November 16, 2018

Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51654(U))

https://www.beynensonlaw.com/case-law/pavlova-v-allstate-ins-co-2018-ny-slip-op-51654u/

Court: Appellate Term, Second Department
Decided: November 16, 2018
Citation: 2018 NY Slip Op 51654(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Fee schedule Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Pavlova v Allstate Ins. Co., 2018 NY Slip Op 51654(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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.

An insurer must request missing documentation for a "By Report" claim before denying payment for insufficient documentation. The provider billed services under CPT code 20999 without the additional documentation needed to determine reimbursement. Under 11 NYCRR 65-3.5 (b), an insurer unwilling to pay the claim as submitted must request necessary verification within 15 business days of receiving it. The insurer did not demonstrate such a request. The Appellate Term, Second Department, modified the Civil Court, Kings County, order, insofar as appealed from, to deny the insurer's cross motion concerning those services. It upheld denial of the provider's motion because the provider failed to show an untimely denial or a timely denial that was conclusory, vague, or legally meritless.

Reported in New York Official Reports at Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51654(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Ksenia Pavlova, D.O., as Assignee of Cosby Reavis, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wharburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 14, 2016. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover for services billed under CPT code 20999 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover for services billed under CPT code 20999 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.

As plaintiff failed to demonstrate prima facie that its claim for the services at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 [*2]AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), plaintiff failed to establish its prima facie entitlement to judgment as a matter of law with respect to its claim for these services. Consequently, plaintiff’s motion for summary judgment on the portion of the complaint that sought to recover for these services was properly denied.

It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 20999 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Thus, defendant’s denial of payment for the services billed under CPT code 20999 on the ground that plaintiff had failed to provide sufficient documentation, where defendant did not demonstrate that it had requested any such documentation, was not proper and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under that CPT code should have been denied.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018

Legal questions

A question 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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to show its claim for the code 20999 services had not been timely denied or that the timely denial was conclusory, vague or without merit, so its summary judgment motion was properly denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50101(U)) FollowedThe insurer failed to establish a fee-schedule defense for codes 97039 and 99199 because it did not request needed verification.

Similar decisions

Pavlova v Travelers Ins. Co. (2018 NY Slip Op 51555(U))The provider's affidavit raised a factual issue about receipt of verification and whether the disputed portion of the action was premature.
Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))The insurer's attorney's affirmation established the provider's EUO nonappearance, and the insurer's proof supported proper mailing of the denial.
Pavlova v 21st Century Ins. Co. (2022 NY Slip Op 50363(U))The insurer failed to establish a timely denial after the assignor's alleged failure to appear for an initial and a follow-up EUO. It therefore did not demonstrate that its EUO defense was free from preclusion, and summary judgment dismissing the complaint should have been denied.
Pavlova v Country Wide Ins. Co. (2018 NY Slip Op 50843(U))The insurer's cross motion for summary judgment was granted on the ground that it had issued no policy covering the loss.
Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51634(U))The insurer's summary judgment dismissing the complaint on the provider's EUO nonappearance was affirmed.