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December 18, 2017

Pavlova v Allstate Ins. Co. (2017 NY Slip Op 27454)

https://www.beynensonlaw.com/case-law/pavlova-v-allstate-ins-co-2017-ny-slip-op-27454/

Court
Civil Court of the City of New York, Kings County
Judge
Cohen, J.
Decided
December 18, 2017
Citation
2017 NY Slip Op 27454 · 60 Misc 3d 681
Posture
Other motion
Outcome
Insurer prevailed
Earlier history
Appeal from Pavlova v Allstate Ins. Co. (2016 NY Slip Op 26123) (Affirmed)
Issues
Provider's prima facie case Fee schedule Verification requests
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Pavlova v Allstate Ins. Co., 60 Misc 3d 681 (Civ Ct, Kings County 2017)

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.

A provider's claim billed under a "By Report" code is incomplete without the report establishing the service's value and calculation. The Civil Court, Kings County, denied renewal and reargument of the provider's summary judgment motion concerning code 20999. Under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the report was part of a completed claim form and the provider's prima facie burden; its omission did not trigger timely payment, denial or verification obligations. The court acknowledged Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., which treated missing documentation as verification under 11 NYCRR 65-3.5 (b), but adhered to its reasoning. New literature lacked justification for earlier omission, advanced a new theory and did not eliminate the report requirement.

Reported in New York Official Reports at Pavlova v Allstate Ins. Co. (2017 NY Slip Op 27454)

Pavlova v Allstate Ins. Co.
2017 NY Slip Op 27454 [60 Misc 3d 681]
December 18, 2017
Cohen, J.
Civil Court of the City of New York, Kings County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Thursday, October 18, 2018

[*1]

Ksenia Pavlova, D.O., as Assignee of Cosby Reavis, Plaintiff,
v
Allstate Insurance Company, Defendant.

Civil Court of the City of New York, Kings County, December 18, 2017

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn, for plaintiff.

Peter C. Merani, P.C., New York City, for defendant.

{**60 Misc 3d at 682} OPINION OF THE COURT

Devin P. Cohen, J.

Plaintiff’s motion to reargue its motion for summary judgment is decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff submitted a claim form and invoice to defendant for services rendered to Cosby Reavis on October 8, 2013. According to plaintiff’s claim, these services related to various codes promulgated under the Official New York Workers’ Compensation Medical Fee Schedule (the fee schedule), including code 20999, which is a “By Report” code. Defendant denied plaintiff’s claim in part because plaintiff did not bill its services in accordance with the applicable fee schedule. Plaintiff filed the instant action and both parties moved for summary judgment.

[*2]

With specific regard to plaintiff’s motion to reargue, this court denied plaintiff’s motion for summary judgment with respect to plaintiff’s claim for payment under code 20999 (52 Misc 3d 491 [2016]). The court reasoned that, because code 20999 is a “By Report” code, plaintiff was required to submit certain information about the services provided in order to establish a proper billing rate as part of its prima facie case. Plaintiff did not provide this information, and consequently, plaintiff did not meet its initial burden of proof on summary judgment.

Plaintiff now moves to renew and reargue its motion for summary judgment. A motion for leave to renew is addressed to the court’s sound discretion and can be granted only if it is shown that there are new facts, although in existence at the time the original motion was made, that were unknown to the movant and therefore were not brought to the court’s attention (Semenov v Semenov, 98 AD3d 962, 963 [2d Dept 2012]). To the extent the facts are new, plaintiff must offer a reasonable justification for its failure to present such facts on the prior motion (id.).

A motion to reargue must show that there was a point of law or fact that was overlooked in the prior motion, and cannot be based on arguments different from those originally stated in the prior motion (NYCTL 1998-1 Trust v Rodriguez, 154 AD3d 865, 865 [2d Dept 2017]; Rodriguez v Gutierrez, 138 AD3d 964, 966-967 [2d Dept 2016]).

Plaintiff argues that “academic literature” dictates that dry needling is commonly billed under code 20999, and attaches this “literature” to its motion to renew and reargue. As an{**60 Misc 3d at 683} initial matter, plaintiff does not explain why it did not offer this “literature” in support of its underlying motion for summary judgment, and so it cannot be considered for the motion to renew (Semenov, 98 AD3d at 963). Likewise, the court cannot consider this “literature” as part of the motion to reargue, as it is a new theory not advanced in the underlying motion (NYCTL 1998-1, 154 AD3d at 865; Rodriguez, 138 AD3d at 966-967).

Even if this court were to consider this “literature,” plaintiff provides no reason why the court should give it any weight or deference. The referenced document is titled “Local Coverage Determination (LCD): Pain Management (L33622).” Plaintiff offers no explanation about who authored the document, who uses this document, how it is used, or the weight, if any, the medical community gives the document. All this said, the document makes a passing statement that dry needling should be billed under code 20999. Even assuming this were true, it would not change the “By Report” designation in the fee schedule, which requires a medical provider to submit a report with its bill to establish the proper billing rate.

