Tyorkin v Garrison Prop. & Cas. Ins. Co. (2016 NY Slip Op 50846(U))

010395/15

Plaintiff is represented by the Law Offices of Emilia Rutigliano, by Rachel Berzin, Esq., 1733 Sheepshead Bay Road, Suite 11, Brooklyn NY 11235; Defendant is represented by Bruno, Gerbino & Soriano LLP, by Catarina Oliveira, Esq., 445 Broad Hollow Road, Suite 220, Melville NY 11474.

Plaintiff’s motion and Defendant’s cross-motion for summary judgment pursuant to CPLR 3212 came before the Court on March 23, 2016. In addition to the oral arguments of counsel, the Court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Title/Number

Plaintiff’s Notice of Motion for Summary Judgment dated May 5, 2015; Affidavit of Maxim Tyorkin, M.D., sworn to on May 7, 2015; and Exhibits 1-4 1

Defendant’s Notice of Cross-Motion for Summary Judgment dated August 26, 2015; Attorney Affirmation of Dianne Galluzzo, Esq., affirmed on August 26, 2015; Affidavit of Zach Trahan, sworn to on August 12, 2015; Affidavit of Tammie Ulmer, sworn to on August 14, 2015; Affidavit of Raina Lira, sworn to on August 13, 2015; Affidavit of Lashelda Moreno, sworn to on August 24, 2015; Affirmation of Michael Baskies, M.D., affirmed on August 18, 2015; and Exhibits A-F 2

Plaintiff’s Attorney Affirmation in Opposition of Ilona Finkelshteyn, Esq., affirmed on February 8, 2016; Affidavit of Maxim Tyorkin, M.D., sworn to on February 2, 2016 (Exhibit 1 is the foregoing affidavit) 3

In an action by a provider to recover first-party no-fault benefits, Defendant moves for summary judgment based upon a negative peer review of the services rendered, or, alternatively, that Plaintiff purportedly billed above New Jersey Fee Schedule and thus is not eligible for reimbursement.

Plaintiff argues that affidavits proffered by Defendant are conclusory and fail to establish that the Denial of Claim forms were properly mailed and that Defendant’s IME report is not in admissible form.

In an apparent case of first impression, the issue before the Court is whether an insurer, when receiving a bill from a medical provider, who rendered services in New Jersey and is making a claim for New York no-fault benefits, is required to issue a Denial of Claim form, specifically, the New York State NF-10.

The no-fault regulations require an insurer to either pay or deny a claim for no-fault benefits within 30 days from the date of receipt of the claim (Insurance Law§ 5106(a); 11 NYCRR 65-3.8 (a)). An insurer who fails to timely deny the claim is generally precluded from interposing a defense to that claim. Hosp. for Jt. Disease v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318, 879 N.E.2d 1291, 849 N.Y.S.2d 473 (2007); Nyack Hosp. v Metropolitan Property & Cas. Ins. Co., 16 AD3d 564, 791 N.Y.S.2d 658 (2d Dept. 2005). A review of Insurance Regulation 68 indicates that there are specific requirements for the issuance of a denial of claim form. See 11 NYCRR 65-3.8. For instance, in denying a claim, a form created by the Insurance Department, known as the NF-10, must be used. See id. In other instances, specific language is required to be inserted in the issuances of NF-10’s. See id.

11 NYCRR 65-3.8(c)(1) advises as follows:

(1) If the insurer denies a claim in whole or in part involving elements of basic economic loss or extended economic loss, the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate, and shall furnish, if requested by the applicant, one copy of all prescribed claim forms submitted by or on behalf of the applicant thereto. However, where a denial involves a portion of a health provider’s bill, the insurer may make such a denial on a form or letter approved by the department which is issued in duplicate. No form or letter shall be approved unless it contains substantially the same information as the prescribed form which is relevant to the claim denied.

In the case at bar, Defendant’s affiant, Raina Lira, a Claims Adjuster employed by Defendant, avers that Defendant, through its vendor, Auto Injury Solutions (AIS), mailed the [*2]Explanation of Reimbursement Form (EOR) to the medical provider. There is no indication that a NF-10 form was issued in this matter although Ms. Lira avers that in applicable instances, the Denial of Claim Form (NF-10) is sent. Further, there is no indication that the EOR form, which was the only document issued in response to Plaintiff’s claim, is a form or letter approved by the Department as so allowed by 11 NYCRR 65-3.8(c)(1). Thus, notwithstanding both parties’ arguments with regards to the substantive merits of the peer review defense, the Court finds that such defense is precluded by Defendant’s failure to issue a NF-10 Denial of Claim form.

