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

SUPREME COURT OF THE STATE OF NEW YORK

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

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