Simple addition is insufficient

Jodi Jacobs, D.C., PLLC v Global Liberty Ins. Co. of NY, 2021 NY Slip Op 50445(U)(App. Term 2d Dept. 2021)

Since when was taking out the abacus insufficient to prove that you properly added and multiplied?

“Contrary to defendant’s contention, defendant was not entitled to the dismissal of so much of the complaint as sought to recover upon the unpaid portion of the $380.73 claim for services rendered June 1, 2016 through June 13, 2016 because defendant failed to conclusively establish its defense that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Indeed, “the fee schedule does not, in and of itself, establish that defendant properly utilized the codes set forth within the workers’ compensation fee schedule to calculate the amount which plaintiff was entitled to recover for each service rendered (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009])” (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).”

The one good think about no-fault is the stakes are relatively low, so I can give attorneys who want the experience an opportunity to draft an appeal or to try a case.

Reasonableness of healthcare bill

Spanakos v Racanelli, 2021 NY Slip Op 50127(U)(App. Term 2d Dept. 2021)

(1) “Plaintiff, a chiropractor, brought this action to recover, among other things, the balance allegedly due him for healthcare services rendered to defendant. At a nonjury trial, plaintiff proffered evidence that he had submitted bills to defendant’s health plan requesting payment, which bills set forth a total charge of $ 1,756.81, which sum includes a co-payment of $ 480 due from defendant. Defendant presented evidence that plaintiff had failed to provide information necessary for the health plan to process plaintiff’s claim, but implicitly conceded that defendant was responsible for paying the $ 480 co-payment. After the trial, the Civil Court awarded plaintiff the principal sum of $ 480. [*2]  Plaintiff appeals on the ground of inadequacy.”

(2) “It is well settled that a healthcare provider is entitled to recover for professional services rendered by him or her under an implied agreement by the patient to pay the reasonable value of the services (see Taranto v Abohwo, 45 Misc 3d 130[A], 3 N.Y.S.3d 287, 2014 NY Slip Op 51578[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Brookhaven Mem. Hosp. Med. Ctr. v Lukashevskiy, 43 Misc 3d 128[A], 990 N.Y.S.2d 436, 2011 NY Slip Op 52557[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; Brottman v Crane, 11 Misc 3d 129[A], 815 N.Y.S.2d 493, 2006 NY Slip Op 50299[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). The performance and acceptance of such services give rise to the inference of an implied contract to pay for the reasonable value of the services (see Moors v Hall, 143 AD2d 336, 338, 532 N.Y.S.2d 412 [1988]; Brookhaven Mem. Hosp. Med. Ctr. v Lukashevskiy, 43 Misc 3d 128[A], 990 N.Y.S.2d 436, 2011 NY Slip Op 52557[U]; Long Is. Jewish Med. Ctr. v Budhu, 20 Misc 3d 131[A], 867 N.Y.S.2d 17, 2008 NY Slip Op 51436[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Brottman v Crane, 11 Misc 3d 129[A], 815 N.Y.S.2d 493, 2006 NY Slip Op 50299[U]).”

(3) “The terms of an agreement, if any, by plaintiff to seek recovery of his fees from defendant’s [*3]  health plan is not part of the record. Assuming, without deciding, that plaintiff’s right to recover payment from defendant was not affected by plaintiff’s failure, if any, to properly pursue payment from defendant’s health plan, plaintiff, in any event, did not establish the reasonable value of the services he rendered, which proof is part of plaintiff’s prima facie case (see Castro v East End Plastic, Reconstructive & Hand Surgery, P.C., 47 AD3d 608, 610, 850 N.Y.S.2d 483 [2008]). The sole proof submitted by plaintiff as to the reasonableness of the charges appearing on his bills was the bills themselves (see id.). Consequently, plaintiff failed to establish that the award in his favor was inadequate.”

PT Fee schedule denial not substantiated

NL Quality Med., P.C. v GEICO Ins. Co., 2020 NY Slip Op 51340(U)(App. Term 2d Dept. 2020)

“With respect to the second cause of action, defendant failed to establish, as a matter of law, its defense that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), because, among other things, defendant attempted to rely on certain documents which were attached to defendant’s motion papers without authentication, foundation or even discussion (see Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).”

This is the line the court uses when it is an 8 unit (now 12 unit) denial based upon exhaustion of per diem units. The court expects the carrier to authenticate someone else’s records.

The power of the certified medical coder

LVOV Acupuncture, P.C. v Nationwide Ins. Co., 2020 NY Slip Op 51339(U)(App. Term 2d Dept. 2020)

“the affidavit executed by defendant’s certified medical coder, submitted in support of defendant’s motion, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services in question (see Quality Comprehensive Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 65 Misc 3d 143[A], 2019 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).”

