First sighting of 120-day rule

TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 2017 NY Slip Op 51247(U)(App. Term 2d Dept. 2017)

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claim at issue based upon plaintiff’s failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]). ”

The case was followed the usual rubric where the Court found a non-specific affidavit sufficient to raise an issue of fact.  What is more interesting, however, is the Court held that the a 120-day denial had to be timely issued.  This begs the question: When is a 120-day denial “timely” denied?  Good question.

Additional Verification non-receipt

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,

Trial de-novo win where carrier did not respond to verification objection letter and wins.

Global Liberty Ins. Co. v Jonathan Lewin, M.D., P.C., 2017 NY Slip Op 50897(U)(Sup. Ct. Nassau Co. 2017)

Here are the cliff note facts.

  • Carrier delayed surgical bill for (a) films and (b) MRI films.
  • Delay letters were sent to MRI center and Surgeon
  • Surgeon write backs and says we do not have MRIs, get them from Doshi.  Here are HIPPA requests.
  • Carrier did not respond

Lower arbitrator  applied the rule that the carrier who does not respond to communications always loses.  Here is the quote from the lower arbitrator (17-15-1015-7475):

Respondent issued 2 requests for additional verification from Applicant provider here. The requests are dated 4/28/15 and 5/28/15. Respondent was seeking an AOB, surgical photos from the surgeon and MRI films from Doshi Diagnostics. Respondent also provides the 2 verification requests sent to Doshi Diagnostics. It is Respondent’s position that these requests were never complied with. Applicant points out that on May 21, 2015, Excel Surgery Center sent the surgical photos requested to Respondent. Applicant argues that this was never acknowledged by Respondent. Respondent argues that their 2nd verification dated 5/28/15 was their response to the 5/21115 response by Excel Surgery Center. Applicant argues that that is an insufficient response because it is identical to the first verification request dated 4/28/15 and in no way acknowledges the receipt of the films. In addition, Applicant provide an Affidavit from a Mike Manzo, billing manager for MD Capital Advisors, a billing company that handles the billing for Applicant provider. This is a very credible Affidavit. He explains that they attempted to respond to the verification request on May 21, 2015 via FAX to Respondent, but the FAX did not go through. Thereafter, they mailed their response to Respondent postmarked June 2, 2015. They provide a copy of the return receipt green card stamped June 2,
2015 and signed by someone at Respondent insurance company. What was sent was a letter indicating that they could not provide the films and pictures because it was not in their possession but in the possession of Doshi Diagnostics and Excel Surgery Center. They attach medical authorizations for Respondent to use to help to obtain those items. Applicant never received any response from Respondent after June 2,2015 . There was never any other correspondence received from Respondent. The claim was neither paid nor denied.

I find in favor of Applicant here. The evidence is clear here that Applicant complied with the verification requests and that there was never a response from Respondent after the June 2, 2015 compliance. As such, I find the claim overdue
and owing and I find in favor of Applicant.  So too here, I find that Applicant complied with the verification requests and there never was a response from Respondent. The claim is overdue and owing.

Master Arbitrator rubber stamped it.  Award was over $5,000.00

Trial de novo was commenced.  Court held as follows:

(1) Based upon the affidavit of Regina Abbatiello, plaintiff’s no-fault claims adjuster, plaintiff establishes that the surgery was performed on March 24, 2015, and the bill from defendant was received on April 9, 2015. The bill was delayed pending receipt of operative photographs and MRI films. By written request dated March 20, 2015, plaintiff requested, inter alia, “a copy of the R/Shoulder MRI films” from Doshi Diagnostic Imaging Services. Apparently, plaintiff did not receive the MRI films, and it sent a second written verification request to Doshi dated April 20, 2015.

Not having received the MRI films, plaintiff, by written requests dated April 28, 2015 and May 28, 2015, notified defendant and requested a copy of the right shoulder MRI films from defendant. The letters are addressed to Jonathan Lewin MD PC, and they state in relevant part, “[a]lso awaiting a copy of the R/Shoulder MRI films from Doshi Diagnostic MRI which were requested from the MRI facility and the doctor’s office. Once received the claim will be reviewed and processed.” Ms. Abbatiello’s affidavit avers that the MRI films were never received from either Doshi or from defendant Lewin.

