Arthur Ave. Med. Servs., PC v GEICO Ins. Co. (2021 NY Slip Op 21108)

[*1]

Civil Court of the City of New York, Kings County, April 20, 2021

APPEARANCES OF COUNSEL

Rivkin Radler, LLP, Uniondale (Donald Kernisant Jr. of counsel), for defendant.

Law Office of Melissa Betancourt, P.C., Brooklyn (Jaime Koo of counsel), for plaintiff.

In this first-party no-fault action, defendant moves pursuant to CPLR 2221 to reargue that portion of this court’s February 28, 2019 decision which reserved the reasonableness of the content of defendant’s request for post-examination under oath (EUO) additional verification as an issue of fact for trial. Defendant contends its request is not subject to judicial review and is valid under the no-fault rules as a matter of law. Defendant claims the court misapprehended the law when it reserved for trial the question of the reasonableness of these additional verification requests. Plaintiff claims defendant failed to establish its outstanding verification defense and that, under the circumstances of this case, the substance of the additional requests was improper and an abuse of the verification process. Plaintiff maintains that defendant’s demand for this type of additional verification placed an improper onus on the provider to supply documents outside the scope of the claim verification process. They claim that defendant’s denial was improper as it was based on a claimed failure to provide some or all of these impermissible requests. Plaintiff further argued that defendant had acquired sufficient information to determine whether to verify or [*2]deny the claim from the provider’s EUO and defendant’s own related investigation. The court notes that defendant interposed a Mallela defense in its answer and that similar demands were made in combined demands served upon plaintiff.

The decision of whether to grant reargument is within the sound discretion of the motion court (see Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 178 AD3d 772, 773 [2d Dept 2019]; Barnett v Smith, 64 AD3d 669 [2d Dept 2009]). A motion for reargument “ ’is not designed to provide an unsuccessful party with successive opportunities to{**72 Misc 3d at 344} reargue issues previously decided, or to present arguments different from those originally presented’ ” (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820, quoting McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]; Jaspar Holdings, LLC v Gotham Trading Partners #1, LLC, 186 AD3d 582 [2d Dept 2020]). The movant must make an effort to demonstrate in what manner the court, in rendering the original determination, overlooked or misapprehended the relevant facts or law (see Nicolia v Nicolia, 84 AD3d 1327 [2d Dept 2011]; Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820).

“Once the court reviews the merits of the movant’s arguments, the court, by doing so, has granted reargument, and must determine whether to adhere to the original determination, or alter the original determination. If the movant has alleged that the original determination overlooked or misapprehended the relevant facts or law, and the court disagrees, it will adhere to the original determination” (Ahmed v Pannone, 116 AD3d 802, 810-811 [2d Dept 2014, Hinds-Radix, J., dissenting] [citation omitted]).

Upon review of the parties’ submissions, defendant’s motion for leave to reargue is granted, and upon reargument, defendant’s motion is denied. Defendant failed to demonstrate that the court overlooked or misapprehended relevant facts or misapplied governing principles of law (see McGill v Goldman, 261 AD2d 593 [2d Dept 1999]). Accordingly, the court adheres to its original decision wherein it ruled that the reasonableness of defendant’s post-EUO request for additional verification remained an issue of fact for trial.

As an initial matter, this court notes that defendant’s post-EUO request for additional verification is the matter at issue herein. The court emphasizes this because in the instant motion, paragraph three of defendant’s affirmation and much of its supporting legal authority pertain to the issue of an EUO no-show, a matter that at no point was in dispute or an issue in the underlying motion. Conversely, at the outset of defendant’s affirmation in support of the underlying summary judgment motion, defendant argued for dismissal of the complaint “because Plaintiff failed to provide GEICO with post examination under oath (‘EUO’) verification that was timely requested pursuant to 11 NYCRR 65-3.5″ (emphasis added). Further, the affidavits in support of defendant’s underlying motion also relate to the issue of outstanding additional verification.{**72 Misc 3d at 345} Likewise, the arguments in plaintiff’s opposition to both the underlying and instant motions apply to outstanding additional verification requests. No other issue is properly before the court for reargument. It is also noted that reargument is not sought as to that portion of the decision wherein the court granted each party summary judgment to the extent that they established their prima facie case. Therefore, the court’s ensuing decision and analysis will discuss the issue of the outstanding post-EUO verification request only.

