The By-ReportAugust 10, 2019

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2019 NY Slip Op 06059 (2d Dept. 2019)

The oral argument and facts of this case were uninspiring. The legal issue was well settled. When a service is “BR”, does a prima facie case involving proving compliance with the “BR” as a condition precedent to bringing the law suit? This is how i would have argued the appeal for Hereford; that said, the argument is just not meritorious no matter how you spin it.

The best analogy involves (for the old timers here) when the Appellate Term once upon a time required a DME provider to prove that the bills were 150% of wholesale cost as part of a prima face case. The failure to offer this evidence required denial of the motion for summary judgment or dismissal of the case at trial. This line of cases was overruled about 13 years ago I think and the Court held that the DME bill was itself prima facie proof of the cost.

The same framework would probably apply here. The bill itself is prima facie proof of the cost. Whether or not the cost is in compliance with the fee schedule requires submission of a verification if the information is insufficient. The alternative would be to review the bill and to code it based upon the information provided, assuming the information in the possession of the insurance carrier is sufficient to make this determination.

“We agree with the Appellate Term’s determination that the denial of the plaintiff’s claim for services billed under CPT code 97039 was without merit as a matter of law. Although an unlisted modality must be justified by report, this requirement has no bearing on the insurer’s burden of requesting additional verification in the first instance (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319), which the defendant insurer did not do. ”

And that is all she wrote on this issue.