December 19, 2011
Brownsville Advance Med., P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 52255(U))
https://www.beynensonlaw.com/case-law/brownsville-advance-med-p-c-v-country-wide-ins-co-2011-ny-slip-op52255u/
- Judge
- Hirsh, J.
- Decided
- December 19, 2011
- Citation
- 2011 NY Slip Op 52255(U) · 33 Misc 3d 1236(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1 and contrasted (cf., but see) in 1 later decisions (see Cited by)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Brownsville Advance Med., P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 52255(U))
| Brownsville Advance Med., P.C. v Country-Wide Ins. Co. |
| 2011 NY Slip Op 52255(U) [33 Misc 3d 1236(A)] |
| Decided on December 19, 2011 |
| District Court Of Nassau County, First District |
| Hirsh, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
District Court of Nassau County, First District
Brownsville Advance
Medical, P.C., as Assignee of ALEJANDRO RAMOS, Plaintiff,
against Country-Wide Insurance Company, Defendant. |
CV-046441-10
Fred J. Hirsh, J.
Defendant Country-Wide Insurance Company (“Country-Wide”) moves for summary judgment on the grounds the action is premature because plaintiff Brownsville Advance Medical, P.C. (“Brownsville”) failed to respond to Country-Wide’s verification demands.
This motion raises significant issues regarding an insurer’s repeated demand for verification from the same provider where the information demanded has previously been provided or where the information demanded is public record.
BACKGROUND
On March 31, 2010, Brownsville provided medical care and treatment to Alejandro Ramos (“Ramos”) for injuries sustained in a February 1, 2010 motor vehicle accident. Ramos assigned his right to receive no-fault benefits for the treatment provided on March 31, 2010 to Brownsville. Brownsville submitted the claim for treatment to Country-Wide.
Country-Wide acknowledges and admits to receipt of the claim on April 19, 2010.
Country-Wide mailed a verification request to Brownsville dated April 23, 2010. The verification request a completed NF-3 signed by the doctor “no stamps or initials with Q.16 listing of all treating providers & Q.17 listing of all owners” and “corporation with their license number, (Rev 1/04) Assignment of Benefits signed no stamps or initials and medical notes”. Country-Wide asserts Brownsville did not respond or object to this verification request.
Country-wide mailed a follow-up verification request to Brownsville dated May 24, 2010.
Country-Wide asserts Brownsville did not respond or object to the follow-up verification request.
Brownsville claims the repeated verification requests it has received from Country-Wide are unduly burdensome and designed to harass Brownsville. Brownsville asserts Country-Wide has responded to its no-fault claims by demanding identical verification for every claim it submits. Country-wide has mailed an identical verification request to Brownsville in response to at least seven separate claims. Brownsville [*2]claims it should not be required to repeatedly provide the same documentation especially since it has provided this information to Country-Wide previously.
Country-Wide moves for summary judgment asserting the claim is premature because it does not have to pay or deny the claim until Brownsville provides the demanded verification.
DISCUSSION
An insurer has 30 days from the date of receipt of a no-fault claim to pay or deny the claim. 11 NYCRR 65-3.8.
An insurer can toll or extend its time to pay or deny a no-fault claim by making a request for verification within 15 business days of receipt of the claim. Hospital for Joint Disease v. New York Central Mutual Fire Ins. Co., 44 AD3d 903 (2nd Dept. 2007); and 11 NYCRR 65-3.5(b).
If the verification requested by the insurer has not been provided within 30 days, the insurer must follow-up by telephone or mail within 10 calendar days. 11 NYCRR 65-3.6(b).
An insurer does not have to pay or deny a claim until all demanded verification has been provided. St. Barnabas Hosp. v. American Transit Ins. Co., 57 AD3d 517 (2nd Dept. 2008); and New York & Presbyterian Hosp. v. Allstate Ins. Co., 31 AD3d 512 (2nd Dept. 2006).
Verification extends an insurer’s time to pay or deny a claim by permitting the insurer to demand and obtain information needed to establish proof of claim so the insurer can properly determine whether the claim should be paid or denied. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and 11 NYCRR 65-3.5(b).
Country-Wide demanded as part of its verification a completed NF-3. An NF-3 is the New York Motor Vehicle No-Fault Insurance Law Verification of Physician or Other Provider of Health Services claim form. See, 11 NYCRR Part 65 Appendix 13. This is the form prescribed by the no-fault regulations that all health care providers other than hospitals must submit to the insurer to make a claim for payment of no-fault benefits.
Country-Wide admits in its verification request it received Brownsville’s claim for payment of no-fault benefits, an NF-3, relating to the medical treatment provided to Ramos on March 31, 2010 on April 19, 2010. Country-Wide did not submit a copy of the NF-3 it received from Brownsville regarding its treatment of Ramos with its motion papers. However, the complaint filed with the court upon the commencement of this action contains has a copy of the assignment signed by Ramos and the NF-3 submitted by Brownsville. A review of the copy of the assignment and NF-3 on file with the court indicates Brownsville filed the required form containing all the required information in the required format.Country-Wide offers no explanation regarding any defects in the NF-3 or any reason why it needs any verification regarding this document.
The oft stated purpose of the New York State No-Fault Law is to insure prompt payment of medical claims arising from automobile accidents. Medical Society of the State of New York v. Serio, 100 NY2d 854 (2003). See, Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and Hospital for Joint Disease v. Travelers Property Casualty Ins. Co., 9 NY3d 312 (2007); and Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, rearg. denied 90 NY2d 937 (1997). [*3]This purpose is not served when an insurer repeatedly request the same verification from the same provider, especially in the situation where the material demanded has previously been provided or is readily obtainable from easily accessible public records.
Country-Wide has repeatedly requested the same verification it demanded from Brownsville in connection with this claim even though Brownsville has provided most if not all of the information to Country-Wide in connection with other claims.
Brownsville has provided Country-Wide a copy of its application for a taxpayer identification number, the document issued by the Internal Revenue Service issuing the taxpayer identification number, a copy of Brownsville certificate of incorporation and a copy of Dr. Tapper’s license in response to discovery demands served in other actions. A provider should not have to repeatedly provide documentation it has already provided unless the insurer can establish a reasonable basis and rational need for demanding this material anew.
The primary reason for seeking verification of the licensing status of a provider and/or the professional corporation making application for payment of no-fault benefits is to determine if the provider and/or the professional corporation is eligible to obtain payment of no-fault benefits. 11 NYCRR 65-3.16(a)(12).[FN1] Information regarding the corporate status of Brownsville and Dr. Tapper’s license are easily obtained on-line.
A check of the New York State Department of State Corporation and Business Entity publicly accessible, free, web-site data base shows that Brownsville is an active, domestic professional corporation.
A check of the New York State Department of Education Professional Licensing License Verification publicly accessible, free, web-site data base indicates Winston Anthony Tapper is a physician whose current license to practice medicine is valid through May 2012. This web site also contains Dr. Tapper’s license number, information about his education and the date he was first licensed to practice medicine in the New York.
The demand for information relating to a Mallela defense is not obtainable through verification. See, Dynamic Medical Imaging, P.C. v. State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 (District Ct. Nassau Co. 2010). The no-fault regulations permit an insurer to obtain in verification”…additional verification required by the insurer to establish proof of the claim.” 11 NYCRR 65-3.5(b).
A Mallela defense relates to the claimant, not to the claim. A successful Mallela defense permits an insurer to avoid paying an otherwise valid no-fault claims because the provider is not eligible to obtain payment of no-fault benefits because the entity providing the services is owned or significantly controlled by persons who are not licensed to practice the profession for which the professional business entity was formed. State Farm Mutual Automobile Ins. Co. v. Mallela, supra; and Andrew Carothers, M.D., P.C. v. Insurance Companies Represented by Bruno, Gerbino & Soriano, LLP, 26 Misc 3d 448 (Civil Ct. Richmond Co. 2009). – Dr. Carothers was [*4]denied payment for MRI’s performed by his professional corporation because the professional corporation was operated and controlled by persons not licensed to practice medicine.
