Recitation, as required by CPLR 2219 (a) of the papers considered in the review of this motion: Notice of Motion and Affirmation in Support 1,2 Notice of Cross-Motion and Affirmation in Support 3,4 Affirmation in Opposition to Cross-Motion 5 DECISION AND ORDER In an action to recover assigned first-party no-fault insurance benefits, defendant moves for summary judgment pursuant to CPLR 3212 based on its claim to have fully paid some of the bills in dispute pursuant to the workers’ compensation fee schedule and denied the remainder on the ground that the services billed lacked medical necessity based upon a medical examination conducted by defendant’s expert. Plaintiff cross-moves for an order: 1) awarding it summary judgment pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b). It is well settled that summary judgment is a drastic remedy (See, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact (See, Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (id. Sillman at 404). To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof (See, Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers (See, Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (See, Bank of NY Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]). Plaintiff’s principal is a licensed acupuncturist whose professional corporation billed defendant insurer for services rendered under CPT codes 97810, 97811, 99203 and 99213. Defendant maintains that it fully paid charges under CPT codes 97810 and 97811 pursuant to the fee schedule rate for chiropractors since there is no separate workers’ compensation fee schedule for licensed acupuncturists. The defendant further alleges, based upon the affidavit of a professional coder, that it denied payment for services rendered under CPT codes 99203 and 99213, because “there is no allowance for procedure codes neither 99213 nor 99203 in the New York Workers’ Compensation Fee Schedule under the provider’s specialty.” Defendant’s coder’s explanation that defendant denied payment of services rendered under CPT codes 99203 and 99213 due to lack of prescribed worker’s compensation rate explicitly for acupuncturists, does not prove proper denial of bills under CPT codes 99203 and 99213, and is in fact inconsistent with defendant’s claim that it properly paid bills under CPT codes 97810 and 97811 at the chiropractic fee schedule because there is none expressly for acupuncturists. Moreover, the language used as the basis of the denial of benefits issued by the defendant as to CPT code 99023 is inherently ambiguous. The denial states: “This procedure as billed is considered to be part of a more comprehensive service provided. Reimbursement is based on the more comprehensive service.” Defendant provides no guidance or clarification from its coder as to the essence of what would constitute a “more comprehensive service,” to demonstrate that the denial was issued properly. However, an expert’s explanation is necessary to establish defendant’s proper denial of services rendered pursuant to CPT code 99203. (See, Gentle Acupuncture, P.C. v. Tri-State Consumer Ins. Co., 55 Misc 3d 147[A] [App Term, 2d 2017], holding defendant did not establish its prima facie entitlement to summary judgment, because it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule). Similarly, as to CPT code 99213, the defendant’s coder merely restates the insufficient language of the denial that “There is no allowance this procedure in the New York Workers’ Compensation Fee Schedule under the provider’s specialty” without providing any clear justification that the denial was warranted. An insurer is only required to pay for claimed services in the amounts prescribed by the fee schedule (See, Oleg’s Acupuncture, P.C. v. Hereford Ins. Co., 58 Misc 3d 151[A] [App. Term, 2d Dept [2018]) and has the burden to establish that the amounts charged exceeded the permitted amounts (See, Rogy Med., P.C. v. Mercury Cas. Co., 23 Misc 3d 132[A] [App Term, 2d Dept 2009]). While the Court is permitted to takejudicial noticeof the workers compensation fee schedule, thefee schedulein and of itself does not establish that a defendant properly utilized the codes within thefee scheduleto calculate the amount a plaintiff is entitled to recover (See, AcupunctureHealthcare Plaza I, P.C. v. Metlife Auto & Home, 54 Misc 3d 142[A] [App Term, 2d Dept 2017]). An insurer may establish that the fees charged for medical services exceeded the rates in the fee schedule, through an affidavit of a claims examiner in conjunction with excerpts from the worker’s compensation fee schedule (See, NaturalAcupunctureHealth, P.C. v. Praetorian Ins. Co., 30 Misc 3d 132[A] [App Term, 1st Dept 2011]; Gl Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co., 41 Misc 3d 131[A] [App Term, 2d Dept 2013]). The worker’s compensation fee schedule describes CPT codes 97810 and 97811, the bills for which defendant asserts it fully paid pursuant to the chiropractic fee schedule, as follows: CPT code 9810 is described as “Acupuncture, one or more needles; without electrical stimulation, initial 15 minutes of personal one-on-one contact with the patient.” Similarly, CPT code 97811 is “without stipulation, each additional 15 minutes of personal one-on-one contact with the patient, with re-insertion of the needle(s)” To support its proper payment of the bills pursuant to the chiropractic fee schedule, defendant submits detailed affidavit from a certified