Based upon the foregoing, plaintiff has established its prima facie entitlement to summary judgment as a matter of law that the claim is not overdue, since the additional verification remains outstanding, and that defendant is not entitled to reimbursement for no-fault benefits a/a/o Mary King related to the motor vehicle accident that occurred on December 17, 2014

(2) The affidavit of Mike Manzo, billing manager for MD Capital Advisors, states that MD Capital Advisors is the third party billing company for FJ Orthopedics PLLC, which is not a party to this action. In fact, the affidavit appears to have been submitted in connection with the prior arbitration entitled FJ Orthopedics PLLC / Mary King, Applicant and Global Liberty Insurance Company of New York. Thus, it is unknown to the Court how Mr. Manzo’s affidavit is germane to defendant Lewin named in this action. Assuming, however, that his affidavit is relevant, because it relates to the assignor in this matter (Mary King), Mr. Manzo speaks to the issue of the surgical photographs, which is not the subject of the summary judgment motion. Moreover, his affidavit is vague as to “the verification response” and “requested documents” allegedly submitted to plaintiff on June 2, 2015; however, the response was likely the letter on FJ Orthopedics letter head, signed by Mike Manzo, dated May 21, 2015, which is annexed to Manzo’s affidavit. That letter states that, “your request for MRI films and color photos of surgey (sic) for the above mention (sic) claim is overly burdensome as neither our client FJ Orthopedics nor the patient Mary King does not (sic) have access to the actual films. . . The films are in Doshi Diagnostic’s possession . . . therefore, we enjoin you to obtain the actual films . . . with the attached medical authorizations signed by Mary King.”

Court conclusion

(3) Defendant’s submissions do nothing to raise a triable issue of fact as to the failure to provide the MRI films, nor do the submissions controvert the established fact that plaintiff attempted to get the films directly from Doshi first, by sending a first request and then a follow-up request, and when it received no films, plaintiff notified defendant of the request. Plaintiff sent the verification requests directly to Doshi, and plaintiff also timely informed the applicant, the defendant in this action, of the nature of the verification sought, and from whom it was sought, after the initial requests went unsatisfied (Doshi Diagnostic Imaging Servs. v. State Farm Insurance Co., 16 Misc 3d 42[App Term 2d Dept 2007]; see also Advantage Radiology, P.C. v. Nationwide Mutual Insurance Company, 55 Misc 3d 91 [App Term 2d Dept 2017]).

(4) The fact that FJ Orthopedics, albeit not a party to this action, may have provided plaintiff with a HIPPA authorization for the films does not constitute a response to the request for verification. Plaintiff did not need a HIPPA authorization to obtain the films (Eagle Surgical Supply, Inc. v. GEICO Insurance Co., 41 Misc 3d 134[A][App Term 1st Dept 2013]), and in any event, FJ Orthopedics’ statement made in its May 21, 2015 letter that the request “is overly burdensome” is evidence of its lack of motivation to satisfy plaintiff’s verification request.

Defendant has failed to raise a material, triable issue of fact; therefore, plaintiff’s summary judgment motion is granted.

The Court correctly held that it is not enough to object to verification.  If the carrier requests the verification from the party who has it, the apt Applicant must at times engage in an effort to procure it.  Had the carrier requested the MRI films from the surgeon,  an objection letter was tendered and the carrier ignored that letter, then it would be a different fact pattern and the surgeon should win that fact pattern.

We shall see if AAA picks up on this distinction or if we are going to continued to be bombarded with the famous line without context from 13 years ago: “[a]n insufficient response requires action by the insurance company to either deny the claim for failure to provide all the requested information or, more appropriately in light of the goals of the No Fault law, to send a follow up verification request, acknowledging the material received and further requesting the omitted material.” All Health Med. Care, P.C. v. Gov’t Employees Ins. Co., 2 Misc. 3d 907, 913 (Civ. Ct. Queens Co. 2004)

Additional Verification – proper response

Excel Surgery Ctr., L.L.C. v Fiduciary Ins. Co. of Am., 2017 NY Slip Op 50408(U)(App. Term 2d Dept. 2017)

“[i]n response to defendant’s verification requests, plaintiff informed defendant, by letter, that plaintiff was an ambulatory facility and, as such, did “not possess all the medical records,” advising defendant to “request any additional information directly from the treating provider. Plaintiff’s response did not refer to any specific request or state that plaintiff was not in possession of any of the items requested by defendant. Thus, plaintiff did not demonstrate that it had sufficiently responded to defendant’s verification requests”

So assume Plaintiff said we do not have the exact record?  Different result as that would place the case into the Mt. Sinai v. Autoone category.

