Appellate Division, Second Department
Nov 28, 2006
2006 NY Slip Op 08953
Insurer prevailed
An insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline. The Appellate Division, Second Department, reversed the order and denied the provider's summary judgment motion. Under 11 NYCRR 65-3.5 (b), Insurance Law § 5106 (a), and 11 NYCRR 65-3.8 (a) (1) and 11 NYCRR 65-3.8 (a) (2), the request tolled payment or denial until the requested information arrived; the insurer's subsequent partial payment and denial were timely. Admissible evidence established proper prior payments to other providers under 11 NYCRR 65-3.15. Policy exhaustion remained a triable issue because the employee's affidavit asserted exhaustion, but the business-record payment register showed benefits exceeding the provider's bill. That issue awaited further proceedings.
Appellate Division, Second Department
Nov 14, 2006
2006 NY Slip Op 08214
Provider prevailed
An insurer waives claim-form and assignment defenses by failing to timely object to form adequacy or seek assignment verification. The Appellate Division, Second Department, affirmed summary judgment for the hospital on the third cause of action and denial of the insurers' cross motion to dismiss that cause of action. The hospital established entitlement through its bill, a signed certified-mail return receipt, and its third-party biller's affidavit confirming billing and the absence of payment or a denial. The insurers raised no triable issue and failed to establish entitlement on their cross motion. Their failure to timely challenge the forms or request assignment verification waived those defenses.
Appellate Division, Second Department
Nov 8, 2006
2006 NY Slip Op 08131
Provider prevailed
A notice of intention to arbitrate that complies with CPLR 7503 (c) starts the 20-day stay period despite deficiencies under AAA rules. The Appellate Division, Second Department, reversed the order staying uninsured motorist arbitration and granted the injured claimant's motion to dismiss the insurer's proceeding as untimely. The claimant's earlier certified-mail letter contained the statutory notice and warning that objections would be precluded absent a stay application within 20 days. The insurer applied within 20 days of a later arbitration demand, but more than 20 days after service of the earlier notice. Compliance with CPLR 7503 (c), rather than American Arbitration Association rules, controlled, so the earlier notice triggered the limitation period.
Appellate Term, Second Department
Nov 28, 2006
2006 NY Slip Op 26485
Provider prevailed
A medical-necessity denial must state its factual basis and medical rationale; merely referring to a peer review or IME report is insufficient. The provider established its prima facie case through four claims and the insurer's denial forms. Although timely, the denials were conclusory. Under 11 NYCRR 65-3.2 (e) and 65-3.8 (b) (4), the insurer need not attach the reports, but must specify the grounds at the claim stage. Later reports could not cure deficient denials; their evidentiary sufficiency was not reached. The Appellate Term, Second Department, reversed, granted the provider's summary judgment motion, denied the insurer's cross motion, and remanded for interest and attorney's fees under Insurance Law § 5106 (a); a separate concurrence disagreed with the specificity requirement.
Appellate Term, Second Department
Nov 17, 2006
2006 NY Slip Op 52273(U)
Provider prevailed
The insurer's mailing affidavit was inadmissible under CPLR 2309 (c), precluding its medical-necessity defense for lack of timely denial proof. The Appellate Term, Second Department, reversed the order, granted the provider summary judgment, and remanded for statutory interest and attorney's fees under Insurance Law § 5106. The provider had objected below to the employee's sworn statement for noncompliance with CPLR 2309 (c). Without admissible proof that the denials were timely mailed, the insurer could not assert lack of medical necessity. A separate concurrence emphasized the missing certificate of conformity for the affidavit notarized outside New York and declined to review unpreserved challenges to the provider's corporate-officer affidavit and business-record foundation.
Appellate Term, Second Department
Nov 17, 2006
2006 NY Slip Op 52266(U)
Provider prevailed
The insurer's unproved mailing of EUO requests left its denial untimely and precluded its excessive-billing and medical-necessity fraud defense. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a). The insurer's denial corresponded to the claim forms and established submission and receipt. Although timely verification requests could toll the determination period under 11 NYCRR 65-3.5 and 65-3.8 (a) (1), no evidence established mailing of the EUO requests. The alleged scheme involving the provider and equipment wholesalers concerned excessive billing or unnecessary services, not a staged accident or injury outside an insured incident, and was subject to the 30-day preclusion rule.
Appellate Term, Second Department
Nov 17, 2006
2006 NY Slip Op 52267(U)
Insurer prevailed
A summary judgment motion does not stay discovery under CPLR 3214 (b) when the court has expressly required compliance despite the motion. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal of its complaint under CPLR 3126. A so-ordered stipulation required the provider to appear for a deposition by a specified deadline or face preclusion, and barred adjournments without court approval except for the provider's summary judgment motion. The provider instead served that motion just before the deposition deadline and failed to appear. The exception permitted adjournment of the motion deadline, not the discovery deadline. The stipulation required strict compliance with discovery regardless of service of a summary judgment motion.
