May 23, 2017

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50706(U))

https://www.beynensonlaw.com/case-law/gentle-acupuncture-p-c-v-tri-state-consumer-ins-co-2017-ny-slip-op50706u/

Court: Appellate Term, Second Department
Decided: May 23, 2017
Citation: 2017 NY Slip Op 50706(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Fee schedule Medical necessity
Legal questions: Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2017)

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 lacked expert fee-schedule proof, and the provider's treating acupuncturist raised a factual issue on medical necessity. The insurer timely denied all claims on fee-schedule grounds and some additionally on medical-necessity grounds after an IME. It supplied no expert affidavit explaining its fee-schedule interpretation. Although the IME report supplied a factual basis and medical rationale for ending treatment, the treating acupuncturist's submission sufficiently rebutted its conclusions. Under CPLR 2001, omission of a jurat was not fatal, particularly absent substantial prejudice. The insurer waived the objection that an acupuncturist could not submit an affirmation under CPLR 2106 (a) by never raising it below or on appeal. The Appellate Term, Second Department, reversed and denied the insurer's summary judgment motion.

Reported in New York Official Reports at Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50706(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Gentle Acupuncture, P.C., as Assignee of Tiara Lockliaeras, Appellant,
against
Tri-State Consumer Insurance Company, Respondent.

Gabriel & Shapiro, LLC (Jason Moroff, Esq.), for appellant. Thomas Torto, Esq., for respondent.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated June 18, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint.

It is undisputed that all of plaintiff’s claims had been timely denied on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule. Moreover, the claims for dates of service July 12, 2013 through September 30, 2013 were denied on the additional ground that the services were not medically necessary, based upon an independent medical examination of plaintiff’s assignor by Dr. LoCascio, defendant’s licensed acupuncturist, which had been performed on June 24, 2013.

With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; 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]).

With respect to the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims for dates of service July 12, 2013 through September 30, 2013 on the ground that the services were not medically necessary, while defendant, in support of its motion, submitted Dr. LoCascio’s sworn report, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for further treatment, plaintiff, in opposition to the motion, submitted an affirmation by Dr. Vatelman, the licensed acupuncturist who had treated the assignor, which meaningfully referred to and sufficiently rebutted the conclusions set forth in Dr. LoCascio’s report. We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001). We further note that while Dr. Vatelman, as an acupuncturist, was ineligible to submit an affirmation under CPLR 2106 (a), defendant waived any objection on this basis, as it did not raise this issue either in the District Court or on appeal (see Scudera v Mahbubur, 299 AD2d 535 [2002]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decision Date: May 23, 2017

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held the insurer's sworn IME report made a prima facie showing, but the treating acupuncturist's affirmation meaningfully referred to and sufficiently rebutted it, with jurat and CPLR 2106 objections not fatal or waived.

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 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (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: Insurer's proof did not establish the excess as a matter of law; question left for trial

Held the insurer did not establish its fee schedule defense prima facie because it submitted no expert affidavit explaining its interpretation of the fee schedule.

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

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.
W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co. (2012 NY Slip Op 51335(U))The insurer failed to explain why it reduced some CPT code 97811 claims but denied others entirely for missing time documentation.

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.
Tandingan PT PC v State Farm Fire & Cas. Co. (2021 NY Slip Op 50869(U))Three provider claims were barred by a declaratory judgment, and the insurer proved fee schedule payment of the fourth.
Medalliance Med. Health Servs. v Travelers Prop. Cas. Ins. Co. (2021 NY Slip Op 50737(U))The insurer's misaddressed verification requests failed to toll the 30-day period to pay or deny the provider's claims.

Similar decisions

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.
Apple Tree Acupuncture, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52364(U))The insurer's fee-schedule motion relied on a ground absent from its denials, and the provider raised a medical-necessity issue on other claims.
Gentle Care Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51290(U))The insurer proved full fee-schedule payment for earlier acupuncture claims and lack of medical necessity for later treatment.
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.
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.