professional coder, who with reference to the applicable sections of the workers’ compensation fee schedule, sufficiently explains that defendant properly paid the foregoing bills in accordance with the worker’s compensation fee schedule. As to CPT codes 97810 and 97811, the facts of the instant action are similar to those of Flushing Traditional Acupuncture, P.C. v. GEICO Ins. Co., 69 Misc 3d 140[A] [App Term, 2d Dept 2020], where the court dismissed so much of the complaint that sought to recover payment of bills submitted for acupuncture services which defendant had paid in accordance with the chiropractic rate under the workers’ compensation fee schedule. In a November 6, 2020 decision, the Appellate Term, Second Department, citing Great Wall Acupuncture, P.C. v. GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept 2009], affirmed the lower Court’s order and found that defendant demonstrated it had fully paid for acupuncture services performed pursuant to the rate for chiropractors under the workers’ compensation fee schedule. Accordingly, defendant has met its duty in demonstrating that it paid plaintiff in accordance with the worker’s compensation fee schedule as to these CPT codes. In reply, plaintiff’s principal claims that plaintiff is entitled to more than the chiropractic fee for services rendered under CPT codes 97810 and 97811. Plaintiff’s principal, however, bases this claim on boilerplate, vague and conclusory affidavits which, although replete with legal arguments, are devoid of any factual basis, details, or discussion of the nature of services provided by plaintiff regarding the bills at issue. These affidavits are insufficient to establish the existence of a material issue of fact. The defendant has denied payment of services performed on or after August 10, 2016 due to alleged lack of medical necessity. Defendant bases the denial on the report of its expert, a chiropractor and an acupuncturist, who signed the report before a notary public and declared its contents true and accurate. The court finds that the expert’s report establishes prima facie showing of defendant’s entitlement to summary judgment as to services performed on or after August 10, 2016, as the report contains a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services at issue. (See, Essential Acupuncture Servs., P.C. v. GEICO Indem. Co., 61 Misc 3d 139[A] [App Term, 2d 2018]). I opposition, the plaintiff submits a conclusory affidavit from its owner who is also an acupuncturist, which states that she “evaluated” the assignor sometime after the assignor was examined by defendant’s expert, and that based upon her evaluation, she concludes that the assignor required further treatment. However, plaintiff’s owner does not provide any details regarding her evaluation of the assignor, including how the evaluation was conducted, whether she performed an examination of the assignor, or the assignor’s alleged deficiencies other than subjective complaints of pain. Although the affiant tries to explain that people in general would benefit from acupuncture, she fails to provide facts that would establish the necessity for assignor’s continued treatment. The plaintiff’s owner’s affidavit is further conclusory as the affiant states she reviewed notes, reports, follow up reports, and other records created by the affiant or other providers but does not provide any information as to the findings in those records. While a rebutting medical affidavit is often sufficient to create a factual issue, in this case, plaintiff’s principal’s affidavit fails to raise an issue of fact because it lacks a factual and a medical rationale refuting defendant’s expert’s findings. (See, Flushing Traditional Acupuncture, P.C. v. GEICO Ins. Co., 36 Misc 3d 156[A] [App Term, 2d 2012], holding that a conclusory rebuttal to defendant’s expert’s report merits dismissal). Plaintiff’s further claim that defendant’s expert report is inadmissible hearsay as it lists the medical records reviewed by the expert has no basis in law (see, Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 27 Misc 3d 140[A] [App Term, 2d Dept 2010], holding that for the purpose of a summary judgment motion, reference in defendant’s expert’s report to the assignor’s medical records does not constitute inadmissible hearsay). Similarly, plaintiff’s allegation that the records reviewed by defendant’s expert should have been exchanged with plaintiff is without merit (id.). Finally, the court finds plaintiff’s claim that the expert report was not properly signed inaccurate. Plaintiff’s cross-motion for summary judgment based on CPLR 3211(b), CPLR 3211(c) and CPLR 3212(a) is denied as plaintiff fails to demonstrate that the claims at issue had not been timely denied or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law. (See, Sama Physical Therapy, P.C. v. Am. Tr. Ins. Co., 53 Misc 3d 129[A] [App Term, 2d Dept 2016]). Plaintiff’s motion pursuant to CPLR 3212(g) is granted to the extent that plaintiff has proven that it timely mailed its bills and the bills were received by defendant. Defendant’s motion for summary judgment is granted only to the extent that plaintiff’s claims regarding bills charged under CPT codes 97810 and 97811 as well as claims for services performed on or after August 10, 2016 are hereby dismissed. The remainder of defendant’s motion is denied. This constitutes a decision and order of the court. Dated: March 22, 2021
