Provider EUO letter – serve to delay the bills

Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51759(U)(App. Term 2d Dept. 2018)

(1) “Plaintiff does not dispute that a letter scheduling its EUO was mailed to plaintiff on December 13, 2011, or that a follow-up scheduling letter was timely mailed. Contrary to plaintiff’s main contention on appeal, once that initial letter was mailed to plaintiff, the toll of defendant’s time to pay or deny plaintiff’s claims applied to any claim form submitted by plaintiff for the same assignor and accident subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs”

(2) “While plaintiff notes that the first EUO scheduling letter was mailed 16 business days after defendant’s receipt of two bills on November 18, 2011, which is one day later than is set forth in the Insurance Department Regulations (11 NYCRR 65-3.5 [b]) for the time to seek verification, it fails to explain why this should result in even the partial denial of defendant’s motion, since the denial of claim forms with respect to those two bills were mailed 21 days after plaintiff’s failure to appear for the second EUO (see 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the verification request was late]).”

Well, Plaintiff  argued that in Unitrin v. All About Health, the First Department construed 15 business days to mean 15 calendar days and did not apply the 65-3.8(l) day for day logic.   But the Appellate Term found that logic to be unavailing.  

Objective basis?

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co., 2018 NY Slip Op 51773(U)(App. Term 2d Dept. 2018)

“Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, [*2]113 AD3d 596, 597 [2014]”

Objective reasons?  Non-sense.

Timely EUO denial

Acupuncture Now, P.C. v American Commerce Ins. Co., 2018 NY Slip Op 51768(U)(App. Term 2d Dept. 2018)

“However, plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the first cause of action based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claim underlying that cause of action, and, therefore, the request was a nullity as to that claim (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], [*2]2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

Reoccurring theme.

Objective reasons not necessary to prove an EUO no-show defense

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co., 2018 NY Slip Op 51653(U)(App. Term 2d Dept. 2018)

“Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d, 11th & 13th Jud Dists 2018]).”

One need to forget this lesson.  That said, a proper and timely objection changes the calculus.

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51655(U)(App. Term 2d Dept. 2018)

Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]”

A basic EUO no-show

Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51552(U)(App. Term 2d Dept. 2018)

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had [*2]twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff does not challenge that defendant demonstrated its prima facie entitlement to summary judgment, but rather argues that plaintiff raised a triable issue of fact in opposition. However, as plaintiff’s argument lacks merit, the Civil Court should have granted defendant’s motion for summary judgment. We further note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).”

Dilemma and dogma

Hertz Vehicles, LLC v Best Touch PT, P.C.,2018 NY Slip Op 04854 (1st Dept. 2018)

(1) “Plaintiff failed to meet its burden of filing “proof of the facts constituting the claim” for a default declaratory judgment (CPLR 3215[f]) against the medical provider defendants, i.e., proof establishing that the notices of examination under oath (EUO) that it served on those defendants complied with the timeliness requirements of 11 NYCRR 65-3.5(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 [1st Dept 2017]; Natl. Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). An insurer must request any “additional verification . . . to establish proof of claim” within 15 business days after receiving the “prescribed verification forms” it forwarded to the parties required to complete them (11 NYCRR 65-3.5[a], [b]). As none of the motion papers, including the affidavit by plaintiff’s claims adjuster, annexes or gives the dates of the prescribed verification forms or other proofs of claim submitted by the medical provider defendants, it is not possible to determine whether the EUO notices were sent to them within 15 business days of plaintiff’s receipt of the form”

What was interesting is in the last appeal of a lost DJ, the Court appeared to walk around 65-3.5 and 65-3.6 when the issue involved a default.  The rationale could be found in the dissent of Longevity and sub silentio set forth in the majority opinion in the same.  This case now applies the summary judgment standard to defaults.

(2) “Plaintiff’s argument on appeal that the providers’ bills are “prescribed verification forms” and its attempt to relate the deadlines applicable to one defendant’s EUO requests to another defendant’s submission of claims documentation or appearance for an EUO are unpreserved and, in any event, unsupported.”

Certain defense attorneys have tried to use the bootstrap method to establish timeliness.  I never bought it.

(3)  “The court erred in denying plaintiff’s motion for a default judgment against Bellevue on the ground that the motion did not contain any letter reflecting that Bellevue’s EUO transcript was sent to her for signature. The motion does contain such a letter, dated March 14, 2016, as well as a follow-up letter, dated April 20, 2016, and accompanying affidavits of service. As the [*2]failure to submit to an EUO and “subscribe the same” violates a condition precedent to coverage (see 11 NYCRR 65-2.4[c][2]), plaintiff provided adequate proof of its claims against Bellevue (see DTG Operations, Inc. v Park Radiology, P.C., 2011 NY Slip Op. 32467[U], *5-6 [Sup Ct, NY County 2011]”

This should worry anyone because I highly doubt that DFS (absent a Thrasher showing) ever advocated for a voiding of the policy due to the failure to sign a transcript.  I see a circular letter coming on this issue, similar to when DFS issued a circular letter to overturn Soundshore.

 

EUO no-show case/objective reasons not necessary/ what’s next?

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2018 NY Slip Op 50864(U)(App. Term 2d Dept. 2018)

“Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [*2][2006]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.”

The unanswered question is assuming that the provider sets forth valid reasons for not attending the EUO and a disclaimer is issued, what is the remedy?  Does the insurance carrier always prevail?  Or, is the disclaimer without prejudice to compelling the entity to appear for an EUO?  I think the new Fourth Department case of Progressive v. Elite and the older Second Department case of Park v. Long Island call into question the remedy for this discreet type of breach.  But that is a discussion for another day.

 

What happened to those EUO letters? What happened to the IME letters? Where are those denials?

Parisien v Maya Assur. Co., 2018 NY Slip Op 50771(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling examinations under oath (EUOs) had been properly addressed and mailed”

Parisien v Maya Assur. Co., 2018 NY Slip Op 50766(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed ”

Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 2018 NY Slip Op 50775(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed ”

Mind & Body Acupuncture, P.C. v Allstate Ins. Co., 2018 NY Slip Op 50779(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed””

Remedial Med. Care, P.C. v Park Ins. Co., 2018 NY Slip Op 50769(U)(App. Term 2d Dept. 2018)

“With respect to the remaining bills, plaintiff correctly argues that defendant failed to establish that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed”

Where was the partner?

Active Care Med. Supply Corp. v Metlife Auto & Home, 2018 NY Slip Op 50772(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at an initial and follow-up EUO “

Neptune EUO scheduling rule on display again

Healthway Med. Care, P.C. v American Commerce Ins. Co., 2018 NY Slip Op 50733(U)(App. Term 2d Dept. 2018)

“However, plaintiff correctly argues on appeal that defendant failed to demonstrate that it [*2]was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims”

No matter how many times you try to appeal the same issue of law, the same result happens.  Yet, under First Department precedent (Unitrin v. All of NY), the failure to mail the EUO letter within 15-calendar days of receipt of the bill is fatal.