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November 14, 2013

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U))

https://www.beynensonlaw.com/case-law/akita-med-acupuncture-p-c-v-clarendon-ins-co-2013-ny-slip-op51860u/

Court
Appellate Term, First Department
Decided
November 14, 2013
Citation
2013 NY Slip Op 51860(U) · 41 Misc 3d 134(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 7 later decisions (see Cited by)
Issues
Fee schedule
Legal questions
Proving a fee schedule defense (see the maps)
Cite as
Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134(A), 2013 NY Slip Op 51860(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 insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture. The provider sought the difference between its billed rate of $120 per session and the insurer's payment of $29.30 per session. Because no fee schedule had been adopted for licensed acupuncturists, 11 NYCRR 68.5 (b) permitted reimbursement at the rate for similar procedures under an existing schedule. The provider failed to establish or raise a triable issue that its services were not similar to the chiropractic procedure used for comparison. Full payment at that rate was undisputed. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.

Reported in New York Official Reports at Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U))

[*1]
Akita Med. Acupuncture, P.C. v Clarendon Ins. Co.
2013 NY Slip Op 51860(U) [41 Misc 3d 134(A)]
Decided on November 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT


PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570792/12.
Akita Medical Acupuncture, P.C., a/a/o Jayson Rodriguez, Plaintiff-Respondent, – –

against

Clarendon Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 22, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 22, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for acupuncture services provided by its licensed acupuncturist to its assignor. The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.

Inasmuch as the Superintendent of Insurance has not adopted a fee schedule for the reimbursement of acupuncture services performed by a licensed acupuncturist, defendant properly limited payment to “charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 [2008]), specifically, the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [2009]; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]). Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate. Since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 14, 2013

Legal questions

A question 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 the insurer properly paid the licensed acupuncturist at the chiropractor acupuncture rate under 11 NYCRR 68.5(b), and since it undisputedly paid that amount in full, no further reimbursement was due.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 2
  • Appellate TermApp Term 30
  • Trial courtsTrial 12
2016, Court of Appeals: 1 decision (1 Excess shown)2019, Appellate Division: 2 decisions (2 Not established; open)2018, Appellate Term: 2 decisions (2 Not established; open)2017, Appellate Term: 3 decisions (2 Not established; open, 1 Split by charge)2016, Appellate Term: 5 decisions (2 Excess shown, 3 Split by charge)2015, Appellate Term: 6 decisions (4 Excess shown, 2 Split by charge)2014, Appellate Term: 5 decisions (3 Excess shown, 1 Not established; open, 1 Split by charge)2013, Appellate Term: 3 decisions (3 Excess shown)2012, Appellate Term: 2 decisions (1 Excess shown, 1 Not established; open)2011, Appellate Term: 1 decision (1 Excess shown)2008, Appellate Term: 2 decisions (2 Defense rejected)2006, Appellate Term: 1 decision (1 Defense rejected)2020, Trial courts: 3 decisions (2 Not established; open, 1 Defense rejected)2018, Trial courts: 3 decisions (2 Excess shown, 1 Defense rejected)2017, Trial courts: 1 decision (1 Defense rejected)2015, Trial courts: 1 decision (1 Excess shown)2014, Trial courts: 2 decisions (2 Excess shown)2013, Trial courts: 1 decision (1 Excess shown)2022, Trial courts: 1 decision (1 Excess shown)This decision
201020152020
Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category. 2 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.

  • Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211) FollowedThe insurer established that acupuncture reimbursement was properly limited to charges for similar procedures under existing fee schedules.
  • 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.

Cited by (15)

A label shows how the later decision treated this one.

  • 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)) FollowedThe insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.
  • Easy Care Acupuncture, PC v MVAIC (2017 NY Slip Op 51346(U)) FollowedA failure to deny a claim within 30 days does not preclude a defense that coverage limits have been exhausted.
  • Easy Care Acupuncture, PC v MVAIC (2016 NY Slip Op 51556(U)) FollowedMVAIC's submissions left factual issues about whether payments to another provider properly exhausted coverage for billed codes.
  • Urban Well Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50606(U)) FollowedThe insurer established fee schedule reductions for certain acupuncture claims and payment of the remaining claims under a settlement.
  • Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51300(U)) FollowedThe insurer established its fee schedule defense for CPT codes 97813 and 97814, but a factual issue remained on code 99202.
  • Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U)) FollowedThe insurer established timely denials and proper fee schedule calculations for the provider's acupuncture claims.
  • Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U))The insurer's conclusory affidavit did not establish that the billed CPT codes fell outside the acupuncture provider's specialty.
  • 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.
  • Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2015 NY Slip Op 51849(U))The insurer established its fee-schedule defense to acupuncture claims, but a triable issue remained on the initial-evaluation claim.
Show all 15 citing decisions
  • Okslen Acupuncture P.C. v Travco Ins. Co. (2014 NY Slip Op 51209(U))
  • Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. (2015 NY Slip Op 51850(U))
  • Balance Art Acupuncture P.C. v MVAIC (2022 NY Slip Op 22061)
  • Karina K. Acupuncture P.C. v State-Wide Ins. Co. (2014 NY Slip Op 51518(U))
  • Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 51623(U))

Similar decisions

  • Raz Acupuncture, P.C. v AIG Indem. Ins. Co. (2010 NY Slip Op 51177(U))An insurer may use the workers' compensation acupuncture fee schedule for chiropractors to reimburse a licensed acupuncturist.
  • AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2009 NY Slip Op 51017(U))Acupuncture services rendered by a licensed acupuncturist may be reimbursed at the workers' compensation fee schedule rate for chiropractors.
  • Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services.
  • 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.
  • 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.
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