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Bayside Rehab. & Physical Therapy P.C. v. GEICO Insurance Co.

April 3, 2009


The opinion of the court was delivered by: Katherine A. Levine, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

This case presents the novel issue of whether an insurance company must notify prospective medical service providers that it will not reimburse them for any services they may provide to an assignor services after a determination has been made, pursuant to an independent medical examination ("IME") performed on the assignor, that further medical services are not medically necessary. As will be set forth below, since the notice requirements for verification requests, as contained in 11 NYCRR §§65 -3.5 and 3.6, do not apply to IMEs that are noticed and performed prior to the insurance company's receipt of claim forms ("pre claim IME's), such notification is not necessary.

Plaintiff Bayside Rehab & Physical Therapy, P.C., ("plaintiff" or "Bayside" or "assignee"), a medical service provider, brings this action pursuant to Insurance Law § 5106(a) seeking to recover $814.19 and $1,131.47 for services it provided to its assignors Aleisha Allen ("Aleisha") and Angela Allen ("Angela")(collectively referred to as the "Allens" or "assignor"), for injuries they sustained in an automobile accident. Bayside moves for summary judgment based upon a claimed prima facie showing that its bills were properly submitted and that the defendant Geico Insurance Company ("defendant" or "Geico") failed to pay or deny the claims within 30 days.

Defendant claims that plaintiff is not entitled to summary judgment because it failed to provide adequate proof that its claims were generated or mailed within the regular course of business. In the alternative, defendant argues that plaintiff failed to submit several claims within the statutorily prescribed period of 45 days as prescribed by 11 NYCRR 65-1.1. In its reply papers, plaintiff contends that since the defendant did not notify it about the IME cut-off, it was "not-fair" and "not-proper" for defendant to issue a denial of claims based upon the IME cut-off. Defendant responded, during oral argument, that because it informed the assignors that no more benefits would be paid as a result of the IME, the assignors were under an obligation to inform any future medical providers of this determination of lack of medical necessity. In light of the above, defendant contends that the matter should proceed to trial.

The Allens were involved in an automobile accident on June 17, 2006. Pursuant to a request by defendant, the assignors underwent IMEs by three different doctors on November 2, 2006. The three doctors determined that no further orthopedic, chiropractic, acupuncture or other types of medical services were medically necessary for the injuries suffered by either Allen related to the accident. Defendant Geico thereupon terminated all benefits for the various types of medical treatment indicated in the IME reports, effective November 9, 2006. Absent from defendant's papers is any indication as to how or if defendant notified the assignors of the termination of benefits much less notification of the IME cut-off to plaintiffs.

Plaintiff subsequently provided medical services to both assignors in the Spring of 2007 and submitted two bills on behalf of Aleisha on May 17, 2007 and June 12, 2007, respectively and three bills on behalf of Angela on May 17, June 6 and June 19, 2007, respectively. Defendant denied the May 17, 2007 bill based on plaintiff's non-compliance with the 45 day rule and denied all the bills based on lack of medical necessity pursuant to the IME cut-off date of November 9, 2006.

To grant summary judgment, "it must clearly appear that no material and triable issue of fact is presented." Forrest v. Jewish Guild for the Blind, 3 NY3d 295(2004); Zuckerman v. City of New York, 49 NY2d 557(1980). See, Manhattan Medical Imaging P.C. v. State Farm Mut. Auto Ins. Co., 2008 NY Slip. Op. 51844U, 20 Misc 3d 1144A (Civil Ct., Richmond Co. 2008). A plaintiff establishes a prima facie entitlement to judgment as a matter of law "by submitting evidentiary proof that the prescribed statutory billing form has been mailed and received, and that payment of no-fault benefits was overdue." Mary Immaculate Hosp. v. Allstate Ins., 5 AD3d 742, 743 (2d Dept. 2004); Second Medical v. Auto One Ins., 20 Misc 3d 291, 293 (Civil Ct., Kings Co. 2008).

