June 28, 2012

Gentle Care Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51290(U))

https://www.beynensonlaw.com/case-law/gentle-care-acupuncture-p-c-v-geico-ins-co-2012-ny-slip-op51290u/

Court: Appellate Term, Second Department
Decided: June 28, 2012
Citation: 2012 NY Slip Op 51290(U) · 36 Misc 3d 131(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

Gentle Care Acupuncture, P.C. v GEICO Ins. Co., 36 Misc 3d 131(A), 2012 NY Slip Op 51290(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 proved full fee-schedule payment for earlier acupuncture claims and lack of medical necessity for later treatment. Claims employees' affidavits established timely denials and payment of the earlier services under the workers' compensation fee schedule for chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. For later services, an IME report supported by the examining acupuncturist's affidavit concluded that the assignor's injuries had resolved and further treatment was unnecessary. The provider's affidavit failed to meaningfully address or rebut those conclusions. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the acupuncture claims under review.

Reported in New York Official Reports at Gentle Care Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51290(U))

[*1]

Gentle Care Acupuncture, P.C. v GEICO Ins. Co.

2012 NY Slip Op 51290(U) [36 Misc 3d 131(A)]

Decided on June 28, 2012

Appellate Term, Second Department

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

As corrected in part through July 20, 2012; it will not be published in the printed Official Reports.

Decided on June 28, 2012

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

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-2838 K C.

Gentle Care Acupuncture, P.C. as Assignee of RITA LEVITAN, Respondent, -and-
Craigg Total Health Family Chiropractic Care, P.C. as Assignee of RITA LEVITAN, Plaintiff,
-against-
GEICO INSURANCE COMPANY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 9, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007 is granted.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of its cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007.

In support of its cross motion, defendant submitted affidavits by employees of its claims [*2]division, which were sufficient to establish that defendant had timely denied the claims of plaintiff Gentle Care Acupuncture, P.C. (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]) for dates of service June 7, 2007 through September 19, 2007, on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since defendant fully paid the amount to which plaintiff Gentle Care Acupuncture, P.C. was entitled for acupuncture services rendered from June 7, 2007 through September 19, 2007, the branches of defendant’s cross motion for summary judgment seeking to dismiss plaintiff Gentle Care Acupuncture, P.C.’s claims for these dates of service should have been granted.

Defendant also timely denied plaintiff Gentle Care Acupuncture, P.C.’s claims for acupuncture services rendered from September 24, 2007 through October 3, 2007, based upon an independent medical examination (IME) performed by defendant’s acupuncturist, who found a lack of medical necessity for further acupuncture services. The IME report, which was accompanied by the examining acupuncturist’s affidavit, concluded that the assignor’s injuries had resolved and that there was no need for further acupuncture treatment. Although plaintiff submitted, in opposition to the cross motion, an “Affidavit of Medical Necessity” of its licensed acupuncturist, that affidavit did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Gentle Care Acupuncture, P.C. v Geico Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52226[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[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]). Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from September 24, 2007 through October 3, 2007 should have been granted (see 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]).

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 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 IME report with the examiner's affidavit found the injuries resolved, and the provider's affidavit of medical necessity did not 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

Open the full map

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 fully paid the amount due under the fee schedule for acupuncture by chiropractors, so those claims were dismissed.

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

Open the full map

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 sufficient to establish that the insurer timely denied the provider's claims.

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.
Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U)) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U)) FollowedThe provider's supervising acupuncturist failed to meaningfully address or rebut the insurer's IME conclusions on 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.
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.

Cited by

American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.

Similar decisions

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.
Eastern Star Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51010(U))The insurer established full fee-schedule payment for four acupuncture claims and lack of medical necessity for a fifth.
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.
Gentle Care Acupuncture, P.C. v GEICO (2011 NY Slip Op 51121(U))An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture services to reimburse a licensed acupuncturist.
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.