Defendant commenced an investigation into Arthur Avenue Medical Services because it claimed that it identified several facts and circumstances that called into question the provider’s eligibility to collect no-fault benefits. Defendant specifically investigated whether Arthur Avenue was truly owned and controlled by Jaime G. Gutierrez, M.D., or was actually owned and [*3]controlled by laypersons. The investigation included but was not limited to a review and analysis of claims files, public records, previous investigations into other entities that operate out of the same location, previous investigations into other entities where Dr. Gutierrez rendered services and billing submissions submitted to the carrier for reimbursement. Submitted with defendant’s original motion is the affidavit of Glenn Simmons, an investigator with GEICO’s Special Investigations Unit, which sets forth the extent of the investigation and conclusions arrived, namely that: patients treated at Arthur Avenue were referred to that provider by Dr. Gutierrez (who operates at the same location); Dr. Gutierrez provided services on behalf of Jaime G. Gutierrez, M.D., then referred the same patients to Arthur Avenue for additional medical treatment; various doctors performed services, yet the billing submissions name Dr. Gutierrez as the only service provider; improper performance of nerve testing including omissions of necessary steps in the administration of the tests; absence of variation in the pattern of treatment and use of predetermined treatment protocol, etc. Mr. Simmons states that the investigation uncovered indications that laypersons were improperly influencing the manner and method of treatment provided to claimants, that Arthur Avenue was rendering services pursuant to a predetermined treatment protocol designed to maximize profit and that Arthur Avenue’s charges may be the result of improper self-referrals.

In addition to the investigation, it is undisputed that on March 9, 2017, Jaime Gutierrez, M.D., appeared on behalf of{**72 Misc 3d at 346} Arthur Avenue in full compliance with defendant’s EUO request. The court’s review of the EUO transcript annexed to the underlying motion reveals that the EUO took place over the course of five hours with questioning involving medical treatment as well as the provider’s licensing and corporate structure. Dr. Gutierrez’s testimony lent further support to the concerns over fraud previously investigated by defendant, including whether Arthur Avenue was a party to unlawful financial relationships with unlicensed individuals and entities, whether laypersons were improperly influencing the manner and methods of treatment provided to GEICO’s insureds and whether Arthur Avenue is truly owned and controlled by Dr. Gutierrez or by laypersons all in contravention to New York law. Defendant claims that its request for additional verification was based on the information obtained during the EUO and that the EUO raised questions regarding improper corporate structure and fee sharing. Thus, by letter dated March 20, 2017, defendant requested that plaintiff provide the following additional verification:

“1. A complete copy of the lease agreements, if any, entered into by Arthur Medical, including any accompanying Schedules, Documents, Floor Plans or Riders, regarding the following premises:

“• 764 Elmont Road, Elmont

“• 293 East 53rd Street, Brooklyn

“• 2363 Ralph Avenue, Brooklyn

“• 9004 Merrick Boulevard, Jamaica

“• 2625 Atlantic Avenue, Brooklyn

“2. [*4]All article[s] of incorporation, including but not limited to any By-Laws for Arthur Medical;

“3. A complete copy of the billing agreement entered between Arthur Medical and Collection Services, Inc./Inna Lyubronestkaya;

“4. All invoices between Collection Services, Inc./Inna Lyubronestkaya and Arthur Medical;

“5. All W-2, 1099, and/or K-1 forms from Arthur Medical, including, but not limited to, any documentation regarding the employee status or relationship between Arthur Medical and any person rendering services on behalf of Arthur Medical;

“6. All quarterly payroll and tax returns (IRS Form 941 and NYS Form 45-MN) filed from 2016 to present by or on behalf of Arthur Medical;{**72 Misc 3d at 347}

“7. Opening/signatory authorization documents for the Arthur Medical Chase bank account;

“8. Copies of all bank statements and cancelled checks for Arthur Medical from 2016 to present;

“• These include, but is not to be limited to, all checks made to: (i) Collection Services, In[c]./Inna; (ii) Osvaldo; (iii) the physician assistant; and (iv) all rent payments.

