"Due consideration" an element to a late notice claim.

Bronx Expert Radiology, P.C. v NYC Tr. Auth., 2011 NY Slip Op 51571(U)(App. Term 1st Dept. 2011)

Prima facie defenses to a 45-day or 30-day rule violation now requires “due consideration” to the explanation the provider gave.  So the affidavit now reads:  “We considered the excuse, and found it unavailing because….”  That should do the trick.

“Defendant’s cross motion for summary judgment dismissing the complaint was properly denied as defendant failed to establish that it gave “due consideration” to the explanation offered by plaintiff for the late submission of its no-fault claims as required by the insurance regulations (see 11 NYCRR 65-3.5[l]; Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 863 [2003]; Bronx Expert Radiology v Clarendon Natl. Ins. Co., 23 Misc 3d 133[A], 2009 NY Slip Op 50747[U] [2009]).”

What went wrong here?

Aminov v Travelers Prop. Cas. Ins. Co., 2010 NY Slip Op 51723(U)(App. Term 2d Dept. 2010)

“While the complaint listed the total amount allegedly owed to plaintiff, it did not list the dates that the subject medical services were provided, and the subject claim forms were not annexed to the complaint. Therefore, while defendant asserted that it had never received the claim forms, such assertion appears to be belied by the fact that defendant was aware of the dates the medical services were rendered, and it is unclear from what source defendant acquired this knowledge if not from the claim forms. In light of the foregoing, upon the instant motion, defendant failed to establish as a matter of law that plaintiff had failed to submit the subject claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1).”

As a practitioner, nothing bothers me more than a party’s failure to specify the date(s) and amount(s) of the transactions.  One could even say that the CPLR requires this and the complaint should have been thrown out on this ground.  CPLR 3016(f); 3211(a)(7).

In any event, the carrier should have sought discovery as to the bills and moved accordingly.  Also, how did the 180 and 45 day rule come about here insofar as these are precludable defenses.  Were any denials issued?  Very strange.

45-day rule – insufficiency of justification

AR Med. Rehabilitation, P.C. v MVAIC, 2010 NY Slip Op 50828(U)(App. Term 2d Dept. 2010)

“It is undisputed that plaintiff was required to submit its claim form to MVAIC within 45 days after the services at issue were rendered and that plaintiff did not do so (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). MVAIC’s denial of plaintiff’s claim for $3,903.92, based upon its untimely submission, also [*2]informed plaintiff that it could excuse the delay if plaintiff provided “written justification” for the delay (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Nir, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U]). In opposition to MVAIC’s motion for summary judgment, plaintiff did not establish that it had provided MVAIC with a written justification for its untimely submission of the claim form seeking the sum of $3,903.92.”

Key cite the NY Arthroscopy case, a First Department case.  It appears that the Appellate Term Second Department cites that First Department case more than any other case for the proposition that Plaintiff failed to offer a sufficient excuse to defeat an insurance carrier’s late notice motion.  I hate to say this, but I will anyway.  Why does MVAIC have it both ways?  First, the failure to qualify someone as eligible to receive benefits is a non-precludable condition precedent to coverage.  This is, to the best of my knowledge, the only non precludable condition precedent that exists in no-fault law.  Second, should the provider or the injured person’s attorney attempt to qualify the injured person but the 45-days to submit the bill elapses, then MVAIC can deny all benefits.

The provider is under an extremely tight leash to explain why a bill was untimely submitted

Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 2010 NY Slip Op 50449(U)(App. Term 2d Dept. 2010)

“The denial of claim form adequately advised plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that late submission of the claim would be excused if plaintiff provided a reasonable justification for the failure to timely submit the claim. Although the record reveals that plaintiff promptly submitted its claim to defendant after its initial claim [*2]was denied by another insurance carrier, plaintiff failed to proffer any explanation as to why it first submitted the claim to the other insurance carrier. As a result, plaintiff failed to provide defendant with a reasonable justification for plaintiff’s untimely submission of the claim to defendant (see St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748 [2005]; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). Accordingly, the order, insofar as appealed from, is affirmed.”

The 30-day and 45-day rules are potential death traps for the providers.

Plaintiff failed to demonstrate a reasonable excuse for the late submission of its bill

Synergy First Med. PLLC v ELRAC Inc, 2010 NY Slip Op 50048(U)(App. Term 1st Dept. 2009).

I missed this case, although it was pretty well discussed here and here.

45-days…and then what?

Upon a medical provider’s or Claimant’s violation of the 30-day rule or 45-day rule, and an insurance carrier’s timely denial thereto, what happens if a Plaintiff/Claimant subsequent to this denial proffers a reasonable justification for the late submission?

It would appear that the Carrier would have a real problem, since its only defense to payment of the otherwise valid claim would not be sustainable.

Such appears to be the case in the recent Appellate Term matter of:

Bronx Expert Radiology v Clarendon Natl. Ins. Co
2009 NY Slip Op 50747(U)(App. Term 1st Dept. 2009)

In Bronx Expert, a triable issue of fact was set forth as to the excuse for the late submission. Should the excuse for a late submission be deemed reasonable and sustained at trial or even on summary judgment, as a matter of law, then the carrier will have to pay the entire bill.

I suspect that the shrewd carrier, upon deciding to deny a bill for a 30-day rule or 45-day rule violation, would also adjust the bill from the standard medical management perspective. Accordingly, should the 30 or 45 day rule denial not hold, then a substantive defense could still be interposed.

TImely submissions and MVAIC – a real problem

Bronx Expert Radiology, P.C. v Motor Veh. Acciden Indem. Corp.
2009 NYSlipOp 50621(U)(App. Term 1st Dept. 2009)

“Defendant’s motion for summary judgment should have been granted. Even assuming that plaintiff’s submission of the claims for no-fault benefits to Seminole Casualty Insurance Company was inadvertent and justified plaintiff’s initial delay in submitting the claims to defendant (see 11 NYCRR 65-3.5[l]), plaintiff has failed to provide a “reasonable justification” for the six-month delay between the date it was apprised of Seminole Casualty’s denial of benefits and its submission of the claims to defendant”

The 45-day rule and MVAIC.

It seems a little disconcerting that an agency that our tax dollars supports plays by its own set of rules and appears to be exempt from paying no-fault claims, by operation of law. A scenario that seems to play out here is that MVAIC first declares that you must demonstrate through affidavits that you were not covered by any other source of insurance. This is what we can call the condition-precedent to coverage we see so much of in the decisional law from the Appellate Term, Second Department.

Admittedly, sometimes the condition precedent for being eligible for MVAIC is obvious. Examples of this include when a New York pedestrian, who has no other source of coverage, is run-down by a hit and run vehicle, or where a passenger in an uninsured vehicle who does not have other sources of coverage seeks coverage from MVAIC.

More often, I suspect there are issues as to the possible existence of other sources of coverage, or issues involving whether a policy of insurance may be canceled or ever existed. These are issues that need to be investigated and may take time to sort out.

In many of the above instances, I would think that by the time you sort out whether or not an injured person is qualified, the 45-day time period to submit bills to MVAIC has expired.

Yet, the Courts then come back and say that you did not act diligently enough in demonstrating a reasonable excuse for your late submission. In my survey of all 45-day rule appellate cases, I have yet to find a court that has held that a late submission was excusable. This says a lot, I think. I believe there needs to be special time frames set forth in the MVAIC scenario.