The feigned verification response does not slice it – a break from the law as certain arbitrators construe it

St. Barnabas Hosp. v Government Employees Ins. Co., 2017 NY Slip Op 27056 (2d Dept. 2017)

(1) “The Plaintiff’s position that the verification request was improper because it is not required under the insurance regulations or no fault law is without merit. The Defendant, GEICO, referenced Circular Letter No. 4 dated January 12, 2011, issued by the State of New York Insurance Department, in its original request for additional verification. The purpose of the Circular Letter is to advise no-fault insurers and health insurers of the amendment of Insurance Law §5103(b)(2) and to interpret the regulations related thereto.”

(2) “The Court also disagrees with the Plaintiff’s contention that it fully responded to the Defendant’s verification requests by merely stating, “[t]he patient received ‘Necessary Emergency Health Services’ during his admission at the hospital.” The Plaintiff’s response is vague in that it fails to delineate whether some, most or all of the services were in fact “necessary emergency health services”.

(3) Thus, as the Defendant correctly maintains, the Plaintiff’s initial claim for payment was premature and was not complete until the Defendant received additional verification of the claim as requested (See 11 NYCRR 65-3.8(a)(1), (b)(3); Nyack Hosp. v. State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2d Dept. 2005]).

(4) Where, as here, the insurer presents sufficient evidence that it timely requested additional verification and the hospital fails to provide the information requested, the complaint must be dismissed as premature (St. Vincent’s Hosp. of Richmond v. American Transit Ins. Co.. 299 AD2d 338 [2d Dept. 2002]).

The context of the within matter involves the when the insurance carrier is liable to a hospital for no-fault coverage following a patient’s “stabilization”.  What is noteworthy here is that in response to verifications, the hospital objected and GEICO failed to communicate with the hospital.  Most arbitrator’s apply a 13 year old Civil Court case, stating that an insurance carrier must respond to an objection at its own peril.  All Health Med. Care, P.C. v. Gov’t Employees Ins. Co., 2 Misc. 3d 907, 911, (Civ. Ct. Queens Co. 2004).  This case is contra.  And, it makes sense.  If the provider sends documentation that is unresponsive to the verification, then why does the insurance carrier have to play “ping pong”.  Upon objecting to a verification or providing unresponsive information. the claim is ripe for arbitration or litigation.

In this case, the Court held that objection lacked merit, did not require the insurance carrier to do anything further, and dismissed the claim.  In my mind, that is the right call.

Verification lack of response affirmed/Judge Ciaffa’s opinion prevails

Advantage Radiology, P.C. v Nationwide Mut. Ins. Co.. 2017 NY Slip Op 27061 (App. Term 2d Dept. 2017)

“Plaintiff’s contention that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter lacks merit, as there is no such requirement, where, as here, the party from whom the verification is sought is the plaintiff, rather than another person or entity (see GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42, 44 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

To the extent plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel, we disagree. Insurers are obligated to comply with the no-fault regulations, which require that both the initial and follow-up verification requests be sent to the party from whom the verification is sought (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]) and, thus, defendant cannot be penalized for sending the verification requests to plaintiff notwithstanding the request from plaintiff’s counsel”

The opinion here follows the opinion of Former Judge Ciaffa in  Advanced Neurological Care, P.C. v. State Farm Mut. Auto. Ins. Co., 38 Misc. 3d 750, 754-55 (Dist. Ct. Nassau 2012).

The rub for the providers is that when their collection attorney/biller sends a letter of rep, the failure to mail the verification letters to the attorney is not necessary.  Of course, this could also mean that IME and EUO letters (verification requests)  do not need to be sent to counsel for the EIP/provider to be deemed valid.  The above-notwithstanding, the better practice is to mail the letters to the EIP/provider and any counsel representing them.