“9. All documents relating to Arthur Avenue’s corporate card from 2016 to present;

“10. General ledgers for Arthur Medical from 2016 to present;

“11. Proof of payment of the P.O. Box utilized by Arthur Medical;

“12. All licenses to practice medicine in New York for Dr. Gutierrez as well as any certification to render EMG/NCV testing; and

“13. Proof of purchase of the medical equipment utilized by Arthur Medical, including but not limited to the EMG/NCV machine.”

Relevant to the matter herein, 11 NYCRR 65-3.5 (b) of the No-Fault Law provides, “Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.” This section authorizes an insurer, upon receiving the written proof of claim or written notice of its substantial equivalent, to request “any additional verification required . . . to establish proof of claim . . . within 15 business days of receipt of the prescribed verification forms” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]). Additionally, section 65-3.2 (c) dictates that insurance carriers “not demand verification of facts unless there are good reasons to do so. When verification of facts is necessary, it should be done as expeditiously as possible” (11 NYCRR 65-3.2 [c]). Indeed, underlying the enactment of the no-fault regulations is the principle of expediency in the processing of claims (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]). “No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285).{**72 Misc 3d at 348}

In the context of no-fault reimbursement, to be eligible for benefits, a medical services corporation must be owned by a physician who practices medicine through the corporation (Business Corporation Law § 1508) and may not bill for medical services provided by physicians not employed by the corporation, such as independent contractors (11 NYCRR 65-3.11 [a]). Further, the corporation may not share professional service fees with third parties, such as referral fees (8 NYCRR 29.1 [b] [4]). It is well established that New York law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; 11 NYCRR 65-3.16 [a]). As relevant herein, the underlying policy concern in the medical field is “that the so-called ‘corporate practice of medicine’ could create ethical conflicts and undermine the quality of care afforded to patients” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], quoting State Farm Mut. Auto. Ins. Co. v Mallela, 372 F3d 500, 503 [2d Cir 2004]).

In the seminal case, State Farm Mut. Auto. Ins. Co. v Mallela, the Court of Appeals held that medical providers that fail to meet the New York State licensing requirements are not eligible for no-fault reimbursement (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

“A successful Mallela defense permits an insurer to avoid paying an otherwise valid no-fault claims [sic] because the provider is not eligible to obtain payment of no-fault benefits because the entity providing the services is owned or significantly controlled by persons who are not licensed to practice the profession for which the professional business entity was formed” (Brownsville Advance Med., P.C. v Country-Wide Ins. Co., 33 Misc 3d 1236[A], 2011 NY Slip Op 52255[U], *3 [Nassau Dist Ct 2011] [citations omitted]).

An insurance carrier may, at any time, assert a non-precludable “Mallela defense” and deny payment based on the medical provider’s fraudulent incorporation (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). “Inasmuch as the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the{**72 Misc 3d at 349} claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A], 2012 NY Slip Op 51001[U], *2 [Suffolk Dist Ct 2012]).

With regards to Mallela related documents, the case law clearly lays out a “good cause” [*6]standard which a carrier must demonstrate in order to investigate licensing violations. In its Mallela decision, the Court of Appeals emphasized the Superintendent’s regulation permitting carriers to withhold reimbursement from fraudulently licensed medical corporations:

“on the strength of this regulation, carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law. Defendants argue that the carriers will turn this investigatory privilege into a vehicle for delay and recalcitrance.

