May 14, 2012

Eastern Star Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51010(U))

https://www.beynensonlaw.com/case-law/eastern-star-acupuncture-p-c-v-geico-ins-co-2012-ny-slip-op51010u/

Court: Appellate Term, Second Department
Decided: May 14, 2012
Citation: 2012 NY Slip Op 51010(U) · 35 Misc 3d 145(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Medical necessity
Legal questions: Lack of medical necessity · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Eastern Star Acupuncture, P.C. v GEICO Ins. Co., 35 Misc 3d 145(A), 2012 NY Slip Op 51010(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 fee-schedule payment for four acupuncture claims and lack of medical necessity for a fifth. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. Claims employees' affidavits established timely mailing of the denials and proper use of the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The insurer had paid the allowable amounts on the second through fifth causes of action before suit. A sworn peer review supported denial of the first cause of action, and the treating acupuncturist's affidavit failed meaningfully to address or rebut its conclusions.

Reported in New York Official Reports at Eastern Star Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51010(U))

[*1]

Eastern Star Acupuncture, P.C. v GEICO Ins. Co.

2012 NY Slip Op 51010(U) [35 Misc 3d 145(A)]

Decided on May 14, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2012

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1971 K C.

Eastern Star Acupuncture, P.C. as Assignee of JESUS MENA, Respondent, —
against
GEICO Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted affidavits from its claims division employees which sufficiently established that the claim denial forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavits further established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services underlying the second through fifth causes of action (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant, prior to the commencement of this action, had paid plaintiff the full amount to which plaintiff was entitled for these causes of action, the branches of defendant’s cross motion seeking summary judgment dismissing these causes of action should have been granted.

Furthermore, defendant denied the bill underlying plaintiff’s first cause of action based upon a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services provided (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). In opposition to the branch of the cross motion seeking to dismiss this cause of action, plaintiff submitted an affidavit from its licensed acupuncturist which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action should also have been granted (see A. Khodadadi Radiology, P.C., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2012

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.

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 sworn peer review set forth a factual basis and medical rationale, and the provider's acupuncturist's affidavit failed to meaningfully refer to or rebut it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

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

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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 used the fee schedule for acupuncture by chiropractors and had undisputedly paid the full amount due before suit.

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

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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)

Held the claims-division employees' affidavits sufficiently established timely mailing of the claim denial forms.

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.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.

Similar decisions

Gentle Care Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51290(U))The insurer proved full fee-schedule payment for earlier acupuncture claims and lack of medical necessity for later treatment.
Megacure Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51291(U))The insurer proved full fee-schedule payment for earlier acupuncture services and lack of medical necessity for later services.
Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51772(U))The insurer established timely denials, full fee-schedule payment for certain acupuncture services and lack of necessity for the remaining services.
MIA Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 51899(U))The insurer established timely denials, proper fee schedule reductions, and lack of medical necessity for the remaining 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.