June 27, 2016

TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))

https://www.beynensonlaw.com/case-law/tc-acupuncture-p-c-v-tri-state-consumer-ins-co-2016-ny-slip-op50978u/

Court: Appellate Term, First Department
Decided: June 27, 2016
Citation: 2016 NY Slip Op 50978(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Medical necessity Fee schedule
Legal questions: Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2016 NY Slip Op 50978(U) (App Term, 1st Dept 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's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright. The Appellate Term, First Department, modified the summary judgment order by reinstating claims for services from July 1 through July 8, 2010, and otherwise affirmed. Dismissal of claims for July 12 through August 31, 2010, stood because the IME report supplied a medical rationale against further treatment. Counsel's affirmation without medical evidence and the assignor's subjective pain complaints did not raise a triable issue. For the earlier services, partial fee-schedule payments were proper, but the court rejected the licensing objection to CPT 97039 and found insufficient proof that outright denials complied with Physical Medicine Ground Rule 11.

Reported in New York Official Reports at TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))

TC Acupuncture, P.C., a/a/o Yvette Dessin, Plaintiff-Appellant,
against
Tri-State Consumer Ins. Co. Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered August 7, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered August 7, 2013, modified by reinstating plaintiff’s claims for first-party no-fault benefits for services rendered July 1, 2010 through July 8, 2010; as modified, order affirmed, with $10 costs.

Defendant made a prima facie showing of entitlement to partial summary judgment dismissing plaintiff’s no-fault claims for services rendered July 12, 2010 through August 31, 2010, by demonstrating that it timely and properly denied the claims based on the June 17, 2010 independent medical examination (IME) report of its examining doctor, which set forth a sufficient basis and medical rationale for the conclusion that there was no need for further acupuncture treatment (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 [2016]). Plaintiff’s opposition consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof was insufficient to raise a triable issue as to medical necessity (see Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 143[A], 2012 NY Slip Op 50102[U][App Term, 1st Dept. 2012]). The assignor’s subjective complaints of pain cannot overcome the objective medical tests detailed in the affirmed report of defendant’s examining doctor (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]).

Triable issues remain, however, in connection with plaintiff’s claims for services rendered July 1, 2010 through July 8, 2010. While the record reflects that defendant properly paid a portion of the submitted claims pursuant to the workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]), triable issues remain with respect to the claims denied outright by defendant. Defendant’s position that the charges billed under CPT Code 97039 are not reimbursable because plaintiff is not licensed to provide physical medicine modalities is unpersuasive (see Forrest Chen Acupuncture Servs. P.C. v GEICO Ins. Co., 54 AD3d 996 [2008]; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept. 2014]; Sunrise Acupuncture PC v Tri-State Consumer [*2]Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435[U][App Term, 1st Dept. 2014]), and defendant’s submissions were insufficient to demonstrate prima facie that the claims were properly denied in accordance with Physical Medicine Ground Rule 11.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 27, 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.

Lack of medical necessity

Open the full map

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 IME report set forth a sufficient basis and medical rationale for no further acupuncture, and an attorney's affirmation without medical evidence failed to raise a triable issue, so the later 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 73 decisions on this question in the First Department courts and the Court of Appeals, 29 (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.

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 properly paid part of the claims under the fee schedule, but its licensing objection to CPT 97039 was unpersuasive and its proof did not show the Ground Rule 11 denials were proper, leaving triable issues.

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

Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 7 (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.

AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C. (2016 NY Slip Op 00916) FollowedThe provider's affidavits and medical records raised a triable issue of medical necessity despite the insurer's prima facie showing.
Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U)) FollowedThe provider's opposition lacked medical evidence or other competent proof to rebut the insurer's medical-necessity showing.
Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U)) FollowedThe insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture.
Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211)The insurer established that acupuncture reimbursement was properly limited to charges for similar procedures under existing fee schedules.
VS Care Acupuncture v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50164(U))The insurer failed to establish that acupuncture claims under CPT codes 97039 and 97026 were ineligible for reimbursement.
Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U))The insurer's conclusory affidavit did not establish that the billed CPT codes fell outside the acupuncture provider's specialty.

Cited by

A label shows how the later decision treated this one.

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U)) FollowedThe insurer's IME report established that further acupuncture treatment was not medically necessary.
Jamaica Chiropractic PT PLLC v MVAIC (2024 NY Slip Op 50614(U)) FollowedMVAIC's IME report established lack of medical necessity, and the provider's opposition supplied no competent medical proof.
Easy Care Acupuncture, PC v MVAIC (2017 NY Slip Op 51346(U)) FollowedA failure to deny a claim within 30 days does not preclude a defense that coverage limits have been exhausted.
Omega 18 Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50235(U))The insurer's affirmed peer review established that the prescribed medical supplies were unnecessary or redundant.
Easy Care Acupuncture, PC v MVAIC (2016 NY Slip Op 51556(U))MVAIC's submissions left factual issues about whether payments to another provider properly exhausted coverage for billed codes.
Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51170(U))The insurer failed to establish that services billed under CPT code 97039 were nonreimbursable as outside the provider's specialty.

Similar decisions

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50706(U))The insurer lacked expert fee-schedule proof, and the provider's treating acupuncturist raised a factual issue on medical necessity.
Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2015 NY Slip Op 51849(U))The insurer established its fee-schedule defense to acupuncture claims, but a triable issue remained on the initial-evaluation claim.
Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.
OS Tigris Acupuncture, P.C. v Liberty Mut. Insurance Co. (2008 NY Slip Op 51996(U))The insurer's unsworn chiropractor's report failed to raise a triable medical-necessity issue, and its fee-schedule defense lacked competent proof.
Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 50119(U))The insurer established full payment under the workers' compensation fee schedules and lack of medical necessity for later acupuncture services.