tag:blogger.com,1999:blog-8662881753171411222024-03-08T00:58:20.627-08:00No-Fault Insurance Law and Civil Practice LitigationLeonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.comBlogger25125tag:blogger.com,1999:blog-866288175317141122.post-35025719832460553762009-06-21T22:04:00.000-07:002009-09-11T13:02:11.586-07:00Fraud Accusation (Corporate Structure)- “The regulatory scheme, however, does not permit abuse of the truth-seeking opportunity that 11 NYCCR §65-3.16(a)(12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause (see 11 NYCRR §65-3.2[c]). In the licensing context, carriers will be unable to show a “good cause” unless they can demonstrate behavior tantamount to fraud. Technical violations will not do. For example, a failure to hold an annual meeting, pay corporate filing fees or submit otherwise acceptable paperwork on time will not rise the level of fraud. We expect, and the Legislature surely intended, vigorous enforcement action by the Superintendent against any carrier that uses the licensing requirement regulation to withhold or obstruct reimbursements to non-fraudulent healthcare providers.” State Farm Mutual Automobile Insurance Co. v. Robert Mallela 2005 WL 705972 (N.Y.); 2005 N.Y. Slip Op. 02416Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com2tag:blogger.com,1999:blog-866288175317141122.post-31044279930736421342009-06-21T22:03:00.001-07:002009-09-11T13:01:21.235-07:00Ninety Day Notice- “In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grand such motion unless the said party shoes justifiable excuse for the delay and a good meritorious cause of action”. CPLR 3216[e]<br />
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- “The plaintiffs proffered a reasonable excuse for their delay in responding to the 90-day notice in that they were actively engaged in settlement negotiations with the defendants at the time that they were served with the 90-day notice and the subsequent motion to dismiss the complaint [cf. Scarlett v McCarthy, 2 AD3d 623; Sortino v Fisher, 20 AD2d 25, 29]. Additionally, the plaintiffs established the existence of a meritorious cause of action. Accordingly, the defendants' motion to dismiss the complaint should have been denied.” Katina, Inc. v. Town of Hempstead, [Index No. 31967/98] New York Law Journal December 15, 2004, Section: Decisions; Pg. 29<br />
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- “To avoid dismissal, the plaintiff was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and a meritorious cause of action [see CPLR 105[u], 3216[e]; Werbin v Locicero, 287 AD2d 617, 618; Matter of Simmons v McSimmons, Inc., 261 AD2d 547, 548; Markarian v Hundert, 204 AD2d 697, 697-698]. The plaintiff made that showing. Accordingly, the Supreme Court providently exercised its discretion in denying the defendants' motion.” Carlos Santiago v. Grenadier Realty Corp [Index Nos. 49440/00, 75381/01], New York Law Journal, January 3, 2005, Section: Decisions; Pg. 37<br />
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- “After receiving a 90-day notice pursuant to CPLR 3216, the appellant timely moved, inter alia, for an extension of time within which to file a note of issue [see CPLR 3216[b][3]]. In order to vacate the demand and obtain an extension of time to file a note of issue the appellant was required to show either a need for the extension or good cause for the past delay [see Conway v Brooklyn Union Gas Co., 212 AD2d 497]. Since the appellant's motion was timely, no affidavit of merit was necessary [see id.]”. Arkalgud Ramachandra, v. Gelco Corporation, [Index No. 50/01] New York Law Journal January 3, 2005, Monday Section: Decisions; Pg. 33<br />
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- “[S]ection 3216 of the CPLR identifies the requirements that must be met for a party who is seeking dismissal of an action for want of prosecution in proceedings that do not come within the purview of CPLR 3404. This section of the CPLR states that, to succeed in such a motion to dismiss, the party seeking dismissal must demonstrate the following:<br />
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1. The issue has been joined for at least one year, and<br />
2. The defendant must serve a demand on the plaintiff to resume prosecution and file a note of issue or notice of trial within 90 days” Budhram v. American Dental Centers, New York Law Journal February 18, 2005, Section: Decision Of Interest; Pg. 24<br />
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- “Pursuant to the provisions of CPLR 3216, no motion to dismiss for failure to prosecute may be made by a defendant unless the defendant has first served the plaintiff with a demand that he or she file a note of issue. Chase v. Scavuzzo, 87 N.Y. 2d 228, 638 N.Y.S. 2d 587 [1995]. Indeed, CPLR 3216 expressly and unequivocally precludes such dismissal unless the party seeking dismissal shall have served a written demand by registered or certified mail requiring the party against whom dismissal is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand. Strasser v. Prudential Securities, Inc., 2 A.D. 3d 239, 769 N.Y.S. 2d 247 [1st Dept. 2003].” Budhram v. American Dental Centers, New York Law Journal February 18, 2005, Section: Decision Of Interest; Pg. 24<br />
