February 25, 2015

VS Care Acupuncture v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50164(U))

https://www.beynensonlaw.com/case-law/vs-care-acupuncture-v-state-farm-mut-auto-ins-co-2015-ny-slip-op50164u/

Court: Appellate Term, First Department
Decided: February 25, 2015
Citation: 2015 NY Slip Op 50164(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 50164(U) (App Term, 1st Dept 2015)

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 failed to establish that acupuncture claims under CPT codes 97039 and 97026 were ineligible for reimbursement. The Appellate Term, First Department, modified the summary judgment order to reinstate those claims and otherwise affirmed dismissal of claims under CPT codes 97810, 97811 and 99203. The insurer established fee-schedule overcharges for the dismissed claims; the provider raised no triable issue concerning mailing or fee calculations. A denial mailed on Monday was timely because the 30-day deadline under 11 NYCRR 65-3.8 (c) fell on Saturday, applying General Construction Law § 20. For moxibustion and infrared treatment, listing codes in the physical medicine schedule did not bar reimbursement; 11 NYCRR 68.5 (b) permitted consideration of charges for similar procedures.

Reported in New York Official Reports at VS Care Acupuncture v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50164(U))

VS Care Acupuncture, a/a/o Pamela De Souza, Plaintiff-Appellant, –
against
State Farm Mutual Automobile Ins. Co. Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 30, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered September 30, 2013, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT codes 97039 and 97026; as modified, order affirmed, without costs.

Defendant’s documentary submissions established prima facie that it timely and properly denied plaintiff’s no-fault claims billed under CPT codes 97810, 97811 and 99203 on the ground that the amounts charged were in excess of the fees fixed by the applicable 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]; Great Wall Acupuncture v Geico Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial forms or the calculation of the fees. Contrary to plaintiff’s contention, defendant’s April 12, 2010 denial of plaintiff’s claim in the amount of $2,690 was timely, since the last day of the 30 calendar days within which defendant was required to pay or deny the claim (see 11 NYCRR 65-3.8[c]) fell on Saturday, April 10, 2010 (see General Construction Law § 20).

Triable issues remain, however, in connection with plaintiff’s claims billed under CPT codes 97039 (moxibustion) and 97026 (infrared treatment). The position taken by defendant’s affiant, a certified medical coder, that the above-mentioned services, although “within the scope of practice of an acupuncturist, . . cannot be considered for reimbursement” because the procedure codes billed under were listed in the workers’ compensation physical medicine fee schedule, is unpersuasive. Inasmuch as the superintendent of insurance has not adopted or established a fee schedule for reimbursement of acupuncture services performed by a licensed acupuncturist, an insurer may consider the “charges permissible for similar procedures under schedules already [*2]adopted or established by the superintendent” (11 NYCRR 68.5[b]) for purposes of determining the appropriate reimbursement rate (see Forrest Chen Acupuncture Servs., P.C. v Geico Ins. Co., 54 AD3d 996 [2008]).

Plaintiff’s remaining arguments are either unpreserved or lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: February 25, 2015

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.

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 established excess charges for CPT 97810, 97811 and 99203, but triable issues remained for moxibustion and infrared codes because the coder's position that acupuncturists could not be reimbursed under physical medicine codes was unpersuasive.

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. 3 decisions in other departments that cite or are cited by this one are on the full map.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's documentary submissions established timely and proper denial of the fee-schedule claims and the provider raised no triable issue as to the efficacy of the mailing of the denial forms.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (this one included) are in the same category.

Cited in this decision

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

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.
Great Wall Acupuncture v GEICO Gen. Ins. Co. (2007 NY Slip Op 27164) FollowedThe insurer properly reimbursed the licensed acupuncturist at chiropractor rates because similar services and licensing requirements supported them.
Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211) FollowedThe insurer established that acupuncture reimbursement was properly limited to charges for similar procedures under existing fee schedules.

Cited by

A label shows how the later decision treated this one.

Demas v State Farm Fire & Cas. Co. (2022 NY Slip Op 50250(U)) FollowedThe insurer failed to justify recoding cupping or applying a vasopneumatic-device valuation under the fee schedule.
Compas Med., P.C. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 26062) FollowedWritten accident notice mailed within 30 days satisfies the no-fault notice requirement, even if the insurer receives it later.
TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))The insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.
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.
Easy Care Acupuncture, P.C. v ELRAC, Inc. (2017 NY Slip Op 50234(U))The defendant's failure to timely and properly mail a denial precluded its excessive-fee defense to the acupuncture claims.
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

Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.
BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U))An insurer may use the workers' compensation fee schedule for acupuncture by chiropractors to reimburse a licensed acupuncturist.
Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51460(U))The insurer established full payment for CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture.
NYS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51362(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule for chiropractors.
Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))The insurer established full payment at the workers' compensation fee-schedule rate for chiropractic acupuncture.