To lay a proper evidentiary foundation on a summary judgment motion that the tendered records were produced within the regular course of a medical provider's business, plaintiff must provide a supporting affidavit by an individual who possesses personal knowledge of the office practices. Complete Orthopedic Supplies v. State Farm Ins. Co., 16 Misc 3d 996, 999 (Civil Ct., Queens Co. 2007), citing CPLR 4518(a); North Acupuncture, PC v. State Farm Ins. Co., 14 Misc 3d 129A, 836 NYS2d 487 (App. Term., 2d Dept. 2006); Dan Medical, PC v. New York Central Mutual Ins. Co., 14 Misc 3d 44, 45 (App. Term 2d Dept. 2006). Plaintiff meets this burden by providing an affidavit of its business manager who exhaustively details the record keeping procedures of the business that created the records and clearly details the dates of the services, the amounts due, and her personal knowledge of the billing practices. Manhattan Medical Imaging, PC v. State Farm Mut. Auto. Ins. Co., supra , citing Second Medical v. Auto One Ins., 20 Misc 3d 291, 294-295 (Civil Ct., Kings Co. 2008). In addition, the billing manager personally packaged, sealed, applied postage to and mailed the bills. As such, plaintiff has made a prima facie showing of entitlement.

Defendant contends that plaintiff failed to submit several bills within the statutorily required period of 45 days as prescribed by 11 NYCRR 65-1.1. Pursuant to Insurance Law § 5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. All automobile insurance policies issued or renewed after April 5, 2002 are required to include a revised Mandatory Personal Injury Protection Endorsement ("Endorsement") which provides that claims for medical treatment must be submitted within 45 days after services are rendered. 11 NYCRR 65-1.1(b); 65-2.4(c); Rockman v. Clarendon Nat. Ins. Co., 21 Misc 3d 1118(A), 873 NYS2d 237 (Civ. Ct., Richmond Co. 2008) citing Mtr. of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C. v. Chubb Indemnity Ins. Co., 19 Misc 3d 129(A), 859 NYS2d 902 (App. Term, 2d Dept. 2008). Where one proof of claim is submitted for several medical treatments, the 45 day period commences the day after the first treatment is rendered. SZ Medical P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52, 55 (App. Term., 2nd & 11th Jud. Dists. 2006), citing Informal Opinion, New York State Insurance Department, June 30, 2003.

Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered, an insurer is precluded from asserting the defense of a provider's untimely submission of claim if it does not issue a timely denial of claim. Rockman v. Clarendon Nat. Ins. Co., supra , citing Mid Atlantic Medical P.C. v. Travelers Indemnity Co., 12 Misc 3d 147(A), 824 NYS2d 769 (App. Term, 1st Dept. 2006). Pursuant to both the Insurance

Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. Presbyterian Hosp. v. Md. Cas. Co., 90 NY2d 274, 278 (1997), citing Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]).

Here, plaintiff submitted claims on May 17, 2007 for services provided on March 9, 12, 16, 20 and 28, 2007, which is more than 45 days after each service was provided. Furthermore, since defendant timely denied these claims on May 30, 2007, within 30 days of their receipt, defendant is entitled to assert its defense that claims were untimely submitted.

As to plaintiff's contention that the denial based upon the IME cut-off was somehow unfair or defective since defendant assignee never notified plaintiff about the IME cut-off based on lack of medical necessity, an analysis of precedent on what if any notification requirements attach to pre claim IMEs is in order. This issue was recently addressed by this court in Prime Psychological Services, P.C. v. Nationwide Property and Cas. Ins., 2009 NY Slip Op. 29100, 2009 NY Misc. LEXIS 444 (Civil Ct., Richmond Co. 2009) wherein the court found that the notice requirements for verification requests, as contained in 11 NYCRR ยงยง65 -3.5 and 3.6, do not apply to ...

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