November 29, 2018

Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-pc-v-global-liberty-ins-co-of-n-y-2018-ny-slip-op51709u/

Court: Appellate Term, First Department
Decided: November 29, 2018
Citation: 2018 NY Slip Op 51709(U) · 61 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y., 61 Misc 3d 147(A), 2018 NY Slip Op 51709(U) (App Term, 1st Dept 2018)

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 contradictory submissions raised factual issues about timely and proper fee-schedule denials. In an action for assigned no-fault benefits, the insurer appealed the partial denial of its motion for summary judgment dismissing the complaint. Its submissions conflicted about both the amounts purportedly paid on the claims and the timing of those payments. Those conflicts created, rather than eliminated, triable issues as to whether the claims were denied in accordance with the applicable fee schedules. The Appellate Term, First Department, affirmed the order, insofar as appealed from, leaving the challenged claims pending.

Reported in New York Official Reports at Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))

[*1]

Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y.

2018 NY Slip Op 51709(U) [61 Misc 3d 147(A)]

Decided on November 29, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570381/18

Healthy Way Acupuncture PC, a/a/o Awilda Santiago, Plaintiff-Respondent,
against
Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered June 1, 2018, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered June 1, 2018, insofar as appealed, affirmed, with $10 costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. Defendant’s conflicting and contradictory submissions, regarding the amount it purportedly paid on the claims and when, create rather than eliminate triable issues as to whether the claims were timely and properly denied in accordance with the applicable fee schedules (see Lotus Acupuncture PC v Hereford Ins. Co., 58 Misc 3d 148[A], 2018 NY Slip Op 50057[U] [App Term 1st Dept 2018]; Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 29, 2018

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.

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's proof did not establish the excess as a matter of law; question left for trial

Held summary judgment unavailable because the insurer's conflicting submissions on what it paid and when raised triable issues as to whether the claims were properly denied under the applicable fee schedules.

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

Cited in this decision

Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U))The insurer's summary judgment motion on its fee-schedule defense was denied because its proof did not establish excessive charges.
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.
Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))The provider's cross motion failed because factual issues remained over billing rates applicable to its apparent surgical facility status.

Similar decisions

Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services.
Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51828(U))The insurer's follow-up verification requests were proper, supporting dismissal of the provider's no-fault action as premature.
Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))The insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors.
Master Cheng Acupuncture, P.C. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 51371(U))The insurer proved proper fee-schedule payments, but a factual dispute remained over medical necessity of a separate service claim.