August 31, 2012

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51705(U))

https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-geico-gen-ins-co-2012-ny-slipop-51705u/

Court: Appellate Term, Second Department
Decided: August 31, 2012
Citation: 2012 NY Slip Op 51705(U) · 36 Misc 3d 152(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 36 Misc 3d 152(A), 2012 NY Slip Op 51705(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 diagnostic-interview claim presented a factual issue, while unrebutted peer review proof established lack of necessity for three other services. The insurer's affidavit established timely mailing of a denial based on lack of medical necessity. The Appellate Term, Second Department, reversed the judgment and vacated summary judgment dismissing the claim billed under procedure code 90801, denying that branch of the insurer's cross motion because a factual issue remained. Dismissal of the claims for the other three services stood: the psychologist's sworn peer review report supplied a factual basis and medical rationale that the provider did not rebut. The denial of the provider's summary judgment motion remained undisturbed.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51705(U))

[*1]

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co.

2012 NY Slip Op 51705(U) [36 Misc 3d 152(A)]

Decided on August 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3065 K C.

Five Boro Psychological Services, P.C. as Assignee of ALEXANDER MAYER, Appellant, —
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 30, 2010, deemed from a judgment of the same court entered August 23, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 30, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered April 30, 2010 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v [*2]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]), which denied plaintiff’s claim on the ground of lack of medical necessity.

As to the $194.58 billed for a diagnostic interview (procedure code 90801), we find that there is an issue of fact and that, therefore, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $194.58 for procedure code 90801 should have been denied.

As to the remaining three services at issue, defendant submitted a sworn peer review report which set forth a factual basis and a medical rationale for the psychologist’s determination that there was a lack of medical necessity for these
services. Since defendant’s prima facie showing as to these three services was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover for these services (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]). Plaintiff’s remaining contentions on appeal as to these services lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, we leave undisturbed so much of the order as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover for these services.

Accordingly, the judgment is reversed, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon plaintiff’s claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

Legal questions (2)

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

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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 for lack of necessity of three services and, unrebutted, entitled the insurer to judgment on them, while an issue of fact remained on the diagnostic interview.

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.

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)

Rejected the provider's appellate argument and held the insurer's affidavit established timely mailing of the denial of claim form.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
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.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U))The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.

Similar decisions

Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))The insurer established that one claim was premature for unanswered verification and two others lacked medical necessity.
Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U))The insurer's unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim.
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation.
Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50753(U))The insurer's affidavits established timely mailing of EUO scheduling letters and the denial, and the provider's failure to attend either EUO. In the assigned no-fault benefits action, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50307(U))The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline.