September 19, 2016

Sama Physical Therapy, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51359(U))

https://www.beynensonlaw.com/case-law/sama-physical-therapy-p-c-v-american-tr-ins-co-2016-ny-slip-op51359u/

Court: Appellate Term, Second Department
Decided: September 19, 2016
Citation: 2016 NY Slip Op 51359(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Contrasted (cf., but see) in 1 and followed in 3 later decisions (see Cited by)
Issues: Fee schedule Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense (see the maps)

Cite as

Sama Physical Therapy, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51359(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 proper recoding of physical therapy services but failed to justify Ground Rule 11 reductions on three claims. Its proof supported changing CPT code 97799 to 97140, and the provider raised no coding issue of fact. The insurer did not establish that Ground Rule 11's daily reimbursement limit applied to the first through third causes of action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of those causes, while affirming reductions on the fifth and sixth causes. Medical necessity remained triable on the fourth through sixth causes. The provider's summary judgment motion remained denied because its affidavit did not establish untimely denials or timely denials that were conclusory, vague, or meritless as a matter of law.

Reported in New York Official Reports at Sama Physical Therapy, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51359(U))

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

Sama Physical Therapy, P.C., as Assignee of WILLIAM VOLQUEZ, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 4, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action and so much of the fifth and sixth causes of action as sought to recover in excess of “the proper No-Fault rate” of $32.57 for each of the claims underlying those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied; 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. The Civil Court denied plaintiff’s motion and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through third causes of action. In denying the branches of defendant’s cross motion seeking summary judgment dismissing the fourth through sixth causes of action, the court stated that “the claims are hereby adjusted to reflect the proper No Fault rate of $315.10,” but found that there was a triable issue of fact with respect to the medical necessity of the services billed for. This adjustment reflects a reduction of the claims underlying the fifth and sixth causes of action from $66.10 to $32.57; the fourth cause of action was not affected.

Plaintiff argues that the Civil Court should not have granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action, and, in effect, that the court should not have reduced the amount recoverable upon the fifth and sixth causes of action, because defendant did not demonstrate that plaintiff had not billed in accordance with the fee schedule. Plaintiff also argues that its motion for summary judgment should have been granted.

For the claims underlying the first through third, fifth and sixth causes of action, defendant demonstrated that it had changed CPT code 97799 to CPT code 97140 and reduced the amount due in accordance with that change. (It is noted that plaintiff did not bill under CPT code 97799 on the claim form underlying the fourth cause of action.) For the claims underlying the [*2]first through third causes of action, defendant applied Ground Rule 11, which states, “When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less.”

Contrary to plaintiff’s argument, defendant’s submissions were sufficient to demonstrate, prima facie, that it had properly applied CPT code 97140 to the services that had been billed under CPT code 97799, and plaintiff failed to raise a triable issue of fact with respect to the coding. However, plaintiff correctly argues that defendant did not demonstrate that Ground Rule 11 was appropriately applied to the services underlying the first through third causes of action.

Thus, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied. The Civil Court properly reduced the amounts recoverable under the fifth and sixth causes of action, and plaintiff’s arguments on appeal with respect to defendant’s cross motion are not relevant to the fourth cause of action.

Contrary to plaintiff’s final contention, it failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 19, 2016

Legal questions (2)

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 affidavit failed to show the claims had not been timely denied or that the timely denials were conclusory, vague or without merit, so its summary judgment motion was properly denied.

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.

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: Excess shown for some charges, not for others

Held the insurer properly recoded CPT 97799 as 97140 and reduced those charges, but failed to show Ground Rule 11's eight-unit cap was properly applied to the first three causes of action.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followedDistinguished or limited

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. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

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.
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.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by (11)

A label shows how the later decision treated this one.

Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50200(U)) Contrasted (cf., but see)MVAIC failed to establish exhaustion or proper fee schedule payment, and claim-submission timeliness remained disputed.
Spineisland for Chiropractic, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50598(U)) FollowedThe insurer's fee-schedule motion for summary judgment on claims billed under CPT code 95831 was granted and affirmed.
K.O. Med., P.C. v Mercury Cas. Co. (2017 NY Slip Op 51158(U)) FollowedThe insurer failed to establish proper mailing of IME notices or appropriate application of Ground Rule 11 to the disputed claims.
AVM Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51708(U)) FollowedThe insurer proved full fee schedule payment of three claims but failed to justify Ground Rule reductions of seven others.
Jaga Med. Servs., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50954(U))The insurer proved proper fee-schedule reductions and lack of medical necessity, and the provider failed to rebut the peer review.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50946(U))The insurer proved outstanding verification and proper fee-schedule reductions; a challenge to mailing of payment was unpreserved.
Quality Comprehensive Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 51734(U))The insurer proved a fee-schedule limit of $425.88 per claim but failed to establish lack of medical necessity.
Demas v State Farm Fire & Cas. Co. (2022 NY Slip Op 50250(U))The insurer failed to justify recoding cupping or applying a vasopneumatic-device valuation under the fee schedule.
2 & 9 Acupuncture, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50599(U))The insurer's summary judgment motion was denied on appeal as to unpaid services billed under CPT codes 97026 and 97016.
Pro-Align Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50341(U))The insurer's coding evidence established full payment under the fee schedule for the provider's pain fiber nerve conduction studies.

Show all 11 citing decisions

LVOV Acupuncture, P.C. v Nationwide Ins. Co. (2020 NY Slip Op 51339(U))

Similar decisions

Sama Physical Therapy, P.C. v Global Liberty Ins. (2017 NY Slip Op 51736(U))The insurer failed to prove timely IME notices, and the provider failed to establish entitlement to judgment on its claims.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient.
Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U))The insurer failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims.
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.