April 7, 2014

Rogy Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50629(U))

https://www.beynensonlaw.com/case-law/rogy-med-p-c-v-clarendon-natl-ins-co-2014-ny-slip-op50629u/

Court: Appellate Term, Second Department
Decided: April 7, 2014
Citation: 2014 NY Slip Op 50629(U) · 43 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Medical necessity Verification requests Fee schedule
Legal questions: Lack of medical necessity · Outstanding verification and premature actions · Proving a fee schedule defense (see the maps)

Cite as

Rogy Med., P.C. v Clarendon Natl. Ins. Co., 43 Misc 3d 133(A), 2014 NY Slip Op 50629(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 lack of medical necessity for three claims and outstanding verification for two, but failed on two others. Its affirmed peer review supplied unrebutted factual and medical grounds for denying three claims. For two undenied claims, the provider submitted no affidavit from someone with personal knowledge establishing responses to verification requests. Inaction was an improper response, so objections to the requests' reasonableness would not be heard. The insurer offered no proof of fee-schedule payment for another claim and did not address the final claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, granting the insurer summary judgment on the three medical-necessity and two verification claims while leaving the fee-schedule and unaddressed claims for trial.

Reported in New York Official Reports at Rogy Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50629(U))

[*1]

Rogy Med., P.C. v Clarendon Natl. Ins. Co.

2014 NY Slip Op 50629(U) [43 Misc 3d 133(A)]

Decided on April 7, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2404 K C.

Rogy Medical, P.C. as Assignee of TREAVON TIMMONS, Respondent,
against
Clarendon National Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 17, 2009. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon claims for $114.33 and $82.89, respectively; 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both the motion and the cross motion, but limited the issues for trial pursuant to CPLR 3212 (g), stating that “the only issues of fact are those of lack of medical necessity and whether [plaintiff] complied with [defendant’s] verification requests.” As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment.

It is undisputed that defendant denied three of the bills at issue, for $274.26 (date of service December 15, 2006), $248.67 and $274.26 (date of service January 30, 2007), respectively, on the ground that the services billed for were not medically necessary. In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and a medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for those services. Defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment as to these claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims should have been granted (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] 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]). [*2]

It is undisputed that defendant did not deny two bills, for $357.07 and $414.45, respectively. The Civil Court found a triable issue of fact as to whether plaintiff had complied with defendant’s requests for verification of these claims. However, plaintiff did not raise a triable issue of fact with respect to that issue, since it failed to submit an affidavit by an individual with personal knowledge establishing that it had responded to the requests. Morever, while plaintiff argues on appeal that a trial should be held as to the reasonableness of the requests, inaction is an improper response to a verification request, and therefore plaintiff’s objections regarding the requests will not now be heard (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999] Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010] Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment as to these claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims should have been granted.

Defendant failed to submit any proof in support of its defense that it had paid the claim for $114.33 in compliance with the workers’ compensation fee schedule. Defendant also failed to address the final claim at issue, for $82.89. Accordingly, the branches of its cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims were properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon claims for $114.33 and $82.89, respectively.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014

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 insurer's affirmed peer review with a factual basis and medical rationale established lack of medical necessity for three bills, and the provider offered no rebuttal.

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 provider raised no triable issue on compliance with verification requests for two undenied bills, lacking an affidavit of personal knowledge that it responded, and could not challenge the requests' reasonableness after inaction.

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.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)

Held the insurer submitted no proof that it had paid one claim in compliance with the workers' compensation fee schedule, so summary judgment on that claim was properly denied.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

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

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.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U)) FollowedThe insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U)) FollowedThe provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.

Cited by

A label shows how the later decision treated this one.

Compas Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51441(U)) FollowedAn insurer need not pay or deny a claim upon receiving only a partial response to its verification requests.
Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51511(U)) FollowedThe insurer established proper mailing of verification requests and nonreceipt of the requested verification, making the action premature.

Similar decisions

Crotona Hgts. Med., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50473(U))The provider's claims failed because verification remained outstanding and its medical evidence did not rebut the insurer's peer reviews.
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.
Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.
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.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U))The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.