August 16, 2011

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 51603(U))

https://www.beynensonlaw.com/case-law/jesa-med-supply-inc-v-progressive-ins-co-2011-ny-slip-op-51603u/

Court: Appellate Term, Second Department
Decided: August 16, 2011
Citation: 2011 NY Slip Op 51603(U) · 32 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Medical necessity
Legal questions: Lack of medical necessity · Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Jesa Med. Supply, Inc. v Progressive Ins. Co., 32 Misc 3d 141(A), 2011 NY Slip Op 51603(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

The insurer established that two claims were premature for outstanding verification and a third lacked medical necessity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider summary judgment on the two premature claims, and granted the insurer's cross motion dismissing the complaint. The insurer proved timely mailing of initial and follow-up verification requests to the provider and prescribing doctor, and nonreceipt of the requested information. The provider did not show verification was supplied before suit, so the 30-day payment period had not begun under 11 NYCRR 65-3.8 (a). For the remaining claim, a timely denial and affirmed IME report established a factual basis and medical rationale for lack of necessity. The provider offered no medical rebuttal.

Reported in New York Official Reports at Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 51603(U))

[*1]

Jesa Med. Supply, Inc. v Progressive Ins. Co.

2011 NY Slip Op 51603(U) [32 Misc 3d 141(A)]

Decided on August 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1142 K C.

Jesa Medical Supply, Inc. as Assignee of GRIGORYAN ARIS, Respondent,
against
Progressive Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 6, 2009. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment as to claims for the sums of $1,205.50 and $1,675 and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff’s motion seeking summary judgment as to the claims for the sums of $1,205.50 and $1,675 are denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action, insofar as it pertained to plaintiff’s claims seeking to recover the sums of $1,205.50 and $1,675, was premature because it was commenced before defendant had received responses to its outstanding verification requests, and on the ground of lack of medical necessity as to plaintiff’s claim for $502.63. The Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the $1,205.50 and $1,675 claims, and denied defendant’s cross motion for summary judgment, finding that a triable issue of fact exists as to the medical necessity of plaintiff’s $502.63 claim. This appeal by defendant ensued.

The affidavit of defendant’s litigation representative established that defendant had timely mailed its request and follow-up request for verification in accordance with its standard office practices and procedures to plaintiff and to the doctor who had prescribed the medical supplies at [*2]issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay the $1,205.50 and $1,675 claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]), and, thus, plaintiff’s action with respect to the $1,205.50 and $1,675 claims is premature.

With respect to the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover the sum of $502.63, defendant demonstrated that it had timely denied the $502.63 claim on the ground of lack of medical necessity based upon an affirmed independent medical examination (IME) report (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d at 17-18). The IME report set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the supplies at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to submit any medical evidence to rebut defendant’s showing of lack of medical necessity, the branch of defendant’s cross motion seeking summary judgment dismissing the $502.63 claim should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Nat. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff’s motion seeking summary judgment as to the claims for the sums of $1,205.50 and $1,675 are denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted. Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: August 16, 2011

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.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the affirmed IME report set forth a factual basis and medical rationale for lack of medical necessity and the provider offered no medical rebuttal, so the insurer was granted summary judgment on that claim.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature

Held the insurer never received the verification it timely requested and followed up on, and the provider showed none was provided before suit, so the action on two claims was premature.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the litigation representative's affidavit of standard office practice established timely mailing of verification requests and follow-ups to the provider and prescribing doctor, and timely denial of the remaining claim.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))The provider's action was premature because requested verification remained outstanding and the insurer's time to pay or deny had not begun.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.
Compas Med., P.C. v GEICO Ins. Co. (2014 NY Slip Op 51857(U))The insurer proved lack of medical necessity for one claim but failed to establish its payment, late-submission and fee-schedule defenses.
J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient.