November 13, 2006

Expo Med. Supplies, Inc. v St. Paul Fire & Mar. Ins. Co. (2006 NY Slip Op 52251(U))

https://www.beynensonlaw.com/case-law/expo-med-supplies-inc-v-st-paul-fire-mar-ins-co-2006-ny-slip-op-52251u/

Court: Appellate Term, Second Department
Decided: November 13, 2006
Citation: 2006 NY Slip Op 52251(U) · 13 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity Timeliness and preclusion

Cite as

Expo Med. Supplies, Inc. v St. Paul Fire & Mar. Ins. Co., 13 Misc 3d 140(A), 2006 NY Slip Op 52251(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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.

A timely denial may still preclude a medical-necessity defense if it is conclusory and the peer review is not timely supplied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment. The denial merely stated that a peer review found the supplies medically unnecessary. Under 11 NYCRR 65-3.8 (b) (4), the insurer need not attach the report, but must state the factual basis and medical rationale with particularity or supply the report within 30 days of claim receipt, absent tolling. The insurer proved neither a sufficient explanation nor timely delivery of the report. Attaching the report to opposition papers could not cure the deficient denial, so the defense was precluded.

Reported in New York Official Reports at Expo Med. Supplies, Inc. v St. Paul Fire & Mar. Ins. Co. (2006 NY Slip Op 52251(U))

[*1]

Expo Med. Supplies, Inc. v St. Paul Fire & Mar. Ins. Co.

2006 NY Slip Op 52251(U) [13 Misc 3d 140(A)]

Decided on November 13, 2006

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 13, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1779 K C.

Expo Medical Supplies, Inc., A/A/O RAMON DILONE, Respondent,
against
St. Paul Fire & Marine Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 26, 2005. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, the court below denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment on the ground that neither party had established its prima facie entitlement to judgment as a matter of law by competent
proof in admissible form. Defendant appeals from so much of the order as denied its cross motion for summary judgment and we affirm.

Defendant timely denied the claim citing a peer review report which, according to the denial form, “revealed that the service provided was not medically necessary.” The denial form did not indicate that the peer review report was attached to the denial. Nor did defendant’s affiant state in its cross motion papers that the report was ever mailed to plaintiff, much less that defendant did so within 30 days of the claim’s receipt. The denial form otherwise contained no facts to satisfy the statutory claim form’s requirement that the insurer: “State reason for denial, [*2]fully and explicitly (attach extra sheets if needed)”. Even a timely denial does not avoid the preclusion sanction “where said denial is factually insufficient, conclusory or vague” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30, 31 [App Term, 2d & 11th Jud Dists 2006]; see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). While an insurer is not required to attach the peer review report to its denial of claim form (as implied by 11 NYCRR 65-3.8 [b] [4]), in such a case the denial form itself must set forth, with the requisite particularity, the factual basis and medical rationale for the denial (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11thain Jud Dists 2005]), or at the very least, the insurer must supply claimant with the report within 30 days of the claim’s receipt, absent a tolling of the statutory claim determination period (SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists 2006]). As defendant proved compliance with neither rule, it is precluded from asserting the defense (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra; see also A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra [a denial form’s factual insufficiency with respect to a lack of medical necessity defense is not cured by attaching a peer review report to papers opposing a motion for summary judgment]). In the absence of any other ground to support its cross motion, defendant failed to establish its prima facie entitlement to summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 13, 2006

Cited in this decision

A label shows how this decision treated the case it cites.

A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2006 NY Slip Op 26133) FollowedA timely medical-necessity denial must state a sufficiently particular factual basis and medical rationale to avoid preclusion.
Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119) FollowedAn insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.
A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U))A sufficient peer review report cannot cure a denial that omits the factual basis and medical rationale for lack of medical necessity.
SZ Med. P.C. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51428(U)) FollowedThe insurer's timely denial lacked a factual basis or medical rationale, precluding its medical-necessity defense.

Similar decisions

Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 28341)An insurer's failure to supply a requested peer review report does not preclude its medical-necessity defense.
Contempo Med. Care, P.C. v Travelers Indem. Ins. Co. (2006 NY Slip Op 51338(U))The insurer's vague medical-necessity denials did not establish entitlement to partial summary judgment.
Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp. (2005 NY Slip Op 50452(U))An insurer need not seek further verification when a peer review finds no substantiation of equipment's medical necessity in documents obtained for review.
Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 51412(U))The insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity.
Be Well Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50346(U))The insurer's late denial barred its medical-necessity defense to the first claim, but unrebutted peer review defeated the second.