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- “To vacate a default, the moving party must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action (see Weekes v Karayianakis, 304 A.D.2d 561, 758 N.Y.S.2d 117 [2003]; cf. Antoku v Grace Indus., 295 A.D.2d 294, 742 N.Y.S.2d 901 [2002]; Fuller v Tae Kwon, 259 A.D.2d 662, 686 N.Y.S.2d 831 [1999]). The determination of what constitutes a reasonable excuse [***2] is left to the sound discretion of the court (see Holt Constr. Corp. v J & R Music World, 294 A.D.2d 540, 742 N.Y.S.2d 876 [2002]; Matter of Gambardella v Ortov Light., 278 A.D.2d 494, 717 N.Y.S.2d 923 [2000]). Further, public policy favors a determination of controversies on their merits (see Eastern Resource Serv. v Mountbatten Sur. Co., 289 A.D.2d 283, 284, 734 N.Y.S.2d 496 [2001]; Darrell v Yurchuk, 174 A.D.2d 557, 572 N.Y.S.2d 643 [1991]).” Scarlett v. McCarthy, 2 AD3d 623; 768 N.Y.S.2d 342; 2003 N.Y. App. Div. LEXIS 13403<br />
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- “Here, the Supreme Court providently exercised its discretion [*624] in accepting the defendant's proffered excuse that his insurance carrier was actively engaged in settlement negotiations with the plaintiff's counsel, and that the plaintiff's counsel never mentioned that he would be moving for leave to enter a default judgment (see Lehrman v Lake Katonah Club, 295 A.D.2d 322, 744 N.Y.S.2d 338 [2002]; Swain v Janzen, 121 A.D.2d 378, 379, 503 N.Y.S.2d 88 [1986]). Additionally, the defendant established the existence of a meritorious defense based upon the circumstances of the accident, which indicate that the plaintiff could be found at least partially at fault in the happening [***3] of the accident.” Scarlett v. McCarthy, 2 AD3d 623; 768 N.Y.S.2d 342; 2003 N.Y. App. Div. LEXIS 13403<br />
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- Since carrier has not issued a timely denial, no further discovery-- which includes an EBT of the medical provider-- is permissible, unless the carrier alleges fraud or lack of coverage. Ostia Medical, P.C. v. GEICO, 2003 WL 23152964 (N.Y.Dist.Ct.), 1 Misc.3d 907(A), 2003, N.Y. Slip Op. 51560(U).Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-82878642135614973242009-06-21T22:03:00.000-07:002009-09-11T13:01:46.136-07:00Medical Supplies“For medical equipment and supplies (e.g., TENS units, soft collars) provided by a physician or medical equipment provider, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider. Appendix 17-C, Part E (b)(1) to 11 NYCRR 68, effective on and after September 1, 1994.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-14979732784619191532009-06-21T22:02:00.000-07:002009-09-11T13:02:37.908-07:00Providers Relationships- “The Insurance Department regulations provide, in relevant part, for the direct payment of benefits “directly to the applicant … or, upon assignment by the applicant… [to] the providers of services” (11 NYCRR §65.15[j][1]). Pursuant to these regulations Plaintiff would be entitled to payment from the defendant as assignee only if it was the provider of the service billed for. If the treating provider was an employee of a billing provider, the billing provider would be considered a provider of services, thought its employee, and thereby entitled under the regulation to direct payment. If, however, the treating provider was an independent contractor, the billing provider would not be entitled to direct payment under the regulation since it did not provide service to the applicant patient.” Rockaway Blvd. Med. P.C. v. Progressive Ins. 2004 NYSlipOp 24184Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-42115349992073364202009-06-21T22:01:00.000-07:002009-09-10T12:24:36.650-07:00Prima Facie- “[T]he defendant has the burden to prove that the services rendered were not medically necessary. To clarify, this Court finds that a plaintiff sustains its burden of proof by presenting a timely and proper notice of claim, for which there has been no payments or proper denial. A timely notice of claim includes evidence that insured assignor was treated for injures sustained as a result of an automobile accident, and includes bills for treatment rendered by plaintiff with regard to those injures. Plaintiff does not to prove the medical necessity of its treatment. If plaintiff meets its burden, defendant must then prove that the treatment was not medical necessary. Should defendant meet that burden, plaintiff may present evidence to rebut defendant’s evidence on that issue. While this could be contrary to prior holdings in arbitration, those decision are not binding on this court and, in this Court’s opinion, are contrary to the intention of the insurance regulations and existing case law. Hobby v. CAN, 267 A.D.2d 1084 [4th Dept. 1999] [citing McKinney’s Cons. Laws of NY Book I, Statute §72).” Fifth Avenue Pain Control Center v. Allstate Insurance, 2003 NY Slip Op 50594U; 2003 N.Y. Misc. LEXIS 136, NYLJ 4/30/03, p. 23 col. 4 (Civil Court, Queens Co.)<a name='more'></a><br />
