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.

DJ went south

Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op 00810 (1st Dept. 2018)

In the approximately  10 years, since Unitrin brought the notion of the condition precedent DJ.  And now, 9 years later, it has almost been destroyed on a less than stellar record.  You should read the record and then look at the oral argument (nobody asked a question except to point certain documentation was missing and it continued with the apology that it was a long day).

Point I

“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65—3.5(b) and 11 NYCRR 65—3.6(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5(b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.”

Two problems here.  First this was a provider EUO.   The record discloses, establishes and  discuss the fact that the patient EUO gave cause (allegedly) for the provider EUOs.  Yet, no discussion of that timeline was set forth in the motion (see Quality v. Utica – allowing the tolling of a provider EUO based upon a prior patient EUO).  I don’t get it.  the EUO process started before the received billing.  Had this been discussed, the 3.5(b) issue would be non-existent and I think the case would have been affirmed.

Also, did counsel discuss the one day off the back for each day between 15 business days and 30-calendar days?  I sense that discussion did not occur.

Point II

Now, a bad global denial is fatal? ” The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).”

It is like anything else – some cases need to settle.  This was one of them – watch the argument and you will see what I mean.  Luckily, Manoo settled or the First Department DJ as we know it would probably be dead.  That was a complete disaster in motion.

I think Defendant is entitled to attorney’s fees if the EIP was a driver or insured.

Many issues here will await another fully contested appeal.





EUO no-show: Declaratory Judgment substantiated

Hertz Vehs. LLC v Significant Care, PT, P.C., 2018 NY Slip Op 00456 (1st Dept. 2018)

The affidavit of the Hertz claims handler personally assigned to this claim, as corroborated by the NF-10 denial of claim form (Wausau Bus. Ins. Co. v 3280 Broadway Realty Co. LLC, 47 AD3d 549, 549 [1st Dept 2008]; see also American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept 2015]), stated that the date Pavlova’s bill was received by the insurer was July 18, 2014. Hertz therefore established its compliance with 11 NYCRR 65-3.5(b) by generating the first EUO scheduling letter within 15 days of receipt of the provider’s bill, and compliance with 11 NYCRR 65-3.6(b), by generating the second EUO scheduling letter less than 10 days after the first nonappearance on August 7, 2014.

Hertz also established proof of mailing because it included an affidavit of service, which was executed by the person who mailed the EUO notices and who attested that each was mailed by regular mail to the address provided on the claimant’s claim form, as well as to claimant’s attorney, in a “postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York” (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]; see also Deluca v Smith, 146 AD3d 732, 732 [1st Dept 2017]).

Pavlova’s argument, raised for the first time on appeal, that the second EUO nonappearance date was not a non-appearance because the claimant’s counsel was present, and because there was a statement on the record which not only acknowledged claimant’s nonappearance, but also agreed to reschedule the EUO, is unpreserved and unavailing.

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.

Charley Deng called the wrong number

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 51764(U)(App. Term 2d Dept. 2017)

“While plaintiff’s owner asserts that, upon receiving the EUO scheduling letters, he called defendant’s investigator and left a message asking to reschedule the EUOs, plaintiff nevertheless failed to raise a triable issue of fact, since the person plaintiff’s owner allegedly called was not the investigator identified in defendant’s EUO scheduling letter as the person to be called in case of any issue, and the phone number allegedly called was not the same as the phone number set forth in defendant’s EUO scheduling letter.”

Had the affidavit listed the person who should have been called, then a triable issue of fact would have been established?

Timeliness of the EUO relative to the billings (again)

Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co., 2017 NY Slip Op 51751(U)(App. Term 2d Dept. 2017)

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

Active Care Med. Supply Corp. v Ameriprise Auto & Home, 2017 NY Slip Op 51835(U)(App. Term 2d Dept. 2017)

Neptune again..

(From Sama)

“Defendant’s moving papers failed to establish that the first EUO scheduling letter that defendant had sent to plaintiff was timely with respect to the claims underlying the first and second causes of action, as defendant stated that the letter had been sent more than 30 days after defendant had received those claims

Proof of no-show?

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co., 2017 NY Slip Op 51732(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s contention, the proof submitted by defendant established that plaintiff had failed to appear for duly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Furthermore, “the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law”

I would love to see someone make a motion to compel the law firm that sent the EUO letters (and represents the carrier on this claim) to comply with a non-party subpoena to substantiate the basis of the no-show.   see CPLR 3212(f);  NYCCCA 1201.  It would be an interesting transcript or set of transcripts.

NYCCCA 1201 (” subpoena and a subpoena duces tecum, and the powers of the court with reference to them, shall be governed by the CPLR, except that they shall be served only within the city of New York or in a county adjoining such city.  But the court, upon motion of a party which need not be on notice, may issue either kind of subpoena and permit its service elsewhere outside the city of New York if satisfied that the interests of justice would be served thereby.

Non objected to EUO

Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 2017 NY Slip Op 51518(U)(App. Term 2d Dept. 2017)

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 claims” (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]).”

I am still waiting for this Court to answer the following question: What happens when the medical provider objects to the EUO?  No answer on this one yet.

EUO no-show sustained

Sharp View Diagnostic Imaging, P.C. v Esurance, 2017 NY Slip Op 51466(U)(App. Term 2d Dept. 2017)

The letter “delaying the bill” as opposed to the “letter seeking verification”

“Plaintiff argues on appeal that defendant improperly relied on letters that “did not seek any documents or information” from plaintiff in order to toll defendant’s time to pay or deny the claims at issue. However, defendant alleged that it had sent letters scheduling examinations under oath (EUOs) (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which letters were attached to defendant’s cross motion, and plaintiff has raised no issue with respect to the sufficiency of those letters (see Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).”

The Appellate Term in prior cases is to blame for allowing this argument to remain as that Court never delineated the former from the latter.  From what i have seen, a delay letter stating the bill is delayed for an EUO coupled with proof of the EUO letter addresses the issue. On a “no-show” case, the issue should not come up as the carrier needs to present all of this evidence to meet its case.

But when a bill is delayed for an EUO, the Assignor attends and the bill is denied on medical necessity grounds, this issue is more acute.  This is because the document prepared for the carrier – whether it be arbitration or litigation – will often rely on the bill delay, an assertion that the EIP attended the EUO, a denial and the peer-IME report.  Missing is the scheduling letter, proof of its mailing and the EUO transcript.