CPT Code 97813 and 97814

Live In Grace Acupuncture, P.C. v GEICO Gen. Ins. Co., 2020 NY Slip Op 51360(U)(App. Term 2d Dept. 2020)

“The branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 was based upon the defense that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The record establishes that defendant demonstrated that it had fully paid plaintiff in accordance with the workers’ compensation fee schedule for the services billed under CPT codes 97813 and 97814 for acupuncture services that plaintiff had rendered after April 1, 2013. As a result, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 should have been granted (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]; Jing Luo Acupuncture, P.C. v NY City Tr.Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).”

CHIRO rate.

The chiropractor rate

S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y., 2020 NY Slip Op 51004(U)(App. Term 2d Dept. 2020)

Well in a few weeks and to the extent people still treat for motor vehicle accidents, this will be placed in the New York no-fault relic garbage can.

“With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the unpaid portion of plaintiff’s claims which were denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant established that it had fully paid plaintiff for the services billed under CPT codes 97810, 97811, 99202, and 99212 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 Dept, 2d, 11th & 13th Jud Dists 2009]). Likewise, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97026, except for the services rendered on December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see id.). Thus, defendant established its prima facie entitlement to summary judgment upon the unpaid portion of those claims.”

120-day rule and Fee Schedule

Crystal Acupuncture, P.C. v Travelers Ins., 2019 NY Slip Op 52055(U)(App. Term 2d Dept. 2019)

“With respect to the branches of defendant’s cross motion which sought summary judgment dismissing so much of the complaint as sought to recover upon the claims in the amounts of $281.98, $140.99, $422.97, and $140.99, which claims defendant had denied on the [*2]ground that plaintiff had failed to provide requested verification within 120 days of the initial verification requests (see 11 NYCRR 65-3.5 [o]), defendant demonstrated, prima facie, that it had not received all of the requested verification. Plaintiff failed to raise a triable issue of fact to rebut defendant’s showing.

“With respect to the branches of defendant’s cross motion seeking summary judgment dismissing the unpaid portion of claims which had sought the sums of $1,452.90 and $1,281.91, which defendant had denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant’s proof was sufficient to establish that defendant had properly paid those claims pursuant to the workers’ compensation fee schedule. In opposition, plaintiff’s affidavit failed to raise a triable issue of fact with respect to those branches of defendant’s cross motion.”

Verification and fee schedule issues

Blackman v Nationwide Ins., 2019 NY Slip Op 52038(U) (App. Term 2d Dept. 2019)

Two lessons. The Appellate Term is still finding the generic I mailed the verification affidavit sufficient to raise an issue of fact. Seems wrong to me. Secondly, the Judge Hackeling’s constitutional findings on FS predictability seem to be in doubt.

“Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification. Moreover, we find that, on this record, there is also a triable issue of fact as to defendant’s fee schedule defense, which defense, contrary to the finding of the Civil Court, defendant was not required to establish that it had preserved, as the services at issue were rendered in 2015 (see 11 NYCRR 65—3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.”

Fee schedule is not precluded/ New Jersey FS discussion

Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 2019 NY Slip Op 51843(U)(App. Term 2d Dept. 2019)

Well, this one has been written before, not in this manner.

” While plaintiff argues that defendant failed to establish that it had timely mailed its denial of claim form, 11 NYCRR 65-3.8 (g) (1) (ii), effective April 1, 2013 (see 11 NYCRR 65-3.8 [g] [2]), provides that “no payment shall be due for . . . claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (see also Oleg’s Acupuncture, P.C. v Hereford Ins. [*2]Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). As the services at issue were provided on February 9, 2015, defendant was not required to establish that it had timely denied the claim in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; Precious Acupuncture Care, P.C. v Hereford Ins. Co., 58 Misc 3d 147[A], 2018 NY Slip Op 50042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018])

(2) ”  Upon a review of the record, we find that the coder’s affidavit was sufficient to establish, prima facie, that defendant had fully paid the claim submitted by the New Jersey provider in accordance with the New Jersey medical fee schedule (see 11 NYCRR 68.6 [b], [c]) “

Certified Professional Coder

“Contrary to plaintiff’s contention, the affidavit executed by defendant’s certified medical coder, submitted in support of defendant’s motion, established that, to the extent that plaintiff sought to recover fees in excess of $425.88 for each bill, the amount sought exceeded the amount permitted by the workers’ compensation fee schedule (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). “

I think we can say “enough said”