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- Medical Necessity is not an element of plaintiff’s proof of claim. Ones plaintiff presents a proper notice of claim, defendant has the burden of presenting medical evidence that the services were not medically necessary. Park Health Center v. Prudential Insurance Co., 2001 WL 1803364 (App. Term 2nd and 11th Jud. Dist. 20001); Oceanside Medical Healthcare, P.C. v. Progressive Insurance, 2002 WL 1013008 (Kings Civ. 5/9/2000). <br />
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- If Plaintiff does not have to present medical necessity in its proof of claim, and defendant must present medical necessity as a defense in a timely denial, it is only logical to conclude that defendant has the burden of proving medical necessity. Fifth Avenue Pain Control Center v. Allstate Insurance, 2003 NY Slip Op 50594U; 2003 N.Y. Misc. LEXIS 136, NYLJ 4/30/03, p. 23 col. 4 (Civil Court, Queens Co.)<br />
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- 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 [***7] 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.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com1tag:blogger.com,1999:blog-866288175317141122.post-29059271916558033462009-06-21T22:00:00.000-07:002009-06-24T09:32:02.458-07:00Discovery- Since carrier has not issued a timely denial, no further discovery, which includes an EBT of the medical provider, is permissible, unless the carrier alleges fraud of lack of coverage. Ostia Medical, P.C. v. GEICO, 2003 WL 23152964 (N.Y. Dist.Ct.), 1 Misc.2d 907(A), 2003, N.Y. Slip Op. 51560(U)Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-83230553241071968092009-06-21T21:59:00.001-07:002009-06-24T09:32:02.470-07:00Acupuncture- State of New York Supreme Court, County of Otsego rejected the insurer’s argument that it was illegal for physicians to employ acupuncturists, and ruled that the State attorney general, on behalf of the people, had exclusive authority to challenge the manner in which the medical corporation was structured. The Supreme Court also ruled that since the services rendered were medically necessary, selected by covered persons for covered accidents, and competently provided by licensed health care providers, the insurer’s complaint failed to state a compressible claim. New York Central Mutual Fire Insurance Company v. 563 Grand Medical, P.C.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-35346735237712077292009-06-21T21:59:00.000-07:002009-06-24T09:32:02.463-07:00Concurrent Care“…when the condition of the patient requires the disparate skills of two or more physicians to treat different conditions which do not fall within the scope of other physicians treating the patient at the same time, payment is due to each physician who pays an active role in the treatment program. The services rendered by each physician shall be distinct, in different disciplines, identifiable and adequately documented in the records and reports.” The Ground Rules of the Fee Schedule.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-24783390270440634112009-06-21T21:58:00.001-07:002009-09-11T11:51:02.259-07:00Examination Under Oath- A request for an Examination Under Oath to an insured party’s attorney is not sufficient notification to the injured party under New York’s No-Fault Law and Regulations Star Medical Services, P.C. v. Allstate Insurance Co.<br />
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- A denial of first party benefits under the No-Fault Law can not be based on statements and suppositions made by a person who lacks personal knowledge of the situation. Star Medical Services, P.C. v. Allstate Insurance Co.<br />
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- Insurer must serve request for additional verification within fifteen days of the date that the bill or prior verification is received. 11 NYCRR §65-3.6(b)<br />
