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.

Verification non-receipt – Partial response insufficient

Compas Med., P.C. v Travelers Ins. Co., 2016 NY Slip Op 51441(U)(App. Term 2d Dept. 2016)

Contrary to plaintiff’s contention, defendant was not required to pay or deny plaintiff’s claims upon receipt of a “partial response” to defendant’s verification requests (see 11 NYCRR 65-3.8 [a] [1]; [b] [3]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004] [“A claim need not be paid or denied until all demanded verification is provided”]). To the extent that plaintiff asserts that certain of defendant’s requests were inappropriate, that argument also lacks merit, as plaintiff did not allege, much less demonstrate, that it objected to such requests during claims processing (see Rogy Med., P.C. v Clarendon Natl. Ins. Co., 43 Misc 3d 133[A], 2014 NY Slip Op 50629[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [“inaction is an improper response to a verification request, and therefore plaintiff’s objections regarding the requests will not now be heard”]).”

Consider two examples where this plays out.  Example one: Plaintiff says: I do not have these records search somewhere else and the defendant failed to search.   This would be a loser to the carrier.

Example two: The carrier sought verification directly from the correct parties and following this Plaintiff says: “I do not have these records search somewhere else and the defendant failed to search.”  This would be at best a partial response or a non response since the carrier has done everything it is supposed to do.

I raise these two issues because they play out often.   AAA gets example #1 correct.  AAA often gets example #2 incorrect.

IME no show – complied with Neptune, AT v. Vance and 3.5(b); 3.6(b)

“Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant further demonstrated that, upon receipt of the claims, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Finally, defendant established that, upon receiving the requested verification, it had timely denied the claims at issue based upon the assignor’s failure to appear for IMEs

This is a case where it appears the first IME date was scheduled within 30-days of receipt of the billing.  Also, the billing was delayed pending verification and the carrier properly waited for the verification prior to denying the billing on the policy violation.


The verification affidavits again

Great Health Care Chiropractic, P.C. v Hereford Ins. Co., 2016 NY Slip Op 50910(U)(App. Term 2d Dept. 2016)

“In support of the cross motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).”

No further comment.

Enough with the Rybak verification affidavit

Great Health Care Chiropractic, P.C. v Hereford Ins. Co., 2016 NY Slip Op 50858(U)(App. Term 2d Dept. 2016)

This is my plea to those at the Appellate Term who read this blog.  You seriously need to stop finding triable issues of fact on verification cases because: “However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant”

I would think if the law requires a party to tender their proof (one way or another) in support of or in opposition to a motion for summary judgment, then that proof should be tendered.  If verification requested is a photo of a sunset over the Atlantic ocean and the affidavit says it was “mailed”, what should be annexed as an exhibit?  A photo of the sunset over the Atlantic ocean.

But aside from trying to get the Appellate Term to hear reason, I put the blame on this predicament on the carriers.  Why?  Nobody seeks leave to the Appellate Division.  A well support leave application would be granted.  What is a well supported leave application?  It is EVERY case that this has come up (we are at 100 now).  A copy of the “affidavit” of compliance and a statement that this is used in every verification case will probably cause the App. Div. to look into these cases.

While I try to solve these proof problems at the Appellate Division, this will surprise you to know that all of my Rybak verification cases have settled or have been resolved.  My hands are tired, otherwise I would have been on top of this awhile ago.

FYI – my next issue is rocket docket, 2106 (again) and collateral estoppel of PIP awards on UM cases and Thrasher.  I have a busy Appellate Division calendar on top of running a business.