October 11, 2011

Points of Health Acupuncture, P.C. v GEICO Ins. Co. (2011 NY Slip Op 51843(U))

https://www.beynensonlaw.com/case-law/points-of-health-acupuncture-p-c-v-geico-ins-co-2011-ny-slip-op51843u/

Court: Appellate Term, Second Department
Decided: October 11, 2011
Citation: 2011 NY Slip Op 51843(U) · 33 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule Medical necessity Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Points of Health Acupuncture, P.C. v GEICO Ins. Co., 33 Misc 3d 127(A), 2011 NY Slip Op 51843(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 workers' compensation fee schedule may be judicially noticed in determining reimbursement for acupuncture services. The Appellate Term, Second Department, modified the order, insofar as appealed from, denying the provider's summary judgment motion and granting the insurer's cross motion in part. Under Workers' Compensation Law § 13, 11 NYCRR 68.1 (a), and CPLR 4511 (b), the schedule was sufficiently authentic and reliable for judicial notice. Claims fully paid under the chiropractic fee schedule were dismissed; claims for services whose treatment codes the insurer changed without explanation survived. Claims denied for lack of medical necessity were dismissed because supported peer reviews went unrebutted. The provider's motion failed because it admitted timely partial payments and denials without showing the denials lacked merit as a matter of law.

Reported in New York Official Reports at Points of Health Acupuncture, P.C. v GEICO Ins. Co. (2011 NY Slip Op 51843(U))

[*1]

Points of Health Acupuncture, P.C. v GEICO Ins. Co.

2011 NY Slip Op 51843(U) [33 Misc 3d 127(A)]

Decided on October 11, 2011

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-2155 K C.

Points of Health Acupuncture, P.C. as Assignee of IGOR LUTS, Respondent,
against
GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 9, 2009. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment as to claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment as to the claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, are denied and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of dismissing the complaint as to the claims for services rendered July 18, 2006 through July 27, 2006, August 14, 2006 through August 22, 2006, August 29, 2006 through September 11, 2006, September 12, 2006 through September 25, 2006, and September 27, 2006 through October 4, 2006; as so modified, the order, insofar as appealed from, is affirmed, without costs.

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. Defendant alleged that it had properly reimbursed plaintiff for the acupuncture services it had rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services billed for herein, and that, based upon two peer [*2]review reports, it had denied reimbursement for the claims for services rendered between August 14, 2006 and September 11, 2006 due to a lack of medical necessity. By order entered July 9, 2009, insofar as appealed from, the Civil Court granted the branches of plaintiff’s motion as to the claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, because defendant did not submit the workers’ compensation fee schedule to the court, and denied defendant’s cross motion in its entirety, finding that there was a triable issue of fact as to the medical necessity of the services rendered between September 12, 2006 and October 4, 2006.

On appeal, defendant argues that its cross motion for summary judgment dismissing the complaint should have been granted. We note, at the outset, that plaintiff admitted in its motion for summary judgment that defendant had issued timely partial payments and denial of claim forms. Since plaintiff failed to demonstrate that the denials were conclusory, vague or without merit as a matter of law, plaintiff’s motion for summary judgment should have been denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

We find that the workers’ compensation fee schedule, which is mandated by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services rendered between July 18, 2006 and July 27, 2006, and between September 12, 2006 and October 4, 2006, in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule and that it had issued partial denials on that ground (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims are granted.

Defendant failed to establish why it changed the fee schedule treatment code for several of the services rendered between July 5, 2006 and July 17, 2006, and between July 28, 2006 and August 10, 2006. Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims were properly denied.

The claims for services rendered between August 14, 2006 and September 11, 2006 were denied on the ground of lack of medical necessity. In support of its cross motion, defendant annexed peer review reports, as well as affidavits executed by the acupuncturists who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusions that there was a lack of medical necessity for those services. Contrary to plaintiff’s assertion on appeal, plaintiff did not submit opposition to defendant’s cross motion, nor was there any admissible evidence in the record establishing the medical necessity of these services in order to raise an issue of fact (see CPLR 2219 [a]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims are granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [*3][App Term, 2d & 11th Jud Dists 2007]).

In light of the foregoing, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment as to the claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, are denied and defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of dismissing the complaint as to the claims for services rendered July 18, 2006 through July 27, 2006, August 14, 2006 through August 22, 2006, August 29, 2006 through September 11, 2006, September 12, 2006 through September 25, 2006, and September 27, 2006 through October 4, 2006.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011

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.

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: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's motion should have been denied because it admitted the insurer issued timely partial payments and denials and failed to show those denials were conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Lack of medical necessity

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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 insurer's peer review reports and reviewers' affidavits set forth a factual basis and medical rationale for lack of necessity, and the provider submitted no opposition, so those claims were dismissed.

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

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Excess shown for some charges, not for others

Held the insurer showed it fully paid some acupuncture claims at the judicially noticed chiropractic fee schedule rate, but failed to explain why it changed treatment codes for other dates of service, leaving those claims open.

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

Cited in this decision

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

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
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.
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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
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

A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.

Similar decisions

Z.A. Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 51842(U))The insurer established proper acupuncture reimbursement under the chiropractic fee schedule and lack of medical necessity for later services.
Essential Acupuncture Servs., P.C. v GEICO Indem. Co. (2018 NY Slip Op 51600(U))The insurer established full fee schedule payment of acupuncture claims and lack of medical necessity for other disputed services.
LVOV Acupuncture, P.C. v GEICO (2011 NY Slip Op 51844(U))The workers' compensation fee schedule may be judicially noticed when determining reimbursement for acupuncture services.
Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
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.