“The regulatory scheme, however, does not permit abuse of the truth-seeking opportunity that 11 NYCRR 65-3.16 (a) (12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause (see 11 NYCRR 65-3.2 [c]). In the licensing context, carriers will be unable to show ‘good cause’ unless they can demonstrate behavior tantamount to fraud. Technical violations will not do. For example, a failure to hold an annual meeting, pay corporate filing fees or submit otherwise acceptable paperwork on time will not rise to the level of fraud. We expect, and the Legislature surely intended, vigorous enforcement action by the Superintendent against any carrier that uses the licensing-requirement regulation to withhold or obstruct reimbursements to nonfraudulent health care providers” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 321-322 [emphasis added]).

In the recently decided Andrew Carothers, M.D., P.C. v Progressive Ins. Co.,^[FN*] the Court of Appeals upheld its decision in Mallela and added that

“[a] corporate practice that shows ‘willful and material failure to abide by’ licensing and incorporation statutes (Mallela, 4 NY3d at 321) may support{**72 Misc 3d at 350} a finding that the provider is not an eligible recipient of reimbursement under 11 NYCRR 65-3.16 (a) (12) without meeting the traditional elements of common-law fraud” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 405 [2019]).

In cases involving Mallela-type concerns, courts of competent jurisdiction have reviewed the reasonableness of verification requests similar to those at issue. In Island Chiropractic Testing, P.C. v Nationwide Ins. Co., the court held that “verification requests, seeking inter alia, copies of ‘sale of shares or transfer of ownership (and) lease agreements’ are impermissible and improper requests, and cannot support the finding of a denial ‘toll’ which would permit an award of summary judgment to defendant” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A], 2012 NY Slip Op 51001[U], *2 [Suffolk Dist Ct 2012]). “Permitting an insurer to obtain written documents such as tax returns, incorporation agreements or leases regarding a potential fraudulent incorporation ‘[Mallela]’ defense as part of the verification process defeats the stated policy and purpose of the no-fault law and carries with it the potential for abuse” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 2012 NY Slip Op 51001[U], *2). In underlining that denying use of such requests does not prejudice the carrier, the court noted that as “the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 2012 NY Slip Op 51001[U], *2).

Similarly, the court in Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. ruled that “Mallela type material cannot be obtained as verification of the claim. Requesting an [sic] [*7]provider to produce voluminous corporate records in order to obtain payment of a no-fault claim is an abuse of the EUO and the entire verification process” (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 35 Misc 3d 1213[A], 2012 NY Slip Op 50676[U], *6 [Nassau Dist Ct 2012], mod 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). This court notes that on appeal, the Appellate Term dismissed the plaintiff’s case based on an EUO no-show and therefore did not rule on the issue of the verification request content and reasonableness (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2013 NY Slip Op 52225[U]).

By comparison, in the context of litigation wherein a carrier asserts a Mallela defense, courts have generally ruled on the{**72 Misc 3d at 351} propriety of pretrial discovery demands for corporate documents and information. The Appellate Term has consistently held that a plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (Marino v County of Nassau, 16 AD3d 628 [2d Dept 2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Clinton Place Med., P.C. v USAA Cas. Ins. Co., 56 Misc 3d 136[A], 2017 NY Slip Op 51012[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Charles Deng Acupuncture, P.C. v United Servs. Auto. Assn., 58 Misc 3d 135[A], 2017 NY Slip Op 51810[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Further, discovery demands concerning a Mallela defense are granted as long as there are sufficient allegations supporting such a defense (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; BS Kings County Med., P.C. v State Farm Mut. Auto Ins. Co., 68 Misc 3d 879 [Civ Ct, Bronx County 2020]). However, it is proper for a court to deny discovery demands seeking information that is “irrelevant, overly broad, or burdensome” (Pesce v Fernandez, 144 AD3d 653, 655 [2d Dept 2016]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [2008]).

Based on the foregoing, the court adheres to its decision on defendant’s summary judgment motion. To prevail on summary judgment, the moving party must provide sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant failed to establish its affirmative defense of outstanding verification in its underlying motion. The reasonableness of defendant’s post-EUO additional verification request remains an issue of fact for trial.

