120-day rule rebutted

Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51648(U)(App. Term 2d Dept. 2018)

“Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate prima facie that it had timely mailed initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that it had not received the requested verification; and that it had timely denied the claim on that ground. However, as plaintiff further argues, 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 id.). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification.”

Has anyone sought to ask the Second Department to review these cases?  i am hard-pressed to imagine that an affidavit without documentary support is sufficient to raise an issue of fact.  Or, are we all sheep?

120-day rule crumbles

Matter of Progressive Cas. Ins. Co. (Elite Med. Supply of N.Y., LLC), 2018 NY Slip Op 04122 (4th Dept. 2018)

“In his awards, the master arbitrator found that the arbitrator had misapplied the 120-day rule, reasoning that, pursuant to that rule, a claimant who responds within the requisite 120-day period with a “reasonable justification” is permitted to have that objection decided by the arbitrator and, if overruled by the arbitrator, is to be afforded the opportunity to produce the requested information and allow the insurer to base its decision on such information (11 NYCRR 65-3.8 [b] [3]). Contrary to petitioners’ contention, the master arbitrator did not impermissibly perform a de novo review of the evidence. Rather, the master arbitrator vacated the arbitrator’s awards based on “an alleged error of a rule of substantive law” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828, 829 [2d Dept 2017] [internal quotation marks omitted]). Thus, we conclude that the court’s decision to uphold the master arbitrator’s awards in this case was rational (cf. id.).”

This case highlights how important it is to respond and object to verification demands.  The worst thing that can happen, should an objection be lodged, is that the denial of the claim is without prejudice.  I would sense in certain circumstances an objection to an attendance at an EUO landing in a denial could also be a dismissal without prejudice.  The 120-day rule has been neutered and it may have ramifications far beyond 65-3.5 and 65-3.6.

There is no safety valve for a late follow-up

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co.,  2017 NY Slip Op 50939(U)(App. Term 2d Dept. 2018)

I think I failed to specifically comment on this case.  In light of Atlantic Radiology, we now have a difference of opinion between the courts.

“In the papers submitted in support of its motion, defendant admitted receiving plaintiff’s claim form. In an affirmation, defendant’s counsel established that an initial EUO scheduling letter had been timely mailed to plaintiff’s assignor (see Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211 [2008]; 11 NYCRR 65-3.5 [b]), but further demonstrated that the follow-up EUO scheduling letter had not been timely mailed (see 11 NYCRR 65-3.6 [b]).  Contrary to defendant’s contention, 11 NYCRR 65-3.8 [l] specifically states that it does not apply to follow-up requests for verification. As a result, because defendant’s follow-up EUO scheduling letter was untimely, the NF-10 denial of claim form which defendant eventually sent was untimely

No need to send letter to attorney

Recover Med. Servs., P.C. v Ameriprise Ins. Co.,  2017 NY Slip Op 51892(U)(App. Term 2d Dept. 2017)

Upon review of my blog, I failed to note this case.

With respect to the remaining three bills, there is no merit to plaintiff’s argument that, pursuant to 11 NYCRR 65-3.6 (b), defendant was required to send plaintiff’s attorney a delay letter upon sending the follow-up EUO scheduling letter to plaintiff. The requirement to send a delay letter arises only where the verification is sought from a person or entity other than the plaintiff (see Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91, 53 N.Y.S.3d 452 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see also GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 964 N.Y.S.2d 59, 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]). Here, where defendant sought plaintiff’s EUO, there was no such requirement.”

This case is just an off shoot of Advantage Radiology.

Verification issues

Atlantic Radiology Imaging, P.C. v Travelers Prop. Cas. Co. of Am., 2018 NY Slip Op 50053(U)(App. Term 1st Dept. 2018)

“It being undisputed on this record that plaintiff failed to fully respond to the defendant-insurer’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claims as premature (see St. Vincent Med. Care, P.C. v. Country Wide Ins. Co., 80 AD3d 599, 600 [2011]). Even accepting plaintiff’s speculative assertion that defendant’s followup verification request was issued two days beyond the 10-day period prescribed by the regulation (see 11 NYCRR 65-3.6), this does not, under the circumstances here presented, deprive defendant of the benefit of the tolling of the 30-day period during which an insurer must pay or deny the claim (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; Triangle R Inc. v Praetorian Ins. Co., 30 Misc 3d 129[A], 2010 NY Slip Op 52294[U] [App Term, 1st Dept 2010]).”

Two points to be fleshed out here.  First, all verification was not received.  Problem.  Second, the follow-up can be late without consequence.  I sense divergence from the Second Department (AT).

Initially, a late follow-up according to the AT second department eliminated the toll.  The AT First says otherwise.

Second, how do you harmonize the line of AT 2nd cases saying that the affidavit of compliance with verification is sufficient whereas this case which seems to look for record support regarding received verification?

Partial response to verification insufficient

Doctor Goldshteyn Chiropractic, P.C. v Travelers Indem. Co., 2017 NY Slip Op 51816(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.

Contrary to plaintiff’s contention, the record demonstrates that defendant did not receive requested verification and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Indeed, on appeal, plaintiff notes that it had partially responded to defendant’s verification request

Again, the “partial response paradigm” appears to be fatal to the medical provider.  I suppose the correct record has to be established to see if an objection to verification will destroy an insurance carrier’s summary judgment motion?


Non responded to verification fatal to plaintiff’s case

City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co., 2017 NY Slip Op 51839(U)(App. Term 2d Dept. 2017)

“In support of plaintiffs’ motion for summary judgment and in opposition to defendant’s cross motion, plaintiffs submitted affirmations from plaintiffs’ counsel and annexed purported verification responses which expressly stated that plaintiffs were not providing responses to some of defendant’s verification requests. As a result, contrary to plaintiffs’ contention, the record demonstrates that defendant had not received all of the requested verification and, thus, that the action is premature”

This is interesting because we are left to reason that certain verification was objected to and certain verification was provided.  The Court held that the failure to provide the requested verification (or to indicate where the verification could be obtained) renders the action premature.  This Court has often stated that the failure to fully comply with verification renders the matter premature.

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)