Defense of unbundling requires coding expert affidavit

The insurer lost its unbundling defense in First Aid because it offered no affidavit from someone with expertise supporting that billing position. It nevertheless won dismissal of separate claims awaiting verification. The decision is a split result, not a rule that one missing affidavit defeats every defense.

Historical note: First Aid Occupational Therapy v Country-Wide, 26 Misc 3d 135(A) (2010), separated coding and verification grounds. Its older prima facie discussion should be read with Viviane Etienne, 25 NY3d 498 (2015). The verification hub addresses later request rules.

Last reviewed: September 2026.

One appeal, different claim results

First Aid Occupational Therapy, PLLC v Country-Wide Insurance Co., decided January 29, 2010, followed a provider’s award of summary judgment. The Appellate Term modified the result by separating the defenses and claims.

For the first and fifth causes of action, the provider’s award stood. The insurer did not submit an affidavit from a person with expertise supporting its assertion that billed services should have been bundled.

For the second, third and fourth causes of action, the insurer’s outstanding-verification position succeeded. The court reversed the provider’s award on those branches and granted the insurer dismissal as premature. Keeping the numbered claims separate avoids reporting either party as winning the entire appeal.

What unbundling means in this dispute

An unbundling defense asserts that services billed separately should be treated together under the applicable billing rules. Whether that position is sound requires more than the label. The actual services, codes, dates and relevant rule need to be connected through competent evidence.

First Aid rejected the insurer’s unsupported showing. The court did not announce that every coding disagreement requires a particular commercial certification, an outside retained expert or a witness with a fixed number of years in practice.

The historical title uses “coding expert affidavit.” The opinion’s formulation is an affidavit from a person with expertise supporting the contention. The witness’s relevant knowledge and explanation matter more than turning that shorthand into an invented credential requirement.

Why a lawyer’s billing assertion may not suffice

The question is what the proof establishes. A statement that two charges should be combined does not explain why the applicable billing rule requires that result for the services at issue.

The related Kingsbrook Jewish Medical Center v Allstate, 61 AD3d 13 (2009), addressed a different defense: whether coded medical conditions were unrelated to the accident. The court allowed judicial notice of the official code key but found that decoding the codes did not establish the medical causation conclusion. The insurer lacked the supporting medical expert proof needed on that record.

Kingsbrook is not an unbundling decision. It is a useful comparison because recognizing the meaning of a code and proving the proposition drawn from it are different evidentiary tasks.

The verification branches had another basis

First Aid also considered a follow-up verification request sent prematurely. It relied on Infinity Health Products v Eveready, 67 AD3d 862 (2009), which rejected an effort to win payment solely because a follow-up was slightly early while the provider ignored both requests.

That did not erase all request deadlines. The insurer still needed the verification record supporting its position. The Triangle R timing note compares a later follow-up that was five days late, also in the context of unanswered requests.

These decisions predate the 2013 verification amendments. The current regulations have separate provisions for technical defects and qualifying 120-day document requests, with exclusions for prescribed forms and examinations.

Organize the proof by the defense asserted

For an unbundling argument, identify the separate charges challenged and the rule said to require combined billing. The witness’s explanation should connect that rule to the services actually billed, rather than leaving the court to infer the connection from code numbers alone.

For verification, identify the requested information and what remained unanswered. First Aid’s successful verification branches did not supply the missing expertise on the different claims defended through unbundling. Likewise, the failure of the coding proof did not establish that the other claims were ready for suit.

The Utica Acupuncture decision offers a further comparison. It separated verification from medical-necessity grounds and assessed different proof for each. Reading the claim groups separately is more reliable than treating one motion as an all-or-nothing vote on an insurer’s entire position.

Read the provider’s burden through later authority

Etienne states the later Court of Appeals rule for summary judgment on overdue benefits: admissible proof that the statutory billing forms were mailed to and received by the insurer and that benefits were overdue.

An inadequate defense does not remove the moving provider’s initial burden. Conversely, a provider that makes the required showing may be entitled to judgment where the insurer fails to raise a triable issue. First Aid’s split outcome makes sense only when those burdens and the separate claim groups remain visible.

For a disputed unbundling file, collect the actual bills, applicable coding material, denial and the explanation offered by the qualified witness. For an outstanding-verification branch, collect the requests and response evidence. Do not assume that evidence supporting one defense automatically proves the other.

Frequently Asked Questions

What is medical billing unbundling?

Here it refers to billing services separately when the applicable billing rules require them to be treated together. Whether particular charges were improperly separated depends on the services and rules, not the use of the word unbundling in a denial.

Why do insurance carriers need expert affidavits to defend unbundling claims?

First Aid found no affidavit from a person with expertise supporting the insurer’s contention. The opinion rejected that evidentiary gap on these claims; it does not establish that every billing dispute has identical proof requirements.

What qualifications should an expert have for unbundling cases?

The witness must have relevant expertise and explain the basis for the billing conclusion. This opinion does not prescribe one certification, employer or minimum experience period, and it does not require outside retention merely because the defense involves coding.

How can timing issues affect verification requests?

Initial and follow-up dates can affect the verification argument. First Aid applied the earlier Infinity decision to a premature follow-up on its record. Read those facts and the applicable regulatory version rather than assuming every early or late request has the same consequence.

Jason’s original commentary

The contemporaneous comments below are preserved as historical commentary, with the case-specific and current-law qualifications explained above.

Unbundling. I love this word. I discussed this issue in a previous post. The only difference between the previous case and this case is that the penalty for failing to proffer an expert affidavit (assuming you can find an expert who would support the unbundling theory in this case) is succumbing to a plaintiff’s summary judgment motion. The relevant portions of the case are as follows:

Finally, the case involved a premature additional verification request where plaintiff was granted summary judgment. This was reversed.

Connect to the Encyclopedia

Start with the no-fault verification hub and 2026 Chapa update for the governing framework and case directory. Related case notes:

• Triangle R: an unanswered request and a five-day-late follow-up.
• Hospital NF-5: the insurer received the version it requested.
• Utica Acupuncture: a missing mail-search result and medical necessity.
• GLM: EUO notices, nonappearance proof and the ADA-comment limit.

For review of a particular no-fault verification dispute, request a Free Case Review. Keep the requests, responses and relevant claim dates available for that review.