July 24, 2014

Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-metropolitan-prop-cas-ins-co-2014ny-slip-op-51127u/

Court: Appellate Term, First Department
Decided: July 24, 2014
Citation: 2014 NY Slip Op 51127(U) · 44 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co., 44 Misc 3d 132(A), 2014 NY Slip Op 51127(U) (App Term, 1st Dept 2014)

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's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services. The provider sought the difference between its charges and payments made under the applicable workers' compensation fee schedule. The insurer established timely denials based on charges exceeding the permitted amount. Its claims representative's affidavit, together with fee-schedule excerpts subject to judicial notice, sufficiently proved the calculation, and the provider raised no triable issue concerning either mailing of the denials or the fees. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint in its entirety.

Reported in New York Official Reports at Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))

[*1]

Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co.

2014 NY Slip Op 51127(U) [44 Misc 3d 132(A)]

Decided on July 24, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570197/14

Healthy Way Acupuncture P.C., a/a/o Shavndre Shuler, Plaintiff-Respondent,
against
Metropolitan Property and Casualty Ins. Co., Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated October 1, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Peter H. Moulton, J.), dated October 1, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in its entirety.

The affidavits submitted by defendant in support of its motion for summary judgment established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s 2008 claims for assigned first-party no-fault benefits on the ground that the fees plaintiff charged for the acupuncture services rendered to its assignor exceeded the amount permitted by the applicable worker’s compensation fee schedule (see Great Wall Acupuncture, P.C. v Geico Gen. Ins. Co., 26 Misc 3d 23 [2009]; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004]). Contrary to plaintiff’s assertion, the affidavit submitted by defendant’s claims representative, together with excerpts of the fee schedule of which we may take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 [2009]), were sufficient to establish defendant’s proper calculation of the fees due under the schedule (see Natural Acupuncture Health, P.C. v. Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 500410[U] [App Term, 1st Dept 2011]; see also GL Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51448[U] [App Term, 2nd, 11th & 13th Jud Dists 2013]). In opposition, plaintiff failed to raise a triable issue regarding the efficacy of defendant’s mailing of the denials or the calculation of the fee. Accordingly, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the acupuncture services and payments made to plaintiff pursuant to the fee schedule – should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur.
Decision Date: July 24, 2014

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.

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 claims representative's affidavit with judicially noticeable fee schedule excerpts sufficed to establish proper calculation of the acupuncture fees, and the provider raised no triable issue, so the complaint was dismissed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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 insurer's affidavits established timely denial of the claims and the provider raised no triable issue regarding the efficacy of the mailing of the denials.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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.
Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467)An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351) FollowedJudicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.
Natural Acupuncture Health, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 50040(U)) FollowedThe insurer proved a fee-schedule defense to one provider's claims but failed to establish timely denial of another provider's claim.

Cited by

Balance Art Acupuncture P.C. v MVAIC (2022 NY Slip Op 22061)MVAIC established proper payment at chiropractic acupuncture rates, and the provider failed to show that physician rates should apply.

Similar decisions

Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 51623(U))The insurer established a proper acupuncture fee-schedule denial; a mistaken year in the notary's jurat affected no substantial right.
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))The insurer failed to establish that the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial.
Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. (2015 NY Slip Op 51850(U))The insurer proved timely mailing of fee-schedule denials through office procedures and the provider's receipt of enclosed checks.
Urban Well Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50606(U))The insurer established fee schedule reductions for certain acupuncture claims and payment of the remaining claims under a settlement.
Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U))The insurer established timely denials and proper fee schedule calculations for the provider's acupuncture claims.