Sunday, June 21, 2009

Peer Review Denial With No Support

- A denial premised on lack of medical necessity must be supported by evidence, such as independent medical examination, peer review or examination under oath, “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection”. Amaze Medical Supply (Bermudez) v. Eagle Insurance Co., 2004 NY Slip Op 51701(U) (App Term, 2nd & 11th Jud Dists 2004); A.B. Medical Serv. v. Geico Ins. Co., 2 Misc 3d 26, 773 NYS2d 773 (App Term, 2nd & 11th Jud Dist 2003).

- On the provided by the defendant denials , however, were no information explaining the Defendants position provided, and due to ambiguous grounds for the denial (11 NYCRR §65-3.2 (e)), the Plaintiff requested a copy of a peer review in order to further comprehend the basis of the denial (Exhibit “E”). The request was made in written form and was sent to Amex Insurance Company on August 13th, 2004 (Exhibit “E”). There were no response form the Defendant. Then, as a good faith performance second request were sent to the insurer under the USPS certified proof of mailing on December 16th, 2004. (Exhibit “E”). The request was sent to the examiner’s attention, however, the examiner ignored Plaintiff’s request. Thus the Defendant failed to prove and confirm its position and clearly violated 11 NYCRR §65-3.8 (b)(4) and 11 NYCRR §65-3.2 (b), which requires the insurer to respond to the request for Peer Review Report

- Notwithstanding the fact that the denials were issued timely, it has no legal standings and cannot be used as denials at all 11 NYCRR §65.15(c) (3). Therefore, defendant failed to deny the claim at all as prescribed in 11 NYCRR §65.15 (g)(3).

- “As defendant has not supplied the IME or the peer review itself, without any evidence in admissible form, defendant cannot raise a triable issue of fact and the plaintiff's motion for summary judgment is granted”. S&M Supply Inc., v. New York Central Mutual Fire Insurance Company, 193 Misc. 2d 282; 748 N.Y.S.2d 910; 2002 N.Y. Misc. LEXIS 1293.

- “It is important to clarify the distinction between suits by medical providers for no-fault benefits based upon substantive denials versus procedural denials. While a suit for payment on the basis of an untimely denial would usually not require evidence in admissible form from a physician in opposition to a plaintiff's motion for summary judgment, a suit for payment challenging a denial for medical reasons requires evidence in admissible form from defendant's expert, to substantiate the denial issued by the insurance company. The case law is clear that the plaintiff's provision of services or equipment and the submission of the bill to the carrier is prima facie evidence that the goods or services were provided. (Park Health, supra.) Thus, an affirmation from a physician is necessary to support defendant's denial based on the conclusion that there was no medical necessity for the goods or services. The 12-page affirmation from defendant's attorney is unavailing in this regard.” S&M Supply, Inc., v. New York Central Mutual Fire Insurance Company, 193 Misc. 2d 282; 748 N.Y.S.2d 910; 2002 N.Y. Misc. LEXIS 1293.

- Jamil M. Abraham, M.D. d/b/a Park Health Center Rockaway Boulevard Medical, P.C., Sure Chiropractic, P.C., Park Alternative Medicine, P.C. a/a/o Joziel Leconte v. Country-Wide Insurance Company 3 Misc.3d 130(A), 787 N.Y.S.2d 678, 2004 WL 1079239

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