September 22, 2017

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51252(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-21st-century-ins-co-2017-ny-slip-op51252u/

Court: Appellate Term, Second Department
Decided: September 22, 2017
Citation: 2017 NY Slip Op 51252(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Discovery and procedure Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51252(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.

An insurer may use the chiropractors' acupuncture fee schedule to determine reimbursement for a licensed acupuncturist's services. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, upheld dismissal of claims billed under CPT codes 97810 and 97811 and rejected the provider's mailing challenge. It also upheld denial of the provider's summary judgment motion because its proof did not establish untimely denials or legally deficient timely denials. The provider failed to object to discovery within CPLR 3122 (a) and 3133 (a) and showed no demands were palpably improper or privileged, requiring disclosure. The order, insofar as appealed from, was affirmed, including the insurer's fee-schedule relief and motion to compel.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51252(U))

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

Charles Deng Acupuncture, P.C., as Assignee of Ambroisse, Cassandra, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 18, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811 and to compel disclosure.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811, and to compel disclosure.

Contrary to plaintiff’s argument on appeal, it failed to establish its prima facie entitlement to summary judgment, since the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Moreover, plaintiff’s arguments on appeal as to defendant’s proof of mailing of the denial of claim forms lack merit.

Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff failed to establish that the discovery demands served by defendant seek information which is palpably improper or privileged.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017

Legal questions (3)

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 its prima facie burden because its proof did not show the claims were not timely denied or that the timely denials were conclusory, vague or without merit.

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, 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

Upheld dismissal of the CPT 97810 and 97811 claims because an insurer may, as a matter of law, pay a licensed acupuncturist under the chiropractor acupuncture fee schedule, as the insurer had done.

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.

Proof of mailing

Open the full map

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)

Rejected the provider's challenge to the insurer's proof of mailing of the denial of claim forms as lacking merit.

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.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
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.
AVA Acupuncture, P.C. v AutoOne Ins. Co. (2010 NY Slip Op 51350(U)) FollowedThe insurer justified corporate financial discovery on fraudulent incorporation, but failed to justify the owner's personal tax and banking records.

Similar decisions

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51460(U))The insurer established full payment for CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture.
Charles Deng Acupuncture, P.C. v ELRAC, Inc. (2017 NY Slip Op 51149(U))An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture services to reimburse a licensed acupuncturist.
Charles Deng Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51887(U))The insurer established full fee-schedule payment of four acupuncture claims, but failed to obtain dismissal of two remaining claims.
Acupuncture Now, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51809(U))The insurer's summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld.
Charles Deng Acupuncture, P.C. v New S. Ins. Co. (2017 NY Slip Op 51189(U))The insurer's summary judgment dismissal was affirmed because the provider's challenges lacked merit or were first raised on appeal.