Response to Sun's comment last week

I promised when more brain cells became active, I would respond to Sun’s post from last week on the main blog.  Here is the post with some editorial from me.

“Here we go again.

Blanket denials fundamentally contradict No-Fault law because the insurer is required to consider each claim irrespective of its pronouncement that it will no longer consider claims for the patient prospectively (see 30-day rule, 11 NYCRR 65-3.8). “When a provider of medical services [first] submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier [blanket] denial issued directly to the insured” (A&S Medical, 789 N.Y.S.2d at 29, quoting Atlantis Med. v. Liberty Mut. Ins. Co., 2002 N.Y. Slip. Op. 40043U [Dist. Ct. Nassau County 2002]).”

Read what you wrote: “silently and secretly relying upon an earlier [blanket] denial issued directly to the insured.”

What if the blanket denial was carbon copied to all assignee providers known at that time?  The DOI requires through general counsel that this be done.  I know Rogak preaches otherwise, but the DOI disagrees with him.   I would tend to argue, however, that there would be no need to timely deny the individual claim since both parties have parted ways and at that moment that there was a justiciable controversy viz a vi the alleged anticipatory breach on the part of the carrier.

I think A&S has been read too broadly.

“Under JT’s notion that blanket denials are legally sufficient, when the applicant provides indisputable information in a subsequent proof of claim that refutes the insurer’s blanket denial (for example, by proving-up attendance at a medial examination the failure of which to attend was the basis for the blanket denial), the insurer can merely hide behind its blanket denial as its justification for failing to process the new claim. In short, the use of blanket denials provides a built-in excuse for the insurer to refuse to evaluate No-Fault claims on their respective merits, which directly conflicts with No-Fault law.”

Putting aside all of the flowery language and characterizations that are used above, I would actually agree in part.  If the carrier puts the provider on notice that all subsequent claims will be denied based upon a stated reason, then I think the inquiry ends there.  Should the provider or assignor be displeased with the carrier’s determination, then CPLR 3001 or individual civil court lawsuits seem to be the way to remedy this problem.  That is what happens now.  Also, with 24% per annum interest and an attorney fee, Sun should not be complaining.  I wish I got 24% on my money – I would then pay the minimum amount on my credit cards because I would be making 12% on the spread.

“Further, under JT’s notion that blanket denials are proper, the insurer may issue multiple blanket denials, none of them referencing a specific claim, and pick and chose its defense at trial from any of those included in any individual form.

JT’s concept contradicts No-Fault law and policy because it (1) entitles insurers to hide inappropriate carrier conduct behind vague denials of claims; (2) creates uncertainty regarding which denials applies to which claims; (3) allows the insurer to surprise the first-party applicant regarding which defense it will rely on in court; (4) makes it difficult or impossible for the applicant to evaluate the insurer’s defense(s) thereby necessitating more No-Fault actions and less settlements.”

The regulations require the exchange of peer and ime reports upon the applicant’s request.  Who is hiding?  Hi, here I am.

“In contrast, it there is no burden for the carrier to simply identify the claim which the denial pertains to.”

If I tell you I will not pay you for anymore services that you rendered, why should I have to repeat myself?  Time is money, and forests are disappearing.  Why waste money and deforest the Amazon with senseless correspondence?

“Even in a failure to attend medical examination context the carrier should be required to identify the claim, since there are instances where the carrier issues a denial permised upon non attendance and thereafter goes ahead and holds the assignor’s medical examination. In fact, that’s what happened in Unitrin.”

Was the claim denied for non-attendance?  Did the Assignor provide an affidavit as to why he did not show up?  Perhaps estoppel?  Discovery?

“All told, if we are discussing regs that should be judicially eliminated (somehow), how about the 45 day rule? Clearly, such a rule does more to eliminate valid claims for medical care reimbursement then acts as a hedge to claim fraud. This is especially the case with the new policy condition requirements. Anything can be vetted in the verification process, including by virtue of EUO, IME, and sworn statement conditions, so the idea that there must also be a 45 day claim submission deadline as well is bogus.”

Pick your poison.  30-day preclusion or the 45-day rule?  Clearly the carriers would be amenable to processing claims 2-years post DOS if they did not have to worry about being precluded.

Thank you.