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- Further, when the additional request is an examination under oath, the examination must be scheduled within thirty days from the date bill is received. 11 NYCRR §65-3.5(d)Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-5896479855382260722009-06-21T21:58:00.000-07:002009-06-24T09:32:02.476-07:00Assignment of Benefits- “The authorization by plaintiff's assignor to pay no-fault benefits constitutes an assignment enabling the plaintiff health care provider to sue to recover the insurance proceeds applicable to the medical service provided. (Rehab. Medical Care of New York, P.C., as Assignee of Dor Vania v. Travelers Insurance Company, 188 Misc.2d 176, 727 N.Y.S.2d 247 [App Term 2nd Dept 2001]; Gingold v. State Farm Ins. Co, 168 Misc2d 62, 642 N.Y.S.2d 812 [Civ Ct Queens Co 1996]; see also, Pain Resource Ctr. v. Travelers Ins. Co. 185 Misc 2d 409, 713 N.Y.S.2d 258 [Civ Ct Kings Co 2000].) The authorization is permitted by 11 NYCRR § 65.15 (j) which states: "Direct Payments. (1) An insurer shall pay benefits [***3] for any element of loss, ... directly to the applicant or, ... upon assignment by the applicant ... shall pay the providers of services ... directly."” S&M Supply Inc., v New York Central Mutual Fire Ins. Co. 193 Misc. 2d 282; 748 N.Y.S.2d 910; 2002 N.Y. Misc. LEXIS 1293<br /><br />- “There is no mention in the assignment language of any intent to revoke the assignment, and thus it operates as a valid assignment allowing plaintiff to sue as an assignee for the medical supplies it provided to its assignor. (Craniofacial Pain Management, as Assignee of Noemi Rivera, v. New York Central Mutual Fire Insurance Co., 186 Misc2d 309, 718 N.Y.S.2d 130 [Civ Ct, Queens County 2000].).” S&M Supply Inc., v New York Central Mutual Fire Ins. Co. 193 Misc. 2d 282; 748 N.Y.S.2d 910; 2002 N.Y. Misc. LEXIS 1293Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-46298507435105827252009-06-21T21:57:00.001-07:002009-06-24T09:32:02.495-07:00Proof of Mailing- Presumption of mailing can be created either by actual proof of the mailing or proof of a standard office practice or procedure. Allstate Social Work & Psychological Svcs PLLC v. Gen. Ins. Co. (2005 Slip Op. 50024 (U), Civil Court of the City of New York, Kings County, 2005)<br /><br />- “Affidavits that make no reference to the specifics of the office mailing practice or procedures, which merely aver that the bills were mailed… are insufficient to establish proof of actual mailing.” Allstate Social Work & Psychological Svcs PLLC v. Gen. Ins. Co. (2005 Slip Op. 50024 (U), Civil Court of the City of New York, Kings County, 2005)Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-26138448904386259562009-06-21T21:57:00.000-07:002009-09-11T11:50:07.738-07:00IME- “[A]ll independent medical examinations shall be performed by a practitioner competent to evaluate or examine the injury or disease from which the injured worker suffers.” McKinney's Workers' Compensation Law § 137.5<br />
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- If the EIP failed to submit for the IME the insurance company still has to pay all claims for services where it does not dispute the medical necessity of such services. The Office of General Counsel Opinion Letter, February 11, 2003.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-87751940748576190542009-06-21T21:56:00.000-07:002009-09-11T13:03:44.149-07:00Verifications Requests- The insurer shall not issue a denial prior to the receipt of verification of all the relevant information. Section 5-3.5.<br />
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- Once the insurer issues a denial of a proof of claim, it waives its right to other requested verification if it’s still outstanding. By serving its denial, the insurer in fact affirms the fact that it has all of the relevant information it deems necessary to serve a denial. See 11NYCRR Section 65-3.8(a)(1); (c) and Exclusive Medical & Diagnostic, P.C. v. New York Central Mutual Fire Ins. Co., N.Y.L.J., March 30, 2004, Special Term Pt. 1, p. 43 col. 3.<br />
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- It is a respondent’s burden to establish the reasonableness of the verification requests. The conditions form the 11 NYCRR §65-1, (stating that “The eligible injured person shall submit to medical examination by physicals selected by, or acceptable to the Company when and as often as, the company may reasonable require.”), doesn’t give the insurer the right to conduct an Examination without first establishing reasonable grounds. In other words, it’s respondents burden to establish the reasonableness of the verification requests. Assessment Number: 179913519404, File No.: 11190<br />
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- To deny coverage based upon the missed appointment, without affording the claimant the opportunity to appear for a rescheduled examination is unreasonable and fails to comply with 11 NYCRR §65-15. Assessment Number: 179913519404, File No.: 11190<br />
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- A request for a medical examination constitutes a verification of the claim and if a necessary verification is not complied with, then within 30 days after said request, a follow up request will be made. 11 NYCRR §65-15. Assessment Number: 179913519404, File No.: 11190<br />
