Great Wall Acupuncture, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52308(U) (App. Term, 2nd, 2009)
In support of a motion for summary judgment in this action by a provider to recover assigned first-party no-fault benefits, plaintiff showed that it had submitted a bill to defendant seeking to recover at a rate of $90 for each session of acupuncture rendered to plaintiff’s assignors by plaintiff’s licensed acupuncturist. Defendant paid plaintiff for the sessions at the reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services. Plaintiff sought full reimbursement, i.e., the $60.70 balance allegedly due for each session, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated, that is, between $85 and $100 per session. The court denied plaintiff’s motion [*2]for summary judgment, searched the record and granted defendant summary judgment dismissing the complaint. This appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
Contrary to defendant’s assertion, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
Defendant failed to establish that it timely denied the unpaid portion of the claims set forth on the claim form seeking the sum of $1,080 for assignor Clarence Beckford, which form defendant received on December 23, 2004 (see Insurance Department Regulations [11 NYCRR] ยง 65-3.8). As a result, its defense that plaintiff’s $1,080 claim exceeded the amount permitted by the workers’ compensation fee schedule is precluded (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and plaintiff was entitled to summary judgment upon the unpaid portion of said $1,080 claim.
With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant timely paid a portion of each of said claims and that defendant timely denied the $60.70 per session balance allegedly due on them. For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Therefore, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s complaint with respect to said claims.
Click here for No Fault Defender’s take on the case.
This means more then one may think at first blush. If you do not prove timely denial of the no pay there is no fee schedule defense and the insurer must pay the amount charged as long as it is the prevailing geographical rate. However look to the Court’s langauge. You need to prove timely denial even if you paid the fee schedule. That is timely denial of the unpaid portion.
In other words the Chiro/MD Acupuncture Rate does not defacto apply to licensed acupuncturists like a true fee schedule. It is a defense that must be preserved in a timely denial. As such if the insurer pays the fee schedule but cannot prove the timely denial of he remainder — they have to pay the remainder.
That’s big.
Kudos to Eva Gaspari for creating the record and the incomparable Scott Horn Esq for doing fantastic Appellate work.
What is so terrific? The carrier had an untimely denial and the defense of fee schedule was precluded. If somebody billed 20 million dollars for acupuncture services and the bill was untimely denied, then there would be a 20 million dollar award. The Appellate Term has already laid the groundwork for what they believe the proper compensation for acupuncture services is. That is the rate paid to a chiropractor for the same service. This is black letter law. It is also black letter law that an untimely or defective denial will preclude the fee schedule defense.
For some reason, something seems wrong with appealing this case. Having satisfied Dan Medical, it was obvious that the plaintiff would prevail on appeal. I think an intoxicated android could have won this appeal.
But, was this victory worth the court explicitly discounting plaintiff’s substantive argument, but saying that they are compelled to award judgment to Plaintiff due to an untimely disclaimer? I really think – and I speak as a practitioner – that this is the type of case that should remain at the civil court level, win, lose or draw, where it will not result in a published disposition. I say this because this case only benefited the defense bar. The Court is now going down a path that I am not even sure I agree with, which holds that upon proving payment is made at the chiropractor rate, the inquiry is over right there. This case now holds that you can import the best acupuncturist from China, whose credentials far outweigh any acupuncturist we create in the US, and the maximum amount of compensation is the chiropractor rate. That door, however, ajar it was that allowed some hope that certain acupuncturists could bill in excess of the chiropractor rate in has now slammed shut.
It is these short-sighted appeals on major issues that make bad law and keep many of us employed. But yes, good work to Ms. Gaspari and Mr. Horn for winning the battle but losing the war.
AJ
Well if it isn’t the cowardly lion himself. A.J. you disfigured recluse. You moron. “The door is slammed shut” Where the hell have you been. The Appellate Term already decided the substantive issue years ago in a decision called Great Wall v. GEICO. The door was slammed shut. What followed was a tremendous amount of Appellate Term precedent that said the same thing. It was shut time and time again. If you want to pay the chiro rate you can pay it.
Ms. Gaspari was not responsible for any of that precedent. But she has been trying to reverse it.
As evidenced by the decision below Court’s have taken the above Appellate Term precedent to mean that the Chiro Fee Schedule for Acupuncture services is the Fee Schedule for Licensed Acupuncture provided Acupuncture services. As such the best your Chinese Licensed Acupuncturist (Eastern Medicine) can do is the chiro fee schedule (Western Medicine) even if the insurer totally failed to pay or deny.
This decision gets rid of that. It also takes licensed acupuncture services that were paid at the fee schedule rate and injects viability into suits on such cases. Why my gutless wonder friend? Because if the insurer cannot prove timely denial or has a defective denial — well then a practitioner such as yourself can make quite a bit of money on said acupuncture.
The decision literally means millions of dollars for Licensed Acupuncturists in the hand of a good attorney.
Now work on that side comb and tape up the peeling brown stuff on that fake leather brief case and get ready for another grueling day in No Fault court you miserable hack.