The By-Report

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2017 NY Slip Op 50101(U)(App. Term 2d Dept. 2017)

I recall prior to heading to a miscellaneous part in Supreme Court with guest visits to Civil Court, Judge Cohen found that a by-report code required compliance in order to make a code compesnsable or a billing overdue.  I believed he was wrong and the Appellate Term confirms.

“The record reflects that plaintiff submitted three claim forms to defendant which included charges for 21 sessions of moxibustion, under code 97039, which is described as “Unlisted modality (specify type and time if there was constant attendance)” and for one session of acupressure, under code 99199, which is described as “Unlisted special service, procedure or report.” The workers’ compensation fee schedules do not assign a relative value to either of those codes, but instead have assigned them a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff did not provide such documentation with its claim forms and defendant did not, within 15 business days of its receipt of the claim forms, request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). As defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in order to review plaintiff’s claims for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules, defendant was not entitled to summary judgment dismissing so much of the complaint as sought [*2]to recover for services rendered under those codes”

The famous by-report.  The Court properly held that a by-report is verification issue.  This should not shock anyone; yet, I still see denials and argument based upon the failure to adhere to the by-report guidelines.

Mailed to the wrong address – okay

Allstate Insurance Co. v. Longevity Medical Supply, Inc., 2272/16 (Civ. Ct. NY Co. 2016)

This case was sent to me from Steven F. Palumbom Esq., of Gabriel & Shapiro, LLC.  In this case, the bill was mailed to one of Allstate Insurance Company’s addresses.  Allstate argued that it was not sent to the proper address for No-Fault correspondence, yet, failed to provide an affidavit of non-receipt.

Longevity lost before the lower arbitrator.  Longevity filed a demand for master arbitration, and the award was reversed.  Allstate filed a Petition to set aside the award of the master arbitrator.  The Petition was denied and the award of the master arbitrator was confirmed.

The case I think can be disposed of under the theory of 65-3,5(b).

While this provision deals with additional verification requests (this case involved the NF-3 or its functional equivalent), the regulation is instructive.  It states:  “If a claim is received by an insurer at an address other than the proper claims processing office, the 15 business day period for requesting additional verification shall commence on the date the claim is received at the proper claims processing office. In such event, the date deemed to constitute receipt of claim at the proper claim processing office shall not exceed 10 business days after receipt at the incorrect office.”  (the bold is obviously mine)

Thus, Allstate’s position lacked palpable merit.

More verification non receipt issues

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., 2016 NY Slip Op 51532(U)(App. Term 2d Dept. 2016)

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co.. , 2016 NY Slip Op 51533(U)(App. Term 2d Dept. 2016)

Renelique v American Tr. Ins. Co., 2016 NY Slip Op 51495(U)(App. Term 2d Dept. 2016)

Mollo Chiropractic, PLLC v Farmington Cas. Co., 2016 NY Slip Op 51496(U)(App. Term 2d Dept. 2016)

TAM Med. Supply Corp. v American Tr. Ins. Co., 2016 NY Slip Op 51505(U)(App. Term 2d Dept. 2016)

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., 2016 NY Slip Op 51506(U)(App. Term 2d Dept. 2016)

TAM Med. Supply Corp. v American Tr. Ins. Co., 2016 NY Slip Op 51507(U)(App. Term 2d Dept. 2016)

TAM Med. Supply Corp. v American Tr. Ins. Co., 2016 NY Slip Op 51513(U)(App. Term 2d Dept. 2016)

LMS Acupuncture, P.C. v Nationwide Ins., 2016 NY Slip Op 51537(U)(App. Term 2d Dept. 2016)

(and 3 others)

What are the odds off all these insurance carriers stating verification was received and that not being the case?  Just wondering.

The verifications were not mailed

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co., 2016 NY Slip Op 51443(U)(App. Term 2d Dept. 2016)

These were affidavits I inherited from prior counsel.  They explained NF-10s but did not mention Additional Verification requests.  There was a residual catch all, but this did not work.  But I mention this loss because after seeing it a few years ago, the affidavits were instantly fixed.  This should be contrasted to all of the Alrof v. Safeco sightings we see where the court has already shot down certain affidavits and nobody attempts to fix, alter or ameliorate them.  When people learn from their errors, they should be commended.  Those that constantly repeat their mistakes are doomed to a life of mediocrity.