July 12, 2012

W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co. (2012 NY Slip Op 51335(U))

https://www.beynensonlaw.com/case-law/w-h-o-acupuncture-p-c-v-progressive-preferred-ins-co-2012-ny-slip-op51335u/

Court: Appellate Term, Second Department
Decided: July 12, 2012
Citation: 2012 NY Slip Op 51335(U) · 36 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 2 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

W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133(A), 2012 NY Slip Op 51335(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 explain why it reduced some CPT code 97811 claims but denied others entirely for missing time documentation. The Appellate Term, Second Department, upheld dismissal of claims under code 97810 and partially paid code 97811 claims because the insurer proved full payment under the chiropractors' acupuncture fee schedule. For wholly denied code 97811 claims, no expert affidavit explained the disparate fee schedule treatment, defeating the insurer's prima facie showing. The provider also failed to establish entitlement to summary judgment on those claims. The judgment was reversed, dismissal of only those claims was vacated, and they were remitted for further proceedings; one judge dissented, finding the provider's challenge unpreserved. A claim excluded from both motions was not addressed.

Reported in New York Official Reports at W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co. (2012 NY Slip Op 51335(U))

[*1]

W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co.

2012 NY Slip Op 51335(U) [36 Misc 3d 133(A)]

Decided on July 12, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2012

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2132 Q C.

W.H.O. Acupuncture, P.C. as Assignee of IQBAL MOHAMMAD, Appellant, —
against
Progressive Preferred Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 24, 2010, deemed from a judgment of the same court entered July 8, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 24, 2010 order denying a motion by plaintiff which sought summary judgment upon all of its claims other than its claim for dates of service from September 19, 2007 to September 28, 2007, and granting a cross motion by defendant which sought summary judgment dismissing all of plaintiff’s claims other than plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007, dismissed the complaint as to all of plaintiff’s claims other than plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007.

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the claims for which plaintiff had billed under CPT Code 97811 and for which defendant had denied all payment is vacated, the branch of defendant’s cross motion seeking summary judgment dismissing those claims is denied, and the matter is remitted to the Civil Court for all further proceedings. [*2]
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on all of its claims other than its claim for dates of service from September 19, 2007 to September 28, 2007, and defendant cross-moved for summary judgment dismissing all of plaintiff’s claims other than plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007. The Civil Court, by order entered May 24, 2010, denied plaintiff’s motion and granted defendant’s cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]). As the parties excepted from the Civil Court’s consideration plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007, we do not address that claim.

With respect to plaintiff’s claims for acupuncture services billed under CPT Code 97810, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s claims for the unpaid portions of those bills.

With respect to plaintiff’s claims for acupuncture services billed under CPT Code 97811, defendant paid some of those claims at a reduced rate, but denied all payment for other such claims. As to the claims for which defendant paid plaintiff at a reduced rate, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Thus, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing those claims.

As to the claims for acupuncture services billed under CPT Code 97811 for which defendant denied all payment, defendant based its denials on the ground that the CPT Code was “time based,” and that plaintiff had not provided documentation to substantiate the time for the procedure. In support of its cross motion, defendant offered no explanation as to why in some cases it had paid at the reduced rate, while in other cases it had denied all payment. As defendant failed to provide an expert’s affidavit to explain the discrepancy in how defendant interpreted the fee schedule so as to permit reduced payment in some circumstances and no payment in others (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]), defendant did not
establish its prima facie entitlement to summary judgment with respect to the branch of its cross motion seeking summary judgment dismissing those claims.

We note that plaintiff likewise did not establish its prima facie entitlement to summary judgment therefor (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the judgment is reversed, so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the claims for which plaintiff had billed under CPT Code 97811 and for which defendant had denied all payment is vacated, the branch of defendant’s cross motion seeking summary judgment dismissing those claims is denied, and the matter is remitted to the Civil Court for all further proceedings on those claims.

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

Weston, J., dissents in a separate memorandum.

Weston, J., dissents and votes to affirm the judgment in the following memorandum:

I agree with the majority to the extent it upholds the portion of the Civil Court’s order awarding defendant summary judgment with respect to those bills that were paid in accordance with the workers’ compensation fee schedule. Contrary to plaintiff’s argument, chiropractors who perform acupuncture services are not entitled to be paid at the rate for medical doctors who perform the same services. Thus, defendant’s use of the workers’ compensation fee schedule to determine the chiropractor’s rate for acupuncture services was proper (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

As for plaintiff’s argument that defendant improperly denied payment for some of the sessions on the ground that they were “time-based procedures,” plaintiff failed to raise this argument in the Civil Court. Although defendant, in its cross motion, asserted that it had denied some claims under CPT Code 97811 on the ground that plaintiff had failed to state the time for the procedure, plaintiff, in opposition, never challenged this assertion. Instead, plaintiff does so for the first time on appeal, maintaining that a time was given in the documentation submitted. In my opinion, the argument is unpreserved, and I see no reason to review it in the interest of justice.

Accordingly, I vote to affirm the judgment.
Decision Date: July 12, 2012

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: claim forms not shown admissible as business records / merits of claim not proved

Noted the provider likewise failed to establish prima facie entitlement on the fully denied 97811 claims, relying on the business-records line of authority.

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, 208 (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 full payment at the chiropractor rate for the 97810 claims and the reduced-paid 97811 claims, but not for the fully denied 97811 claims, absent an expert explaining its inconsistent reading of the schedule.

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.

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.
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.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Cited by

A label shows how the later decision treated this one.

New York Med. & Diagnostic Ctr. v GEICO Ins. Co. (2021 NY Slip Op 51138(U)) FollowedThe insurer established untimely submission of five claims but failed to prove its fee-schedule defense to the remaining claim.
Advanced Recovery Equip. & Supplies v Travelers Ins. Co. (2022 NY Slip Op 50690(U)) FollowedThe insurer failed to establish its fee-schedule defense because its analyst's affidavit did not establish expert qualifications.
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.
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.

Similar decisions

Jing Luo Acupuncture, P.C. v NY City Tr. Auth. (2018 NY Slip Op 51083(U))A fee schedule defense is not precluded by an untimely denial for services governed by 11 NYCRR 65-3.8 (g).
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.
Olga Bard Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 51898(U))The insurer established fee schedule and medical necessity defenses but failed to justify dismissal of the initial acupuncture visit claim.
WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))The insurer established full payment under the chiropractic acupuncture fee schedule except for the initial visit claim.
Points of Health Acupuncture, P.C. v GEICO Ins. Co. (2011 NY Slip Op 51843(U))The workers' compensation fee schedule may be judicially noticed in determining reimbursement for acupuncture services.