Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendant’s motion for summary judgment and plaintiff’s cross motion for partial summary judgment. Papers Numbered Notice of Motion & Affidavits Annexed 1 Affirmation in Opposition 2 Affirmation in Reply 3 BACKGROUND Plaintiff commenced this action to recover assigned first-party no fault benefits, pursuant to a summons and complaint September 25, 2017, seeking entry of judgment in the amount of $1347.07, plus costs. Defendant appeared by counsel and filed an answer on April 4, 2018, asserting ten affirmative defenses, including that the amounts billed exceed the statutory fee schedule, that the services were not reasonable and necessary, accord and satisfaction and related claims. A notice of trial was filed on July 1, 2019. THE PENDING MOTION On October 29, 2019, defendant moved for summary judgment and related relief. On March 10, 2020, the motion was fully briefed and this court reserved decision. ALLEGED FACTS Carol Graham (CG) was a pedestrian involved in a motor vehicle accident on October 30, 2014. The bills at issue in this action pertain to alleged injuries suffered. Defendant received two bills of $ 111.38 each for dates of service of 1/15/2015- 1/20/2015 and 3/10/2015-3/27/2015 and alleges it paid $76.18 for each, based on its claim that this was the appropriate amount under the fee schedule. On March 16, 2015, CG submitted to an independent medical exam (IME) by John Johnson (Johnson), who is licensed in acupuncture and as a Chiropractor. Johnson concluded that there was no need for further chiropractic or acupuncture treatment for CG, and on April 2, 2015, defendant issued a blanket denial for all future chiropractic and acupuncture benefits effective April 9, 2015. Defendant received a further bill for 4/1/2015 to 4/29/2015 for $175.69, and paid $41.04 of same, denying payment for dates of service for 4/22/2015 to 4/29/2015. Defendant further alleges the bill should be reduced based on the fee schedule to $120.17. Further bills were received by defendant as follows: 4/09/2015-4/30/2015 for $205.69 5/07/2015-5/14/2015 for $111.38 5/08/2015-5/28/2015 for $334.14 6/02/2015-6/15/2015 for $222.76 7/01/2015-7/15/2015 for $85.69 7/02/2015 for $30.00 These were all denied based on the IME and claim of lack of medical necessity. Additionally, defendant argues the amounts should be reduced based on applicable fee schedules. Plaintiff denies receipt of payment for the bills from January and March 2015, and points out defendants papers contain no cashed checks to establish same. DISCUSSION Defendants essentially move for summary judgment based on their defense of fee schedule and lack of medical necessity. The court finds that as to fee schedule defendant failed to sustain its burden of establishing the right to summary judgment, but that defendant’s defense of lack of medical necessity has not been rebutted and defendant is entitled to partial summary judgment on that issue. FEE SCHEDULE Under applicable regulations, where a service is reimbursable but the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with the charges permissible for similar procedures under schedules already adopted or established. The superintendent has not adopted a fee schedule applicable to licensed acupuncturists, requiring consideration of ‘charges permissible for similar procedures under schedules already adopted or established’. Glob. Liberty Ins. Co. of New York v. N. Shore Family Chiropractic, PC, 178 AD3d 512, 512-13, (NY App. Div. 2019, citations omitted). While carriers are permitted to refer to the chiropractic fee schedule for the rates of reimbursement for licensed acupuncturists (Great Wall Acupuncture v. GEICO General Insurance Company 16 Misc 3d 23), the Appellate Division, First Department has held that “…. such holdings do not foreclose the use of the physician fee schedule in all cases (Global Liberty Insurance Co. Of New York v. North Shore Family Chiropractic, PC, 2019 NY Slip Op. 08942).” Based on the foregoing, the court finds that defendant has failed to sustain its burden in establishing summary judgment on the issue of the fee schedule. Nor did defendant proffer sufficient evidence to establish as a matter of law that the claims were improperly billed or were in excess of the amount permitted by the fee schedule (Compas Medical, P.C. v. GEICO Ins. Co., 46 Misc 3d 133[A]). LACK OF MEDICAL NECESSITY Defendant established timely and proper denials. Additionally, in support of its motion, defendant submitted a sworn statement by Johnson, the chiropractor who performed the IME of CG, as well as Johnson’s report. The IME report set forth a factual basis and medical rationale for the Johnson’s conclusion that there was a lack of medical necessity for further treatment. In opposition to the motion, plaintiff failed to submit an affidavit from a doctor to meaningfully rebut the conclusions set forth in Johnson’s report (Glenn Segal PT, P.C. v. GEICO, 44 Misc 3d 141(A)). CONCLUSION Based on the forgoing, the court finds that defendant’s motion for summary judgment to the extent it is based on its defense of fee schedules is denied, but to the extent that defendant seeks summary judgment for services rendered from April 9, 2015 forward, the motion is granted. This constitutes the decision and order of the court. Dated: April 7, 2020