Country-Wide’s repetitive verification demands upon Brownsville are contrary to 11 NYCRR 65-3.2(b) that provides an applicant or claimant should not be treated as an adversary and verification of facts should not be requested unless the insurer has a good reason for doing so. In this case, Country-Wide offers no reason why it has repeatedly demanded identical verification from Brownsville, even though the information demanded in the verification requests has previously been provided.
An insurer cannot obtain summary judgment when a provider fails to respond or object to a repetitive verification demand when the verification demand seeks information not relevant to the claim, has previously been provided to the insurer by the claimant, the material demanded can easily be obtained from free, publicly accessible sources and seeks material that cannot be obtained through verification.
Defendant’s motion for summary judgment is denied.
SO ORDERED:
Hon. Fred J. Hirsh
District Court Judge
Dated: December 19, 2011
cc:Friedman, Harfenist, Kraut & Perlstein, LLP
Jaffe & Koumourdas
Footnotes
Footnote 1:A provider of medical services cannot obtain payment of no-fault benefits if it does not have the appropriate and required license. See, State Farm Mutual Auto Ins. Co. v. Mallela, 4 NY3d 313 (2005); and 11 NYCRR 65-3.16(a)(12).
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Defense rejected because the insurer's requests or proof were deficient
Denied the insurer's prematurity motion because its repeated verification demands sought a properly completed NF-3 already received, documents previously supplied or publicly available, and Mallela material not obtainable through verification, so nonresponse did not toll.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?
This decision: Insurer may not pursue or investigate the Mallela defense here (rules on the question, but another ground decided the case)
Held that information relating to a Mallela defense concerns the claimant rather than the claim and cannot be demanded through claim verification, particularly where already provided or publicly available and no reason for the demand was given.
Of the 136 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: On the merits, the assignment or the claimant's showing is adequate, or the alleged defect is not a defect (rules on the question, but another ground decided the case)
Rejected the insurer's prematurity defense based on an unanswered verification demand that included a signed assignment, because the assignment and claim form on file were in the required form and the repetitive demand stated no reason or defect.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038)The hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
- St. Barnabas Hosp. v American Tr. Ins. Co. (2008 NY Slip Op 09585)The insurer raised a triable issue whether the provider timely complied with its verification demand, defeating the provider's summary judgment motion.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
- Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946) FollowedAn insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067)An insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
- Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 20285) FollowedAn insurer may not obtain summary judgment for EUO nonappearance based on a demand for advance production of corporate and financial records.
- Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno Gerbino & Soriano, LLP (2009 NY Slip Op 29413)A Mallela defense based on nonphysician ownership or control does not require proof of the elements of common-law fraud.
- State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416) FollowedFraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
Cited by
A label shows how the later decision treated this one.
- American Tr. Ins. Co. v PDA NY Chiropractic, P.C. (2023 NY Slip Op 50938(U)) DistinguishedA provider's substantial compliance with reasonable additional verification requests does not make its claims payable.
- HKP Physical Therapy, P.C. v Government Empls. Ins. Co. (2019 NY Slip Op 29381) Contrasted (cf., but see)An insurer may seek post-EUO verification of a pharmacy's eligibility for no-fault reimbursement upon a showing of good cause.
- Arthur Ave. Med. Servs., PC v GEICO Ins. Co. (2021 NY Slip Op 21108)An insurer's post-EUO verification requests concerning fraudulent incorporation are subject to judicial review for reasonableness.
Similar decisions
- Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2012 NY Slip Op 50676(U))An insurer may not use an EUO request to demand corporate records concerning a Mallela defense as verification of a claim.
- Victory Med. Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co. (2012 NY Slip Op 22149)A provider's reasoned objection to a verification request preserves its propriety for determination by the trier of fact.
- Island Chiropractic Testing, P.C. v Nationwide Ins. Co. (2012 NY Slip Op 51001(U))Corporate-status document demands directed at a Mallela defense do not toll the claim payment deadline as verification requests.
- Zwanger & Pesiri Radiology Group, LLP v Mapfre Ins. Co. (2017 NY Slip Op 50981(U))The insurer failed to establish proper mailing of verification requests and its denial, or that requested verification remained outstanding.
- Park Slope Med. & Surgical Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51063(U))An insurer's follow-up verification request sent on the 30th day after its initial request is timely under 11 NYCRR 65-3.6 (b).