Additionally, plaintiff argues that this court incorrectly interpreted plaintiff’s prima facie burden as established by Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (25 NY3d 498, 507 [2015]). Plaintiff argues that Viviane Etienne holds that plaintiff’s prima facie burden is limited only to proving timely submission of a claim form, and that payment is overdue. In its underlying decision in this action, this court explained that, in order to determine the appropriate monetary value of services designated “By Report,” the Official New York Workers’ Compensation Medical Fee Schedule directs the medical provider to provide certain information to justify its billing. These documents and information (i.e., the “report”) are part of the “completed claim form” (see Viviane Etienne, 25 NY3d at 507), and thus part of plaintiff’s prima facie burden, so that defendant has sufficient notice of the services being billed in order to make a proper decision on the claim. Plaintiff does not argue that the court [*3]overlooked or misunderstood a point of law. Instead, plaintiff simply disagrees with the court’s reasoning.

After plaintiff filed the instant motion, the Appellate Term issued its decision in Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). {**60 Misc 3d at 684}In Bronx Acupuncture, the plaintiff medical provider sought payment for services submitted under a “By Report” code. The defendant insurance company denied the claim because the plaintiff did not provide certain documentation. The appellate court treated the documentation as a request for additional documentation, and held that defendant’s denial was not proper because it did not request the documentation in accordance with 11 NYCRR 65-3.5 (b) (Bronx Acupuncture, 57 Misc 3d 145[A], 2017 NY Slip Op 51452[U], *1).

That said, the specific legal issue confronted in this action is whether the “report” in a “By Report” claim is an additional form of documentation or verification, as is generally the case when a carrier requests copies of medical records, or subsequent letters of medical necessity, or rather, in this unique circumstance, whether the “report” in a claim billed “By Report” is actually an integral part of the bill or claim form, and so whether it must be included in order to constitute a “completed claim form.” If it is the latter, then it would be an element of plaintiff’s prima facie burden to produce such a “completed claim form,” under Viviane Etienne. It would not constitute a separate, new element of the prima facie burden.

I acknowledge, support, and endeavor to follow the principles laid out in Viviane Etienne. Further, I am mindful of the Appellate Term’s decision in Bronx Acupuncture and its potential implication in this case. That said, I find that it is definitional to the submission of any claim that the claim form must be complete, and that to satisfy the prima facie burden laid out in Viviane Etienne, completed claim forms must provide the necessary data to identify both the value of the claim and the basis for calculating that value. It is the satisfaction of this prima facie threshold that shifts the burden to the insurer to pay or deny the claim, or to demand further verification, within the times specified in the regulations. Alone in the applicable fee schedule, the “By Report” code provides no inherent value. The code is a wild card which invites the provider to name the value of the claim and to explain, in narrative form, the basis of calculation for that value. Without the report, the “By Report” code is not reduced to a defined service with a calculated value, and the insurer has no basis to either pay or deny the associated claim. For these reasons, I find that the report is a necessary component of the bill for a “By Report” claim. Its absence renders the claim form incomplete, fails to satisfy the prima facie requirements laid out in Viviane Etienne{**60 Misc 3d at 685}, and so fails to trigger the insurer’s obligation to timely pay or deny the claim.

For the foregoing reasons, plaintiff’s motion to renew and reargue is denied.

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.

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 for another reason (eligibility, timely submission, own papers defeat the claim)

Held that for a By Report code the report is part of a completed claim form, so the provider that billed without it failed its prima facie burden and the insurer's time to pay or deny never began.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 19 (this one included) are in the same category.

Cited in this decision

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

  • Pavlova v Allstate Ins. Co. (2016 NY Slip Op 26123) AffirmedA provider's prima facie case for a "By Report" claim includes the fee schedule information needed to value the services.
  • Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
  • Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2017 NY Slip Op 51452(U)) DistinguishedAn insurer must request missing documentation for a By Report claim before denying it for lack of that documentation.

Similar decisions

  • East Coast Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 26042)A fee schedule defense for services rendered after April 1, 2013 is not precluded by a denial issued beyond 30 days.
  • Boai Zhong Yi Acupuncture Servs. P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 26485)A medical-necessity denial must state its factual basis and medical rationale; merely referring to a peer review or IME report is insufficient.
  • A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2006 NY Slip Op 26133)A timely medical-necessity denial must state a sufficiently particular factual basis and medical rationale to avoid preclusion.
  • Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 21039)The provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation.
  • A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51415(U))A peer review submitted on summary judgment cannot cure a medical-necessity denial lacking specific facts and medical rationale.
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