2017

Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 50119(U))

https://www.beynensonlaw.com/case-law/acuhealth-acupuncture-p-c-v-ameriprise-ins-co-2017-ny-slip-op50119u/

Court: Appellate Term, Second Department
Decided: January 20, 2017
Citation: 2017 NY Slip Op 50119(U) · 54 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Medical necessity
Legal questions: Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co., 54 Misc 3d 136(A), 2017 NY Slip Op 50119(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 full payment under the workers' compensation fee schedules and lack of medical necessity for later acupuncture services. The provider sought assigned no-fault benefits for acupuncture treatments. The insurer's litigation examiner's affidavit and supporting exhibits established payment in accordance with the applicable schedules for the earlier services, following Great Wall Acupuncture, P.C. v Geico Ins. Co. Its expert's sworn IME report established lack of medical necessity for the remaining services, which the insurer had timely denied. The provider raised no triable issue on either defense. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 50119(U))

[*1]

Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co.

2017 NY Slip Op 50119(U) [54 Misc 3d 136(A)]

Decided on January 20, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2015-1073 K C

Acuhealth Acupuncture, P.C., as Assignee of TYKEISHA DAVIS, Appellant,
against
Ameriprise Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered December 22, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had properly used the workers’ compensation fee schedules to reimburse plaintiff for the acupuncture services which plaintiff had rendered through September 23, 2010, and that it had timely denied reimbursement for the remaining services at issue, provided from September 30, 2010 through October 8, 2010, due to a lack of medical necessity, based upon an independent medical examination (IME). The Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, we find that the affidavit of defendant’s litigation examiner, and the exhibits annexed in support of defendant’s motion, established that defendant had fully paid plaintiff in accordance with the workers’ compensation fee schedules for the services provided from July 9, 2010 through September 23, 2010 (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Moreover, the sworn report of defendant’s expert established, prima facie, a lack of medical necessity for the services provided from September 30, 2010 through October 8, 2010, for which defendant had timely denied reimbursement based on an IME.

Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion with respect to either of the proffered defenses. Plaintiff’s remaining arguments are either lacking in merit or are improperly raised for the first time on appeal.

Accordingly, the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: January 20, 2017

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.

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 expert's sworn IME report established prima facie a lack of medical necessity for the later services, and the provider failed to raise a triable issue.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (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 litigation examiner's affidavit and exhibits established that the insurer had fully paid the acupuncture services under the workers' compensation fee schedules, and the provider raised no triable issue.

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.

Cited in this decision

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

Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.

Similar decisions

GL Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51698(U))The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors.
Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.
BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
Acupuncture Healthcare Plaza I, P.C. v Truck Ins. Exch. (2016 NY Slip Op 50309(U))The insurer established timely mailing of its denial and full payment under the fee schedule for acupuncture performed by chiropractors.
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.