Defendant’s assertion that this court lacks the authority to preserve the reasonableness of additional verification requests for trial conflicts with prevailing no-fault regulations and case law. Both the Mallela and Carothers Courts stressed principles of expediency and good cause in investigations of fraudulent licensing and improper fee sharing and acknowledged that abuse of the verification process may exist. At no time did the{**72 Misc 3d at 352} Court of Appeals state that carriers have unfettered authority in the extent of these investigations. Although there is a lack of Appellate Term authority on this issue, courts of competent jurisdiction have reviewed the content of verification requests in cases similar to the instant matter and have ruled that comparable requests fall outside of the verification scheme. It is the court’s view that it has authority to review additional verification requests to ensure that parties comply with no-fault claim verification procedures. Thus, the question of whether the additional verification was reasonable and necessary for defendant to verify or to deny the claim, based on fraud, is within the court’s authority to determine.

In this matter, the provider fully complied with defendant’s EUO request. Defendant obtained substantial Mallela-type information relevant to its suspicion of fraud during the course of the five-hour EUO, that included a multitude of questions related to corporate structure. Defendant also conducted its own investigation into plaintiff’s billing and medical practices as laid out in the affidavit of its special unit investigator. This inquiry and investigation were well within the guidelines of the No-Fault Law and adhered to the “good cause” requirement as set forth by Mallela and Carothers. However, defendant’s subsequent request for additional information through use of the no-fault claim verification process may be unreasonable and constitute an investigation that goes beyond the purview of the no-fault reimbursement system. “New York’s no-fault automobile insurance system is designed to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562 [2008] [internal quotation marks omitted]). The court emphasizes the limited purpose of the no-fault system: “Verification is permitted to ‘verify the claim.‘ 11 NYCRR 65-3.5(c)” (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 50676[U], *4 [emphasis added]). A claim is either verified or it is not. Had defendant suspected fraud after the five-hour EUO, defendant may have denied the claim based on fraudulent incorporation at that point in time. Furthermore, in the context of verification of a claim, some of the requested information may be privileged or categorized as improper pre-litigation discovery. Thus, the propriety of the additional verification request upon which the defendant denied the claim remains an issue of fact for trial.{**72 Misc 3d at 353}

Notwithstanding the above, the court’s determination to adhere to its original decision is also based on defendant’s failure to provide the court with a complete record in support of its original request for summary judgment based on its outstanding verification defense. Defendant acknowledges in a footnote in its underlying motion that it received “some” of the requested documents from plaintiff. However, defendant does not identify what plaintiff provided and what remained outstanding from its comprehensive list of post-EUO verification requests, which includes documents subject to privilege and confidentiality rules. The court was unable to rule on the issue it preserved for trial in the absence of these relevant facts. Therefore, in accordance with the original decision, this defense remains an issue of fact for trial.

Finally, the court emphasizes that its decision should not be construed as a substantive ruling on the merit of defendant’s Mallela defense. Rather, the court’s decision is based on its adherence to claim verification procedures as laid out in the no-fault rules. The court is well versed in the public policy concerns underlying the no-fault regulations which govern medical provider licensing and prohibit fee sharing with nonmedical professionals. The prevalence of this fraud provides an insurance carrier with a choice of legal recourse including asserting a non-precludable Mallela defense or a defense related to licensing ineligibility within no-fault litigation, standing to bring a civil action against a medical provider based on fraud or filing a criminal complaint (see Travelers Indem. Co. v Parisien, 70 Misc 3d 1203[A], 2020 NY Slip Op 51561[U] [Sup Ct, Suffolk County 2020]; Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 50676[U]). However, in light of the aforementioned case law and principles, the court reaffirms that the propriety of the post-EUO request for additional verification is subject to the court’s review.

Based on the foregoing, defendant’s motion for leave to reargue is granted, and upon reargument, defendant’s motion is denied.

Footnotes

Footnote *:In Andrew Carothers, M.D., P.C. v Progressive Ins. Co., the Court of Appeals modified the definition of fraud previously laid out in Mallela.