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Civil Court, City of New York.

Ksenia PAVLOVA, D.O. a/a/o Cosby Reavis, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant.


Decided: December 18, 2017

For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Avenue, 3rd Floor, Suite 7, Brooklyn, NY 11235 For Defendant: Peter C. Merani, P.C., 1001 Avenue of the Americas, Suite 1800, New York, NY 10018

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this Motion


Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2

Replying Affidavits



Plaintiff's motion to reargue its motion for summary judgment is decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff submitted a claim form and invoice to defendant for services rendered to Cosby Reavis on October 8, 2013. According to plaintiff's claim, these services related to various codes promulgated under the Official New York Workers' Compensation Medical Fee Schedule (the “Fee Schedule”), including 20999, which is a “By Report” Code. Defendant denied plaintiff's claim in part because plaintiff did not bill its services in accordance with the applicable fee schedule. Plaintiff filed the instant action and both parties moved for summary judgment.

With specific regard to plaintiff's motion to reargue, this court denied plaintiff's motion for summary judgment with respect to plaintiff's claim for payment under Code 20999. The court reasoned that, because Code 20999 is a “By Report” code, plaintiff was required to submit certain information about the services provided in order to establish a proper billing rate as part of its prima facie case. Plaintiff did not provide this information, and consequently, plaintiff did not meet its initial burden of proof on summary judgment.

Plaintiff now moves to renew and reargue its motion for summary judgment. A motion for leave to renew is addressed to the court's sound discretion and can be granted only if it is shown that there are new facts, although in existence at the time the original motion was made, that were unknown to the movant and therefore were not brought to the court's attention (Semenov v. Semenov, 98 AD3d 962, 963 [2d Dept 2012] ). To the extent the facts are new, plaintiff must offer a reasonable justification for his failure to present such facts on the prior motion (id.).

A motion to reargue must show that there was a point of law or fact that was overlooked in the prior motion, and cannot be based on arguments different from those originally stated in the prior motion (NYCTL 1998–1 Tr. v. Rodriguez, 154 AD3d 865, 865 [2d Dept 2017]; Rodriguez v. Gutierrez, 138 AD3d 964, 966—67 [2d Dept 2016] ).

Plaintiff argues that “academic literature” dictates that dry needling is commonly billed under Code 20999, and attaches this “literature” to its motion to renew and reargue. As an initial matter, plaintiff does not explain why it did not offer this “literature” in support of its underlying motion for summary judgment, and so it cannot be considered for the motion to renew (Semenov, 98 AD3d at 963). Likewise, the court cannot consider this “literature” as part of the motion to reargue, as it is a new theory not advanced in the underlying motion (NYCTL 1998–1, 154 AD3d at 865; Rodriguez, 138 AD3d at 966—67).

Even if this court were to consider this “literature”, plaintiff provides no reason why the court should give it any weight or deference. The referenced document is titled “Local Coverage Determination (LCD): Pain Management (L33622)”. Plaintiff offers no explanation about who authored the document, who uses this document, how it is used, or the weight, if any, the medical community gives the document. All this said, the document makes a passing statement that drying needling should be billed under Code 20999. Even assuming this were true, it would not change the “By Report” designation in the Fee Schedule, which requires a medical provider to submit a report with its bill to establish the proper billing rate.

Additionally, plaintiff argues that this court incorrectly interpreted plaintiff's prima facie burden as established by Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., (25 NY3d 498, 507 [2015] ). Plaintiff argues that Viviane Etianne holds that plaintiff's prima facie burden is limited only to proving timely submission of a claim form, and that payment is overdue. In its underlying decision in this action, this court explained that, in order to determine the appropriate monetary value of services designated “By Report”, the Official New York Workers' Compensation Medical Fee Schedule (the “Fee Schedule”) directs the medical provider to provide certain information to justify its billing. These documents and information (i.e., the “report”) is part of the “completed claim form” (see Viviane Etienne, 25 NY3d at 507), and thus part of plaintiff's prima facie burden, so that defendant has sufficient notice of the services being billed in order to make a proper decision on the claim. Plaintiff does not argue that the court overlooked or misunderstood a point of law. Instead, plaintiff simply disagrees with the court's reasoning.

After plaintiff filed the instant motion, the Appellate Term issued its decision in Bronx Acupuncture Therapy, P.C. v. Hereford Ins. Co., (57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d, 11th and 13th Jud Dists 2017] ). In Bronx Acupuncture, the plaintiff medical provider sought payment for services submitted under a “By Report” code. The defendant insurance company denied the claim because the plaintiff did not provide certain documentation. The appellate court treated the documentation as a request for additional documentation, and held that defendant's denial was not proper because it did not request the documentation in accordance with 11 NYCRR 65—3.5(b) (Bronx Acupuncture, 57 Misc 3d 145[A], *1).

That said, the specific legal issue confronted in this action is whether the “report” in a “By Report” claim is an additional form of documentation or verification, as is generally the case when a carrier requests copies of medical records, or subsequent letters of medical necessity, or rather, in this unique circumstance, whether the “report” in a claim billed “By Report” is actually an integral part of the bill or claim form, and so whether it must be included in order to constitute a “completed claim form”. If the latter, then it would be an element of plaintiff's prima facie burden to produce such a “completed claim form”, under Viviane Etienne. It would not constitute a separate, new element of the prima facie burden.

I acknowledge, support, and endeavor to follow the principles laid out in Viviane Etienne. Further, I am mindful of the Appellate Term's decision in Bronx Acupuncture and its potential implication in this case. That said, I find that it is definitional to the submission of any claim that the claim form must be complete, and that to satisfy the prima facie burden laid out in Viviane Etienne, completed claim forms must provide the necessary data to identify both the value of the claim and the basis for calculating that value. It is the satisfaction of this prima facie threshold that shifts the burden to the insurer to pay or deny the claim, or to demand further verification, within the times specified in the regulations. Alone in the applicable fee schedule, the “By Report” code provides no inherent value. The code is a wild card which invites the provider to name the value of the claim and to explain, in narrative form, the basis of calculation for that value. Without the report, the “By Report” code is not reduced to a defined service with a calculated value, and the insurer has no basis to either pay or deny the associated claim. For these reasons, I find that the report is a necessary component of the bill for a “By Report” claim. Its absence renders the claim form incomplete, fails to satisfy the prima facie requirements laid out in Viviane Etienne, and so fails to trigger the insurer's obligation to timely pay or deny the claim.

For the foregoing reasons, plaintiff's motion to renew and reargue is denied.

This constitutes the decision and order of the court.

Devin P. Cohen, J.

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