Appellate Term, Second Department
Nov 17, 2006
2006 NY Slip Op 52270(U)
Split result
The provider failed to prove claim mailing, and the insurer failed to prove nonreceipt or untimely submission; neither obtained summary judgment. The Appellate Term, Second Department, modified the order by denying the insurer's cross motion and otherwise affirmed, leaving the provider's motion denied. Proof of submission of a claim stating the fact and amount of the loss was essential under Insurance Law § 5106 (a). The provider's failure to prove mailing meant the burden never shifted. The insurer likewise offered no admissible evidence of nonreceipt or late submission, relying only on counsel's conclusory assertion that the provider could not show timely mailing. That assertion did not establish the insurer's entitlement to dismissal.
Appellate Term, Second Department
Nov 15, 2006
2006 NY Slip Op 52256(U)
Provider prevailed
The insurer failed to prove mailing of IME requests and therefore failed to establish tolling or timely denial of the provider's claims. The Appellate Term, Second Department, affirmed the judgment awarding the provider partial summary judgment on four claims. Corresponding denial forms established submission and receipt for the provider's prima facie showing under Insurance Law § 5106 (a). Although a post-claim IME verification request could toll the 30-day determination period, the no-fault specialist neither claimed personal knowledge of mailing nor adequately described a standard mailing practice. The insurer thus failed to establish timely denials based on IME nonappearance and fee-schedule objections. The court concluded that lack-of-medical-necessity and excessive-fee defenses were precluded.
Appellate Term, Second Department
Nov 15, 2006
2006 NY Slip Op 52255(U)
Insurer prevailed
An arbitration award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The Appellate Term, Second Department, modified the order to confirm the master arbitrator's award and otherwise affirmed, leaving the insurer's denial of benefits intact. Review of the record disclosed a rational basis for the master arbitrator's determination upholding the arbitrator's denial of the provider's claims. The court also noted that under CPLR 411 a special proceeding should terminate in a judgment rather than an order.
Appellate Term, Second Department
Nov 13, 2006
2006 NY Slip Op 52250(U)
Provider prevailed
The insurer's causation report was inadmissible, and curing it for the first time in sur-reply did not defeat the provider's summary judgment motion. The Appellate Term, Second Department, affirmed summary judgment for the provider and denial of the insurer's cross motion. The denial acknowledged claim receipt, curing any mailing deficiency in the provider's proof under Insurance Law § 5106 (a). A verification request issued 66 days after receipt was untimely under 11 NYCRR 65-3.5 (a), (b) and 65-3.8 (a) (1), leaving the denial untimely. Although the lack-of-causal-nexus defense survived preclusion, the low-impact report was initially inadmissible. The later affidavit was properly disregarded because the provider had no opportunity to respond, and could not be considered on appeal.
Appellate Term, Second Department
Nov 13, 2006
2006 NY Slip Op 52251(U)
Provider prevailed
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.
Appellate Term, First Department
Nov 9, 2006
2006 NY Slip Op 52118(U)
Provider prevailed
A medical corporation may recover assigned no-fault benefits for licensed nonphysician employees' services billed at their fee schedules. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment. The provider was duly formed, its sole shareholder was licensed under Business Corporation Law § 1503 (b), and licensed employees rendered the chiropractic and acupuncture services. The insurer offered no proof of fraudulent licensing under Business Corporation Law § 1507 or ineligibility under 11 NYCRR 65-3.16 (a) (12). Deferring to the Insurance Department's interpretation, the court rejected the contention that employing licensed nonphysicians violated Business Corporation Law § 1506 by engaging in a business outside the corporation's authorized professional services.
Appellate Term, Second Department
Nov 9, 2006
2006 NY Slip Op 52248(U)
Insurer prevailed
The master arbitrator's approval of the interest calculation had a rational basis, defeating the provider's petition to vacate. The Appellate Term, Second Department, affirmed denial of the provider's petition against MVAIC and modified the order to confirm the master arbitrator's award. The record supported the master arbitrator's determination upholding the arbitrator's interest calculation. Upon denying vacatur, confirmation was required by CPLR 7511 (e). The court also noted that a special proceeding should terminate in a judgment rather than an order under CPLR 411.
Appellate Term, First Department
Nov 9, 2006
2006 NY Slip Op 52117(U)
Insurer prevailed
The insurer was entitled to discovery on medical necessity and fraudulent billing because the record established timely denials. The Appellate Term, First Department, reversed the order denying the insurer's discovery motion and granted the motion, including a physician's deposition. The assignor attended an IME scheduled within 30 days after claim receipt, satisfying 11 NYCRR 65-3.5 (d). The provider's counsel acknowledged receipt of the denial in a letter, establishing that the claim was denied within 30 days after the IME under 11 NYCRR 65-3.8 (a) (1). Those timely denials supported discovery concerning the insurer's asserted defenses.
Appellate Term, Second Department
Nov 8, 2006
2006 NY Slip Op 52244(U)
Insurer prevailed
A denial citing a peer review preserves medical necessity when a factually sufficient report is supplied within the 30-day determination period. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment to the provider on five claims. The provider challenged the denial forms for referring to accompanying peer-review reports rather than stating the full grounds on the forms themselves. The insurer established timely provision of factually sufficient reports, preserving its defense. In opposition to summary judgment, the insurer also supplied the peer reviewer's affidavit incorporating the unsworn report, so the provider was not entitled to judgment on those claims.
Appellate Term, Second Department
Nov 2, 2006
2006 NY Slip Op 52241(U)
Insurer prevailed
The provider failed to establish prima facie entitlement to partial summary judgment because it omitted the claim forms from its moving papers. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion without prejudice to renewal on proper papers. To establish entitlement under Insurance Law § 5106 (a), the provider was required to attach the claim forms sued upon. The record showed that no exhibits accompanied the motion. A document purporting to contain the motion exhibits had been rejected below and was not considered. The provider's contention concerning the insurer's exhibits lacked merit.
Appellate Term, Second Department
Nov 2, 2006
2006 NY Slip Op 52236(U)
Insurer prevailed
The insurer's investigator established a founded belief that the injuries did not arise from an insured incident, raising a coverage issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. The denial covering all claims cured the provider's deficient mailing proof and established its prima facie case under Insurance Law § 5106 (a). The insurer failed to deny within 30 days under 11 NYCRR 65-3.8 (c) or establish timely verification requests under 11 NYCRR 65-3.5 (a), (b). Although other defenses were precluded, the alleged collision in furtherance of an insurance fraud scheme remained a coverage defense. The investigator's affidavit raised a triable issue under Central Gen. Hosp. v Chubb Group of Ins. Cos.
Appellate Term, Second Department
Nov 2, 2006
2006 NY Slip Op 52238(U)
Insurer prevailed
The insurer raised a triable issue by showing notice of pre-claim IMEs, announced nonattendance, and timely denials based on nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. The provider established its prima facie case; lack of authentication of the assignor's signature alone was no defect absent a statutory or regulatory requirement. The insurer showed that the assignor received the IME request and that, before the scheduled examinations, it received a telephone call stating the assignor would not attend. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the timely denials for pre-claim IME nonappearance rebutted the presumption of medical necessity and raised a factual issue.
Appellate Term, Second Department
Nov 2, 2006
2006 NY Slip Op 52239(U)
Insurer prevailed
The insurer raised a triable issue by showing notice of pre-claim IMEs, announced nonattendance, and timely denials based on nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. The provider established its prima facie case; lack of authentication of the assignor's signature alone was no defect absent a statutory or regulatory requirement. The insurer showed that the assignor received the IME request and that, before the scheduled examinations, it received a telephone call stating the assignor would not attend. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the timely denials for pre-claim IME nonappearance rebutted the presumption of medical necessity and raised a factual issue.
Trial court, Second Department
Nov 20, 2006
2006 NY Slip Op 52387(U)
Provider prevailed
The insurer failed to prove lack of medical necessity through an unauthorized deposition and unsupported peer-review opinion. The Civil Court, Queens County, entered judgment after trial for the provider. The insurer took its expert's deposition three months after the notice of trial without seeking permission under 22 NYCRR 208.17 (d) or showing unusual or unanticipated conditions. Although CPLR 3117 (a) (4) permits use of a physician's deposition, the opinion relied on records neither admitted into evidence nor shown reliable, making it inadmissible under Wagman v Bradshaw. Even if admitted, the opinion lacked a sufficient factual basis and medical rationale. The treating physician's live rebuttal testimony contradicted the expert's assertion that consistent upper-extremity complaints were undocumented.
Trial court, Second Department
Nov 14, 2006
2006 NY Slip Op 52328(U)
Provider prevailed
The insurer failed to prove lack of medical necessity through a peer-review report admitted only to establish claim receipt and timely denial. The Civil Court, Kings County, awarded judgment after trial to the provider. The assignment established standing, and the provider's contract with its billing company had no bearing on that issue. The billing company's office manager laid a business-record foundation under CPLR 4518 (a) because the company routinely incorporated the provider's information into records maintained in its regular business. The insurer called no witnesses and introduced no evidence. The provider's submission of the denial with its attached peer review for completeness did not make the report available to satisfy the insurer's burden on medical necessity.
Trial court, Second Department
Nov 2, 2006
2006 NY Slip Op 52154(U)
Provider prevailed
The insurer failed to prove that independent contractors rendered the services or to rebut the presumption of medical necessity. The Civil Court, Kings County, granted the provider a directed verdict after a bench trial. Although services performed by independent contractors would not entitle the provider to direct payment, the insurer offered no evidence of that relationship. Omitting the relationship between the provider and treating physician from the bills did not defeat the prima facie showing. The billing agent's employee established a foundation for records relied upon in the agent's business. The insurer offered no testimony or documentary evidence, and its cross-examination did not rebut medical necessity. Judgment included statutory interest and attorney's fees.