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- Even if the IME requests were sent before insurer received the bills as a condition precedent to the bringing of claim, the insurer has to follow all the requirements pursuant to the Opinion of the Office of General Counsel of New York State Insurance Department, clearly states that “… an insurer’s request for an IME of an Eligible Injured Person prior to the receipt of a claim is a verification request which requires the insurer afford a second opportunity for the person to appear under the applicable follow-up procedures contained in Section 65-3.6(b).”<br />
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- “Within 10 business days of receipt” of a No-Fault claim, under the old regulations, or “within 15 business days of receipt” under the new regulations, an insurer may seek additional verification of claim, 11 NYCRR §65.15[d][2]; Mount Sinai Hospital v. Triboro Coach, 263 A.D.2d 11, 699 N.Y.S. 2d 77 (2nd Dept. 1999); 11NYCRR §65-3.5 (b), thereby delaying the statutory 30-day period in which to pay or deny, Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d. at 280-81; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 A.D.2d. at 578; Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d at 16.<br />
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- If the requested verification is not received within 30 days, the insurance company, within 10 days of the insured’s failure to respond, must “follow up with the party form whom the verification was originally requested, either by a telephone call properly documented in the file, or by mail.” 11 NYCRR §65.15(e); New York & Presbyterian Hospital, et al., v. Progressive Casualty Insurance Company, 2004 N.Y. App. Div. LEXIS 2658 (2nd Dept.)<br />
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- An examiner is not permitted to deny a claim within the pendency of a verification request. Insurance companies are held to a strict adherence of the timing mechanism for verification and denials set forth in the regulations. Kings Medical Supply Inc. v. Travelers Prop. Cas. Corp., 194 Misc.2d 667, 2003 N.Y. Misc. LEXIS 35 (N.Y. Misc. January 14, 2003, Decided).Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-75257118280142105562009-06-21T21:55:00.000-07:002009-09-11T13:53:46.444-07:00Rule of Evidence- “The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment” (CPLR 3212[b]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “Failure to make such shoeing requires the denial of the motion, regardless of the opposing papers.”((Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Vitiello v. Mayrich Constr. Corp., 255 AD2d 182, 184 [1st Dept 1998]). Once the movant has offered sufficient proof to establish a prima facie case, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.”(Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986])Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-103416378442203942009-06-21T21:54:00.000-07:002009-09-11T13:03:06.874-07:00Defective Denial- The denial of claim is “fatally defective” when it failed to include the information listed in items 23 though 30 of the prescribed denial form (including the name of the provider, the date and amount of the claims being denied, and the date it received those claims), and when the defects in the denial were not cured by supplying the previously-omitted information before the expiration of the 30-day statutory period. Nyack Hosp. v. State Farm Mut. Auto. Ins. Co., 2004 WL 2394038, 2004 NY Slip Op 07663 (2d Dept. October 25, 2004)<br />
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- A valid denial of claim must include the information called for in the prescribed denial of claim form, 11NYCRR §65-3.4(c)(11), and must “promptly apprise the claimant with a high degree of specificity of the grounds on which the disclaimer is predicated”. General Accident Ins. Group v. Cirucci, 46 NY2d 862, 864, 414 NYSd512, 387 NY2d 223 (1979)<br />
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- Assuming arguendo that the denial is valid, however, “(a) timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law”. Amaze Med. Supply (Regnoso) v. Allstate Ins. Co., 2004 NY Slip Op 24119 (App Term 2d Dept. 2004).Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-11394422104849220722009-06-21T21:44:00.000-07:002009-09-11T13:05:06.102-07:00Fee ScheduleAcupuncture billing, at this time, was under the New York Workers’ Compensation Medical Fee Schedule listings (“NYWCMFS”), with identifying code numbers of 97780 and 97781, in Section 8 Physical Medicine (“PM”). Codes 97780 and 97781 provide, under the relative portion heading of the section, that Acupuncture has a BR listing. That is, billing is done by report. As defined by General Ground Rules of Section 1 Introduction and General Guidelines, subdivision 3, BR coding is used when the services are to be variable to permit assignment of unit values. Pertinent information concerning the nature, extent, and need for the procedure or service, the time, skill and equipment necessary are to be furnished. The subdivision further provides that “…the physician shall establish a unit value consistent in relativity with other unit values shown in the schedule.” The PM ground rules, subdivision 13, provides “[W]hen multiple physical medicine procedures …are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less.”<br />
