October 12, 2011

Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361)

https://www.beynensonlaw.com/case-law/fine-healing-acupuncture-p-c-v-country-wide-ins-co-2011-ny-slip-op-21361/

Court: Appellate Term, Second Department
Decided: October 12, 2011
Citation: 2011 NY Slip Op 21361 · 33 Misc 3d 55
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co., 33 Misc 3d 55 (App Term, 2d Dept 2011)

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's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty. The insurer relied on a neurologist's IME finding no need for further acupuncture, and the Civil Court denied the provider's motion while granting the insurer's cross motion for summary judgment. Deferring to an Insurance Department opinion letter, the Appellate Term rejected the provider's specialty objection. The IME supplied a factual basis and medical rationale, but the treating acupuncturist's affidavit raised a triable issue concerning necessity. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer's cross motion, and denied that cross motion.

Reported in New York Official Reports at Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361)

Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co.

2011 NY Slip Op 21361 [33 Misc 3d 55]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

[*1]

Fine Healing Acupuncture, P.C., as Assignee of John Miller, Appellant,
v
Country-Wide Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, October 12, 2011

APPEARANCES OF COUNSEL

The Law Offices of Eva Gaspari, PLLC, New York City (Eva Gaspari of counsel), for appellant.

{**33 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, claiming that it had timely denied reimbursement for the acupuncture services in question based on an independent medical examination by its neurologist, who had found a lack of medical necessity for further treatment. The Civil Court, finding that plaintiff had failed to raise a triable issue of fact, denied plaintiff’s motion and granted defendant’s cross motion. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although plaintiff contends that defendant’s neurologist was not competent to give an opinion on the medical necessity of the acupuncture services rendered, we note that the Insurance Department has stated in an opinion letter, to which we must accord great deference (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; see also Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co., 30 Misc 3d 90 [App [*2]Term, 2d, 11th & 13th Jud Dists 2011]), that there is no requirement that a claim denial be based upon a medical examination conducted by a health provider of the same specialty area as the treating provider (see 2004 Ops Gen Counsel NY Ins Dept No. 04-03-10 [Mar. 2004]). As there was a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the acupuncture services provided to plaintiff’s assignor (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]), the burden shifted to plaintiff{**33 Misc 3d at 57} to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]).

Upon a review of the record, we find that the affidavit of plaintiff’s treating acupuncturist was sufficient to raise a triable issue of fact as to whether the acupuncture services rendered to plaintiff’s assignor were medically necessary (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Dists 2010]). Accordingly, the judgment dismissing plaintiff’s complaint is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

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.

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held the neurologist's IME supplied a factual basis and medical rationale shifting the burden, notwithstanding his different specialty, but the treating acupuncturist's affidavit raised a triable issue, so the insurer's cross motion was denied.

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, 94 (this one included) are in the same category.

Cited in this decision

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

LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 02481)No-fault attorney fees are calculated on the aggregate bills for each insured, and an untimely denial does not defeat interest tolling.
Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2011 NY Slip Op 21010)A psychologist may conduct IMEs of assignors who received psychological treatment under the mandatory no-fault endorsement.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The 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))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))The insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U))The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U)) FollowedThe insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.

Cited by

A label shows how the later decision treated this one.

Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51815(U)) FollowedThe insurer's medical-necessity defense failed at trial because its peer-review doctor's testimony was found not credible.
AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C. (2016 NY Slip Op 00916)The provider's affidavits and medical records raised a triable issue of medical necessity despite the insurer's prima facie showing.

Similar decisions

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50706(U))The insurer lacked expert fee-schedule proof, and the provider's treating acupuncturist raised a factual issue on medical necessity.
Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.
W.H.O. Acupuncture, P.C. v National Cont. Ins. Co. (2011 NY Slip Op 52370(U))The insurer established fee-schedule payment for earlier acupuncture services, and the provider's medical-necessity argument was unpreserved.
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.
SMB Med., PC v Federal Ins. Co. (2015 NY Slip Op 50895(U))The insurer's IME report established that further acupuncture was unnecessary, and the provider's medical report did not address acupuncture.