September 13, 2013

Flushing Traditional Acupuncture, P.C. v Geico Ins. Co. (2013 NY Slip Op 51538(U))

https://www.beynensonlaw.com/case-law/flushing-traditional-acupuncture-p-c-v-geico-ins-co-2013-ny-slip-op51538u/

Court: Appellate Term, Second Department
Decided: September 13, 2013
Citation: 2013 NY Slip Op 51538(U) · 40 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense (see the maps)

Cite as

Flushing Traditional Acupuncture, P.C. v Geico Ins. Co., 40 Misc 3d 142(A), 2013 NY Slip Op 51538(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 proper fee-schedule reimbursement for codes 97813 and 97814 but failed to address the evaluation billed under code 99202. Its claims employee's affidavit showed proper use of the workers' compensation fee schedule for acupuncture services performed by chiropractors. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion as to the initial-evaluation claim and otherwise affirmed dismissal of the acupuncture claims and denial of the provider's motion. The provider's affidavit did not establish that the evaluation claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. Neither side therefore obtained summary judgment on the initial-evaluation claim.

Reported in New York Official Reports at Flushing Traditional Acupuncture, P.C. v Geico Ins. Co. (2013 NY Slip Op 51538(U))

[*1]

Flushing Traditional Acupuncture, P.C. v Geico Ins. Co.

2013 NY Slip Op 51538(U) [40 Misc 3d 142(A)]

Decided on September 13, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2013

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2023 K C.

Flushing Traditional Acupuncture, P.C. as Assignee of VYACHESLAV OVRUTSKY, Appellant, —
against
Geico Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered June 8, 2011. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 for an “initial evaluation,” which was billed under code 99202, is 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 of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, the affidavit of defendant’s claims division employee 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 that were billed under codes 97813 and 97814 (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those services. However, as defendant failed to address an “initial evaluation,” which had been billed under code 99202, defendant should not have been awarded summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 that was billed under that code.

However, plaintiff was not entitled to summary judgment on that claim, as the affidavit submitted in support of plaintiff’s motion failed to establish that the claim form in question had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). [*2]

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 for an “initial evaluation,” which was billed under code 99202, is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 2013

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.

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 not entitled to summary judgment on the initial-evaluation claim because its affidavit did not show the claim was not timely denied or that a timely denial was 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 1,063 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

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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

Held the insurer properly applied the chiropractor acupuncture schedule to codes 97813 and 97814, but, having failed to address the initial evaluation billed under 99202, it was not entitled to dismissal of that charge.

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.
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.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.

Similar decisions

WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))The insurer established full payment under the chiropractic acupuncture fee schedule except for the initial visit claim.
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.
Ying E. Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51805(U))The insurer established timely denials and proper use of the chiropractic acupuncture fee schedule, defeating the provider's summary judgment.
Shara Acupuncture, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51731(U))The insurer proved full fee-schedule payment for acupuncture codes 97810 and 97811 but failed to address the initial evaluation under code 99203.
Oleg’s Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51863(U))The insurer established full payment under the chiropractic acupuncture fee schedule for services billed under CPT codes 97813 and 97814.