Back when ATIC had a functional litigation defense strategy July 31, 2017

Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50946(U)(App. Term 2d Dept. 2017)

I had to look through my archives to see what happened here.    The verification defense was not addressed nor was the fee schedule defense addressed in the main motions.  The defense was suppoted by affidavit and stated the following:

“The basis of the denial is that the billing was in excess of the applicable fee schedule. A provider who administers Muscle Testing (CPT Code 95831) and Range of Motion services (CPT Code 95851), like all other services, must abide by the fee schedule.  Plaintiff billed in excess and Defendant is entitled to summary judgment to the extent that the bills were in excess of the fee schedule. ”

“A subsequent fee schedule review was performed by Defendant’s expert coder based upon Plaintiff’s billing, medical records, and supporting documentation. Defendant’s expert review determined that the manual muscle testing codes may not be unbundled.  When multiple extremities of muscle testing are performed, compensation is limited to the appropriate bundled code, i.e. CPT Code 95833 (testing, total evaluation without hands), rather than Plaintiff billing multiple times for CPT Code 95851. CPT Code 95833 has a relative value of “13.53” and when it is multiplied by the conversion factor in region IV (where services were performed) “8.45”, this yields the appropriate total fee schedule amount of $114.33.”

“Plaintiff also billed for range of motion testing: CPT Code 95851. As per the Worker’s Compensation fee schedule, compensation is limited to each extremity or each trunk section that is tested.  CPT Code 95851 has a relative value of “5.41” and when it is multiplied by the conversion factor in region IV (where services were performed) “8.45”, this yields a fee schedule amount of $45.71 per extremity or trunk section of the spine. Defendant’s coding expert opined that this should be remitted only once per area tested.”

A coding affidavit corroborated these facts and averred that Plaintiff was overpaid.



Hearsay insufficient to substantiate a fraud defense/Fee Schedule discussion July 31, 2017

Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co.,2017 NY Slip Op 50945(U)(App. Term 2d Dept. 2017)

Fee Schedule: Box #18

(1) “Contrary to plaintiff’s contention, the denial of claim forms were sufficient to advise plaintiff that defendant was partially denying plaintiff’s claims on the ground that the amount plaintiff sought to recover was not in accordance with the workers’ compensation fee schedule. Indeed, a checked box on the forms indicated that benefits were denied because the fees were not in accordance with the fee schedule (see Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

Lack of coverage

(2) “To the extent defendant seeks summary judgment dismissing these claims on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

(Infinity involved an SIU affidavit relying in large part on an inadmissible police report)

Additional Verification non-receipt July 31, 2017

Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co., 2017 NY Slip Op 50958(U)(App. Term 2d Dept. 2017)

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because defendant had timely and properly requested verification and the verification had not been provided to defendant. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and found that the only remaining issue for trial was whether defendant had received the verification it had requested.

As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a])”

The verification to be received was an affidavit of receipt of supplies from the EIP.  I am curious if the outcome would have changed had a delivery receipt -should it have existed – was annexed to the answering papers,

EUO is untimely and not a double no-show July 26, 2017

Sovereigh Acupuncture, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50922(U)(App. Term 2d Dept. 2017)

(1) ” The Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground, among others, that the facts submitted by defendant in support of its cross motion showed that, while defendant declared that plaintiff had failed to appear for scheduled EUOs, defendant had rescheduled each EUO before the date set for each EUO and that, prior to each EUO, defendant was aware that plaintiff was unable to appear.”

(2) “With respect to the claims which defendant admits it received between January 18, 2012 and February 14, 2012, defendant’s moving papers demonstrate that the first EUO scheduling letter sent to plaintiff was mailed more than 30 days after defendant had received these claims. As a result, contrary to defendant’s contention, defendant failed to demonstrate that it had properly denied these claims based upon plaintiff’s failure to appear for [*2]duly scheduled EUOs.”

(3) “defendant’s papers demonstrate that, prior to each scheduled EUO of plaintiff, defendant sent plaintiff a letter rescheduling the EUO of plaintiff for a different date. As a result, the fact that plaintiff did not appear on the date originally set forth in a scheduling letter does not constitute a failure to appear, as defendant had already changed the date for which that EUO had been scheduled. In view of the foregoing, defendant failed to show a triable issue of fact as to whether it had properly denied these claims based upon plaintiff’s failure to appear for two duly scheduled EUOs.”

It appears that Defendant did not challenge Plaintiff’s prima facie case on appeal or in the court below.  Even if a challenge was made, the Court in a rare move found that Defendant’s defense lacked merit as a matter of law.  This seems to only occur when a defendant lays bear their proofs and the Court concludes there is no conceivable way a defense could be found to exist.  In this case, the letters were late and one of the EUO no shows was a reschedule.

Why appeal this?  I am curious.   Is there a point of well-settled no-show law that defendant is trying to push that cannot be discerned?

An EUO defense that was precluded July 26, 2017

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co., 2017 NY Slip Op 50919(U)(App. Term 2d Dept. 2017)

“As plaintiff argues, defendant’s moving papers failed to establish that the first EUO scheduling letter defendant sent to plaintiff had been timely, since defendant stated that the letter was sent more than 30 days after defendant had received the claims”

Why not call and settle if you are defendant?   This is the law in both the First and Second Departments.