In other words, although acupuncture has a BR coding, it is limited to a maximum of 8.0 units per day and is to be correlated to other services provided in the PM section of the NYWCMFS as well as providing documentation as nature, extent, time and need for the services. A review of the PM section indicates that the majority of relative values range between 2.37 and 4.40 with 1 procedure at 28.00, 2 procedures at 9.47, 1 procedure at 5.55 and 1 procedure at 5.41. Since Acupuncture services are “variable” I assign a unit value of 6.00. Conversion factor for PM, Region IV, is $8.45. Unit value 6 x’s $8.45 would be $50.70 per acupuncture session. There were 6 sessions @ $50.70 is a total of $304.20.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-16354670057821835492009-06-21T21:40:00.000-07:002009-09-11T11:50:32.347-07:00No Show to EUO- The insurer has to comply with proper procedures for conducting such examinations under oath. The examination must be scheduled in the county the Eligible Injured Person resides (except the boroughs of New York due to the mass transportation.) 11 NYCRR §65-3.5(e).<br />
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- “The opportunity to schedule examinations (including EUOs)”, “does not give Respondent the right to conduct an EUO without having first established the reasonable grounds for seeking such an EUO.” MRI of the Bronx a/a/o Tucker and Infinity Ins. Co. NF 2959Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-19991065275265420262009-06-21T21:39:00.000-07:002009-09-11T11:50:19.737-07:00No Show to IME- If an insurer does not receive the IME verification within thirty days of its original request, it must send a follow-up request to a claimant within 10 days. 11 NYCRR §65.15(e)(2). Metro Medical Diagnostics, P.C. v. Lumberman’s Insurance Company, NYLJ p. 26, col.2, 10/09/01, the Appellate Term, 2nd and 11th Judicial District. <br />
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- Failure to do so resulted in preclusion of carrier’s denial based upon such reasoning. Bronx Medical Services, P.C. a/a/o Molina v. Windsor Insurance, App. Term., 1st Dept., #029379, Sept. 2002.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-26109040426241653292009-06-21T21:38:00.000-07:002009-09-11T13:03:18.448-07:00Negative IME’s- Insurer has to support the basis for the denials if they are based on negative IME’s, by presenting the IME report in court. Advanced Medical Rehabilitation, P.C. A/A/O Magda Arango v. Geico Insurance Co. AAA Case No.: 412004045491; Assessment No.: 17 991 42367 04.<br />
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- “As defendant has not supplied the IME or the peer review itself, without any evidence in admissible form, defendant [***6] cannot raise a triable issue of fact and the plaintiff's motion for summary judgment is granted”. S&M Supply v. NY Cent. Mut. Fire Ins. Co. (103 Misc. 2d 282, 748 N.Y.S.2d 910 [Civil Ct, Kings Co. 2002)Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-18579543831806600112009-06-21T21:37:00.000-07:002009-09-11T13:04:20.819-07:00Peer 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).<br />
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- 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<br />
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- 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).<br />
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- “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.<br />
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- “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.<br />
<br />
- 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 1079239Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-14295038721653373252009-06-21T21:36:00.000-07:002009-09-11T13:03:34.373-07:00Improper Delay- The Defendant made an invalid attempt to extend its 30 days by forwarding a letter advising that the payment of the bills is being delayed pending their request for a peer review. Annexed hereto as Exhibit “F” is a copy of the Defendant’s letter. The Defendant’s letter does not constitute a valid delay nor does it extend its time to deny the claim as they are not requesting any verification. Atlantis Medical, P.C. v Liberty Mutual Insurance Company 2002 WL 523102 (N.Y.Dist.Ct.))Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-24755569988159716962009-06-21T21:35:00.000-07:002009-09-11T13:03:53.163-07:00Late Denial (Envelope)- To issue a timely denial of a claim under the No-Fault Law, insurer must generate its denial and mail it to plaintiff within 30 days. 11 NYCRR 65.15(g)(3). <br />