Alternatively, Defendant contends that upon a proffer of a review of the bill by its Certified Coder, Lashelda Moreno, and the same indicates that Plaintiff billed above the New Jersey Fee Schedule, summary judgment must be granted in its favor.

The Fourth Amendment to Regulation 68 states that a fee schedule defense is no longer precluded by the 30 day rule in actions for services rendered after April 1, 2013.

11 NYCRR 65-3.8(g) advises the following:

Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106 (a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances:

(i) when the claimed medical services were not provided to an injured party; or

(ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.

(g)(2) This subdivision shall apply to medical services rendered on or after April 1, 2013.

This Court, as well as at least two Courts in the First Department, agree on the interpretation of the statute to be there is no preclusion of the fee schedule defense. See Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 (App. Term 2015); see also East Coast Acupuncture, P.C. v Hereford Ins. Co., 26 N.Y.S.3d 684, 685 (Civ. Ct. Kings Cty 2016); Saddle Brook Surgicenter, LLC v All State Ins. Co., 48 Misc 3d 336, 345-346 (Civ. Ct. Bronx Cty 2015).

In Surgicare Surgical Assoc v National Interstate Ins Co, the Appellate Term affirmed the Civil Court’s holding that “where a reimbursable health care service is performed outside the State of New York in a jurisdiction that has enacted a medical fee schedule prescribing the permissible charge for the service rendered, an insurer may properly rely on such fee schedule to establish the “prevailing fee” within the meaning of 11 NYCRR 68.6, and demonstrate compliance therewith by payment in accordance with that fee schedule.” Surgicare Surgical Assoc. v National Interstate Ins. Co, supra. Thus, the Appellate Term found that Plaintiff was only entitled to reimbursement for the permissible rate authorized in New Jersey for the services rendered by Plaintiff as set forth in New Jersey’s no-fault statute and applicable fee schedule.

Likewise, in this instance, the Court finds that Defendant’s fee schedule defense is neither precluded by timeliness or its failure to issue a Denial of Claim form as the language of the statute strictly mandates that “no payment shall be due .under any circumstances” for medical service fees that exceed the fee schedule charges. 11 NYCRR 65-3.8(g). In other words, [*3]Plaintiff would only be entitled to the payment of the subject bill at the rates permissible and authorized in the state of New Jersey. The Court is unpersuaded by Defendant’s argument that payment for Plaintiff’s bill is outright prohibited simply because the billed amount is higher than permissible. The regulation only reduces payment to the amount authorized by the applicable fee schedule.

With regard to the amount ultimately due to Plaintiff, Defendant proffers an explanation by Lashelda Moreno, a Certified Professional Coder employed by AIS on Defendant’s behalf. Upon review of the same, the Court finds that Ms. Moreno did not explain the exact amounts allowable in a coherent manner. In one portion of Ms. Moreno’s analysis, she lists the following with no further details:

According to the New Jersey Physicians’ Fee Schedule Exhibit 1:

Physician Fee North:

CPT 29877: $3,398.38

CPT 29875: $2,712.06 x 50% for MPR = $1356.03

CPT 29877: $3,398.38 x 20% for Assistant Surgeon = $679.68 (reimbursed BA)

CPT 29875: $2,712.06 x 20% for Assistant Surgeon = $542.41 (reimbursed BA)

In Ms. Moreno’s affidavit, upon which she concludes that the proper amount of the bill would be $5,976.50, rather than the billed amount of $10,144.88, there is no further explanation as to what the sum comprises of. While the Court may consider an attorney affirmation in the explanation of fee schedule provisions and the Court may take judicial notice of the fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 18 [App. Div. 2d Dep’t 2009]), the attorney affirmation of Dianne Galluzzo neither explains Ms. Moreno’s analysis or explains allowable reductions. The Court cannot presume to be knowledgeable of fee schedule reductions that, on its face, cannot be specifically adduced, and will not make any findings of fact as to such reductions. As such, a triable issue of fact remains as to its fee schedule defense. Further, the Court notes that while Ms. Moreno’s analysis sufficiently raises a triable issue, her analysis alone is inarticulate and insufficient to be the basis of summary judgment.

The Court finds that Plaintiff met its prima facie burden in establishing the timely mailing of the bills at issue through the affidavit of Maxim Tyorkin, M.D., the annexed bill and the annexed USPS mail extract pertaining to the bill at issue. See Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 (2015).

Based on the foregoing, Plaintiff’s motion for summary judgment is granted to the extent that it established its prima facie case for purposes of trial. Defendant’s cross-motion is granted to the extent that it established its prima facie case for purposes of trial. The sole issue for trial is Defendant’s fee schedule defense for which Defendant bears the burden of establishing.

This constitutes the Decision and Order of the Court.

Dated: May 20, 2016
__________________________________
Richard J. Montelione, A.J.S.C.