Allowing non-sense to continue

The Problem with Bare Affidavits in No-Fault Verification Disputes

In New York no-fault insurance litigation, verification requests serve as a critical tool for insurers to validate medical claims. When healthcare providers fail to respond to these requests, insurers can deny payment based on lack of compliance. However, a troubling trend has emerged where courts accept minimal evidence from providers claiming they did respond to verification requests.

The case below illustrates how courts sometimes allow healthcare providers to defeat summary judgment motions with nothing more than a conclusory affidavit stating they responded to additional verification requests—without actually producing any evidence of that response.

This creates significant problems for insurers trying to enforce legitimate verification requirements under New York No-Fault Insurance Law.

Case Background

In Compas Medical, P.C. v American Transit Insurance Co., the parties cross-moved for summary judgment on multiple no-fault claims. The insurance carrier argued it properly denied claims based on the healthcare provider’s failure to respond to verification requests seeking additional documentation to support the medical bills submitted. The carrier presented evidence of mailing initial and follow-up verification requests to the provider.

The healthcare provider opposed the carrier’s motion by submitting an affidavit from its principal, commonly referred to as a “Rybak affidavit” after similar affidavits used throughout the no-fault industry. The affidavit stated conclusorily that the provider responded to the verification requests, but did not attach copies of the verification responses or provide specific details about what was sent, when it was sent, or how it was transmitted.

The Appellate Term, Second Department, reviewed whether either party established entitlement to summary judgment as a matter of law.

Jason Tenenbaum’s Analysis:

Compas Med., P.C. v American Tr. Ins. Co., 2015 NY Slip Op 51240(U)(App. Term 2d Dept. 2015)

“As to the remaining causes of action, defendant’s cross motion was sufficient to make a prima facie showing that plaintiff had failed to respond to defendant’s initial and follow-up requests for verification as to the claims upon which these causes of action were based. However, as plaintiff argues on appeal, plaintiff’s opposition was sufficient to raise a triable issue of fact as to whether plaintiff had responded to those verification requests. Therefore, neither party is entitled to summary judgment on these causes of action”

Of course, the responded to verification was not included in the papers before Civil Court. Rather, the Rybak “I responded to verification” affidavit without anything more was sufficient to defeat the motion. This decision and all the others on the same conclusory bald affidavit are 7 shades short of insane.

Key Takeaway

Courts are increasingly accepting bare affidavits from healthcare providers claiming they responded to verification requests, even when no actual verification documents are submitted as evidence. This trend undermines the verification process and creates verification non-receipt issues that make it difficult for insurers to properly adjudicate claims.

Legal Significance

The Compas Medical decision represents a troubling erosion of summary judgment standards in no-fault verification disputes. Traditional summary judgment principles require parties to submit admissible evidence supporting their factual assertions. Conclusory affidavits lacking specific facts generally fail to raise triable issues of fact. Yet this decision permits healthcare providers to defeat summary judgment motions with nothing more than a bare assertion of compliance.

This approach creates asymmetric evidentiary burdens. Insurance carriers must produce detailed affidavits describing their verification request procedures, attach copies of the requests, and demonstrate compliance with regulatory timing requirements. Healthcare providers, conversely, need only submit a conclusory statement claiming they responded, without producing any verification documents, explaining what they sent, or demonstrating when they mailed their responses.

The decision also conflicts with the regulatory framework governing verification requests. No-fault regulations establish specific timeframes for providers to respond to verification requests, with failure to respond timely authorizing denial. If courts permit providers to defeat denials with unsubstantiated assertions of compliance made years later during litigation, the regulatory framework loses its enforcement mechanism.

Practical Implications

Insurance carriers facing verification non-receipt defenses should conduct thorough discovery to challenge bare Rybak affidavits. Defense counsel should depose affiants to establish they lack personal knowledge about whether verification responses were actually sent, seek interrogatory responses requiring providers to specify exactly what documents were sent and when, and move to preclude unsubstantiated affidavits as inadmissible hearsay lacking foundation.

Healthcare providers should recognize that while some courts accept bare affidavits raising triable issues, better practice involves producing actual evidence of verification compliance. Maintaining copies of all verification responses, obtaining proof of mailing, and documenting response dates creates stronger evidence that may convince courts to grant rather than merely deny summary judgment. Providers relying solely on conclusory affidavits risk ultimate defeat after expensive discovery and trial.

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