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- “[A]s defendant submitted an untimely denial, defendant can present no defense against plaintiff, thereby leaving no issues of fact in dispute.“ Damadian MRI in Canarsie, P.C. v. Countrywide Ins. Co. 194 Misc.2d 708, 755 N.Y.S.2d 585.<br />
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- “Upon reviewing the Insurance Regulations, legislative history and case law, it must be inferred that the issuance of a denial included the generation and mailing of the denial. While there is no law defining “issue” in this matter, it is clear that the generation of a denial form and its mailing are separate and distinct aspect of “issuing” a denial. Hospital for Joint Diseases, et.al. v. Nationwide Mutual Insurance Co., 284 A.D.2d 347, 726 N.Y.S.2d 443 [2nd Dept. 2001][defendant insurance company presented evidence regarding whether denial of claim forms were mailed on the date issued].) While defendant may consider the generation of a denial form to be its issuance, there is no authority to its conclusion that the mere generation of a denial is sufficient to comply with statutory regulations.” Damadian MRI in Canarsie, P.C. v. Countrywide Ins. Co. 194 Misc.2d 708, 755 N.Y.S.2d 585.<br />
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- “Therefore, to issue a timely denial, defendant must generate its denial and mail it to plaintiff within thirty days. Any other interpretation of the statute would render the time limit meaningless, as defendant could backdate its denial and mail it days or weeks later, and still have issued a timely denial. The purpose of having the time requirement is to foster the expeditious processing of claims by the insurance carrier, a purpose that would be thwarted is defendant’s position were accepted. By finding that defendant issue a timely denial simply by generating the document belies logic and any reasonable interpretation of the law.” Damadian MRI in Canarsie, P.C. v. Countrywide Ins. Co. 194 Misc.2d 708, 755 N.Y.S.2d 585.Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com1tag:blogger.com,1999:blog-866288175317141122.post-53707978544352144632009-06-21T21:31:00.000-07:002009-09-11T13:04:03.065-07:00No Denial Provided- Within thirty (30) days after a claimant submits “proof of the fact and amount of loss sustained”, an insurer must pay or deny a claim for insurance coverage of medical expenses arising from a motor vehicle accident. N.Y. Ins. Law §5106(a); Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 200 (1997); Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d 11, 16 (2nd Dept. 1999). See 11 N.Y.C.R.R. §65.15(g)(3); Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 278 (1997); New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 A.D.2d 583, 584 (2nd Dept. 2002).<br />
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- If a No-Fault claim is not paid or denied within thirty days of its receipt by the insurer, it is “overdue”, commencing the accrual of interest and attorneys fees. See N.Y. Ins. Law §5106[a] (McKinney 2000); 11NYCRR §65.15(g)(3); Presbyterian Hospital v. Maryland Cas. Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536 (1997).Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-17068632300623499482007-11-21T21:57:00.000-08:002009-09-10T12:26:23.503-07:00Medical Necessity<div align="justify">- The testimony of defendant’s doctor in not sufficient to meet the defendant’s burden of proof with regard to the affirmative defense of lack of medical necessity. Choicenet Chiropractic, P.C., v. Allstate Ins. Co., 2003 N.Y. Misc. LEXIS 413, 2003 NY Slip Op 50672[U] (App. Term 2nd Dept.)<br />
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- “It is not for a judge to second-guess a doctor who decides that a medical tests is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient. Thus, while it may be possible to make out a prima facie case for the affirmative defense of lack of medical necessity for services or treatment with a file-based peer review, it is not possible to do so with regard to a test performed within a reasonable time following an accident and prior to the patient even arguably reaching maximum medical improvement. … [T]he court cannot apply hindsight and conclude that the plaintiff’s doctor was wrong to prescribe the test because the findings on the test did not result in a material change in the course of treatment.“ Alliance Medical Office, P.C., v. Allstate Insuracne Company 196 Misc.2d 268; 764 N.Y.S.2dk 2003 N.Y. Misc. KEXIS 794<br />
