November 13, 2020

Live In Grace Acupuncture, P.C. v GEICO Gen. Ins. Co. (2020 NY Slip Op 51360(U))

https://www.beynensonlaw.com/case-law/live-in-grace-acupuncture-p-c-v-geico-gen-ins-co-2020-ny-slip-op51360u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51360(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Live In Grace Acupuncture, P.C. v GEICO Gen. Ins. Co., 2020 NY Slip Op 51360(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 full fee-schedule payment for acupuncture services billed under CPT codes 97813 and 97814. The disputed services were rendered after April 1, 2013, and the record showed full payment under the workers' compensation fee schedule. Applying 11 NYCRR 65-3.8 (g) (1) (ii) and (2), the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion to dismiss all claims billed under those codes. It also denied the branch of the provider's motion seeking summary judgment on those coded claims for the one assignor as to whom summary judgment had been granted below.

Reported in New York Official Reports at Live In Grace Acupuncture, P.C. v GEICO Gen. Ins. Co. (2020 NY Slip Op 51360(U))

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

Live In Grace Acupuncture, P.C., as Assignee of Noemi Oyala and Gianina Valentine, Respondent,
against
GEICO General Ins. Co., Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered August 24, 2018. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered August 24, 2018 as denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff’s motion seeking summary judgment [*2]upon those claims with respect to assignor Noemi Oyala.

The branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 was based upon the defense that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The record establishes that defendant demonstrated that it had fully paid plaintiff in accordance with the workers’ compensation fee schedule for the services billed under CPT codes 97813 and 97814 for acupuncture services that plaintiff had rendered after April 1, 2013. As a result, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 should have been granted (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]; Jing Luo Acupuncture, P.C. v NY City Tr.Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

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 proved the billed amount exceeded the applicable fee schedule

Held the insurer demonstrated it had fully paid the acupuncture services billed under CPT codes 97813 and 97814, rendered after April 1, 2013, in accordance with the workers' compensation fee schedule.

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

Cited in this decision

A label shows how this decision treated the case it cites.

Jing Luo Acupuncture, P.C. v NY City Tr. Auth. (2018 NY Slip Op 51083(U)) FollowedA fee schedule defense is not precluded by an untimely denial for services governed by 11 NYCRR 65-3.8 (g).
Oleg’s Acupuncture, P.C. v Hereford Ins. Co. (2018 NY Slip Op 50095(U)) FollowedAn insurer need not issue a timely denial to preserve a fee-schedule defense for services rendered on or after April 1, 2013.

Similar decisions

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.
Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51643(U))The insurer established full payment of CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture.
Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51803(U))The insurer established full fee schedule payment for the appealed acupuncture services and untimely submission of two other claims.
UGP Acupuncture, P.C. v GEICO Ins. Co. (2022 NY Slip Op 50610(U))The provider's affidavit failed to rebut the insurer's prima facie showing that the disputed services lacked medical necessity.
Olga Bard Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51292(U))The insurer established that it had fully paid the disputed acupuncture claims under the workers' compensation fee schedule.