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March 1, 2019

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51042(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2019-ny-slip-op51042u/

Court
Appellate Term, Second Department
Decided
March 1, 2019
Citation
2019 NY Slip Op 51042(U)
Posture
Summary judgment
Outcome
Split result
Issues
Fee schedule
Legal questions
Proving a fee schedule defense (see the maps)
Cite as
Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51042(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 workers' compensation acupuncture fee schedule for chiropractors to determine payment to a licensed acupuncturist. The provider challenged summary judgment dismissing its assigned no-fault claims on the ground that the insurer had fully paid under that schedule. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, upheld use of the schedule but modified the order to deny dismissal of a $54.73 initial-visit claim billed under CPT code 99203 and an additional $0.63 for another service. The insurer's coder identified a $16.70 entitlement for that service, but the insurer paid $16.07. The order was otherwise affirmed.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51042(U))

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

Charles Deng Acupuncture, P.C., as Assignee of Randon Well-Fraser, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 9, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

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]). Nevertheless, plaintiff correctly argues that the record establishes that defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover upon plaintiff’s claim seeking $54.73 for services rendered on February 5, 2014 and billed under CPT code 99203 for the evaluation and management of a new patient. Likewise, defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover an additional $.63 for services rendered on February 27, 2014 because, as set forth in the affidavit defendant submitted [*2]from its certified professional coder, plaintiff was entitled to $16.70 for that date of service but defendant only paid $16.07.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 are denied.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019

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: Excess shown for some charges, not for others

Upheld the reductions of the acupuncture charges to the chiropractor rate, but held the insurer had not shown entitlement to dismissal of the new-patient visit claim or of a 63-cent shortfall its own coder conceded.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 238
  • Trial courtsTrial 39
2016, Court of Appeals: 1 decision (1 Excess shown)2022, Appellate Division: 1 decision (1 Excess shown)2020, Appellate Division: 1 decision (1 Not established; open)2019, Appellate Division: 2 decisions (1 Excess shown, 1 Defense rejected)2015, Appellate Division: 1 decision (1 Excess shown)2008, Appellate Division: 1 decision (1 Excess shown)2022, Appellate Term: 8 decisions (4 Excess shown, 2 Not established; open, 1 Defense rejected, 1 Split by charge)2021, Appellate Term: 5 decisions (1 Excess shown, 1 Not established; open, 3 Defense rejected)2020, Appellate Term: 10 decisions (6 Excess shown, 3 Not established; open, 1 Split by charge)2019, Appellate Term: 16 decisions (13 Excess shown, 2 Not established; open, 1 Split by charge)2018, Appellate Term: 10 decisions (9 Excess shown, 1 Split by charge)2017, Appellate Term: 46 decisions (26 Excess shown, 15 Not established; open, 5 Split by charge)2016, Appellate Term: 21 decisions (11 Excess shown, 7 Not established; open, 1 Defense rejected, 2 Split by charge)2015, Appellate Term: 13 decisions (10 Excess shown, 3 Not established; open)2014, Appellate Term: 13 decisions (7 Excess shown, 5 Not established; open, 1 Split by charge)2013, Appellate Term: 13 decisions (3 Excess shown, 8 Not established; open, 2 Split by charge)2012, Appellate Term: 20 decisions (15 Excess shown, 3 Not established; open, 1 Defense rejected, 1 Split by charge)2011, Appellate Term: 18 decisions (8 Excess shown, 5 Not established; open, 5 Split by charge)2010, Appellate Term: 15 decisions (7 Excess shown, 3 Not established; open, 3 Defense rejected, 2 Split by charge)2009, Appellate Term: 6 decisions (4 Excess shown, 2 Not established; open)2008, Appellate Term: 2 decisions (1 Excess shown, 1 Not established; open)2007, Appellate Term: 5 decisions (3 Excess shown, 2 Not established; open)2006, Appellate Term: 2 decisions (1 Not established; open, 1 Defense rejected)2005, Appellate Term: 5 decisions (1 Not established; open, 4 Defense rejected)2004, Appellate Term: 3 decisions (1 Not established; open, 2 Defense rejected)2003, Appellate Term: 2 decisions (2 Defense rejected)2023, Appellate Term: 1 decision (1 Excess shown)2025, Appellate Term: 1 decision (1 Not established; open)2026, Appellate Term: 3 decisions (2 Excess shown, 1 Not established; open)2022, Trial courts: 4 decisions (2 Excess shown, 2 Not established; open)2021, Trial courts: 4 decisions (1 Excess shown, 3 Not established; open)2017, Trial courts: 2 decisions (2 Excess shown)2016, Trial courts: 2 decisions (1 Excess shown, 1 Not established; open)2015, Trial courts: 1 decision (1 Not established; open)2013, Trial courts: 2 decisions (1 Not established; open, 1 Defense rejected)2012, Trial courts: 2 decisions (1 Not established; open, 1 Defense rejected)2011, Trial courts: 1 decision (1 Excess shown)2010, Trial courts: 2 decisions (1 Defense rejected, 1 Split by charge)2009, Trial courts: 2 decisions (1 Excess shown, 1 Defense rejected)2008, Trial courts: 1 decision (1 Not established; open)2007, Trial courts: 2 decisions (2 Not established; open)2006, Trial courts: 3 decisions (3 Defense rejected)2005, Trial courts: 3 decisions (2 Excess shown, 1 Not established; open)2004, Trial courts: 2 decisions (2 Defense rejected)2024, Trial courts: 1 decision (1 Defense rejected)2026, Trial courts: 3 decisions (2 Not established; open, 1 Split by charge)2018, Trial courts: 2 decisions (2 Not established; open)This decision
20052010201520202025
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, 24 (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

  • NYS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51362(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule for chiropractors.
  • BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U))An insurer may use the workers' compensation fee schedule for acupuncture by chiropractors to reimburse a licensed acupuncturist.
  • Acupuncture Now, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51154(U))An insurer may use the chiropractic acupuncture fee schedule to determine reimbursement for a licensed acupuncturist's acupuncture services.
  • Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51252(U))An insurer may use the chiropractors' acupuncture fee schedule to determine reimbursement for a licensed acupuncturist's services.
  • GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51143(U))An insurer may use the chiropractor acupuncture fee schedule to determine reimbursement for services performed by a licensed acupuncturist.
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