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- “[W]hile the Appellate Term has indicated that “file-based peer review” can raise a triable issue of fact such that plaintiff would not be entitled to summary judgment, (Park Health Ctr. Rockaway Blvd. Med. P.C. v. State Wide Ins. Co., 2003 N.Y. Misc. LEXIS 623, 2003 NY Slip Op 50921(U) (2nd Dept.). Rockaway Blvd. Med. P.C. v. Travelers Prop. Cas. Corp., 2003 N.Y. Misc. LEXIS 485, 2003 NY Slip Op 50842(U)(2003) (referring to 11 NYCRR 65-3.8 [b][4])), there is no case that states that file-based peer review is sufficient to meet defendant’s burden at trial with regard to a diagnostic test, after testimony by plaintiff’s treating doctor that the test was necessary for hid diagnosis and treatment.<br />
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- “…health services should be necessary for treatment of the injures sustained…” 11NYCRR §65.15(o)(vi) and 11NYCRR 65-1.1, Section 1.<br />
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- 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).<br />
Peer Review that “concludes that there was no medical necessity due to the lack of sufficient information upon which the reviewer could make such a determination”, is insufficient because the insurer did not “fully and explicitly” set forth the reasons for the denial of claim, “did not inform (the provider) of</div>Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0tag:blogger.com,1999:blog-866288175317141122.post-61951858262786052122007-11-21T21:51:00.000-08:002009-09-11T13:04:10.708-07:00Insufficient Denial<div align="justify">- “The defendant is required to either to pay or deny the plaintiff’s claims “within 30 calendar days after proof of claim [was] received.” 11 NYCRR 65-3.8(c) A proper denial of a claim must include the information called for in the prescribed denial of claim form (11 NYCRR 65-3.4[c][11]) and must “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (<a title="Full Text" href="http://www.blogger.com/1%20Poor%20Claim%20Handling/2%20Improper%20Denials/4%20Vague%20(Insufficient)%20Denial/Supporting%20Cases/General%20Accident%20Insurance%20Group%20v.%20Celia%20Cirucci%20and%20Aetna%20Life%20&%20Casualty%20Company.doc">General Acc. Ins. Group v. Cirucci</a>, 46 N.Y.2d 862, 864, 387 N.E.2d 223, 414 N.Y.S.2d 512 [1979]; Accord Halali v. Evanston Ins. Co., 8 A.D.3d 431, 779 N.Y.S.2d 119; Hereford Ins. Co. v. Mohammod, 7 A.D.3d 490, 776 N.Y.S.2d 87). “An insurer which fail to properly deny a claim within the 30 days as required by these statutory provisions may be precluded form interposing a defense to the Plaintiff’s lawsuit”(Mount Sinai Hosp. v Triboro Coach, 236 A.D.2d 11, 16, 699 N.Y.S.2d 77; see e.g. Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 N.Y.2d 274, 283, 683, N.E.2d 1, 660 N.Y.S.2d 536 [hereinafter Presbyterian I]; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 A.D.2d 583, 584, 744 N.Y.S2d 201; New York and Presbyt. Hosp. v Empire Ins. Co. 286 A.D.2d 322, 728 N.Y.S.2d 684; Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 226 A.D.2d 613, 541 N.Y.S.2d 395 [hereinafter Presbyterian II]). Moreover, “[a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense<br />
which has no merit as a matter of law” (Amaze Med. Supply v. Allstate Ins. Co., 3 Misc 3d 43, 44 779 N.Y.S.2d 715)”. <a title="Full Text" href="http://www.blogger.com/1%20Poor%20Claim%20Handling/2%20Improper%20Denials/4%20Vague%20(Insufficient)%20Denial/Supporting%20Cases/Nyack%20Hospital%20v%20State%20Farm%20Mutual%20Automobile%20Insurance%20Company.doc">Nyack Hospital, etc. v. State Farm Mutual Automobile Insurance Company</a> 11 A.D.3d 664; 784 N.Y.S.2d 136; 2004 N.Y. App. Div. Lexis 12514.<br />
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- “The defendant’s contention that it supplied the missing information, is without merit, as the defective claim could not be corrected, nunc pro tunc, through information supplied after the regulatory 30-day period expired. Indeed, the statutory goal of ensuring the prompt payment or denial of claims would be materially frustrated if insurance were permitted to file timely but factually defective denial of claim forms, to be supplemented only after the expiration of the 30-day period prescribed by 11 NYCRR 65-3.8“.<a title="Full Text" href="http://www.blogger.com/1%20Poor%20Claim%20Handling/2%20Improper%20Denials/4%20Vague%20(Insufficient)%20Denial/Supporting%20Cases/Nyack%20Hospital%20v%20State%20Farm%20Mutual%20Automobile%20Insurance%20Company.doc">Nyack Hospital, etc. v. State Farm Mutual Automobile Insurance Company</a> 11 A.D.3d 664; 784 N.Y.S.2d 136; 2004 N.Y. App. Div. Lexis 12514.<br />
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- 11 NYCRR 65.15(g)(3)(i) clearly states that: “If the insurer denies a claim in whole or in part… the insurer shall notify the applicant.” The “applicant” is clearly identified in the top center of each bill submitted as: “OMNI Medical Services, P.C.” Omni’s Brooklyn address follows. <a href="http://www.blogger.com/Oppositions/Aniceto%20Gonzalez.doc">Aniceto Gonzalez</a></div>Leonid Barinshteynhttp://www.blogger.com/profile/08050362003288462382noreply@blogger.com0