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Frequently Asked Questions About No-Fault Collections Matters

On this page, I have provided answers to some of the most common questions I receive from medical providers about no-fault collections matters in New York. After reading, please reach out to The Law Office of Jeena R. Belil, PC, in Riverhead, Hauppauge or White Plains, for answers to any additional questions you may have.

I received a letter from the insurance company demanding I testify under oath at an examination. What now?

After you submit a bill, your patient’s no-fault insurance company may be entitled to examine you under oath. Called “Examination Under Oath” or EUO, this process involves intensive questioning regarding your billing and treatment provided to your patient.

Insurance companies undertake exhaustive investigations when faced with the prospect of having to pay significant sums of money, particularly under the no-fault portion of your patient’s insurance policy. This includes an EUO. The legal justification for an EUO can be found in the language of most insurance policies. Any failure to comply with an EUO demand is considered a material breach of contract and almost always leads to a claim denial. Since you, as the provider, have taken an assignment of benefits in order to bill the insurance company for your treatment, you have taken all of the patient’s rights and obligations under the policy, including the obligation to appear at an Examination Under Oath.

Case law has provided some guidelines on what to do when you receive a demand for an examination under oath. The first thing you should do is contact your New York no-fault lawyer so that he or she can review the demand letter. The No-Fault Regulation mandates that specific language must be contained within the letter and if it is not there, the demand is invalid. Your lawyer will be able to determine whether the demand is in compliance with the New York no-fault regulation.

If you are unable to attend the examination on the date the insurer has scheduled, let your lawyer know so that they can contact the carrier and reschedule at a time and place that are reasonable for you.

The letter will most likely demand that you produce records prior to the EUO. Current court decisions have stated that you do not have to provide these records. However, it is a good idea to review your patient file and provide a complete copy to your lawyer to review as well. Your lawyer should contact you to discuss your concerns and what to expect at an examination under oath.

It is important to have your lawyer attend the examination under oath with you. Although they cannot object to you answering a question, they are there to listen to the questions being asked and to clarify them. Sometimes the questions are vague or not asked in a way for you to answer meaningfully. My job is to make sure you understand what is being asked of you.

Make sure you keep a record of your mileage to and from the place of the EUO and of your lost business for the date/s you are testifying. You are entitled to receive reasonable reimbursement for your time spent as long as you have the proper documentation to supply to the insurance company.

Can I accompany my patients to their scheduled no-fault insurance medical examination?

Absolutely! If you have the opportunity to accompany your patient to their no-fault Insurance Medical Examination (IME), you should do so. You will get to observe firsthand how the insurance doctors, chiropractors, acupuncturists, conduct their so-called examinations. While it is not recommended you speak to the doctor/medical provider directly, you are encouraged to take copious notes of the waiting area, the documents your patient is asked to fill out and your observations of the actual examination (including how long the exam took, whether the examiner had someone in the room with them, whether they used any instruments on your patient to record range of motion measurements, your own observation of how your patient got on and off the exam table, etc.)

Your contemporaneous notes should be kept in your patient’s file and documented on your letterhead. In the event you have to arbitrate or litigate no-fault denials based on an IME cutoff, you can provide your notes/report to your no-fault collections lawyer so that they can add it to their conciliation/arbitration exchange on your behalf.

I am a massage therapist and I’m receiving denials based upon ground rule #6 of the New York States Workers’ Compensation Fee Schedule. Can I arbitrate these no-fault denials?

These denials are based upon the insurance carrier’s interpretation of Workers’ Compensation Fee Schedule Ground Rule #6 and concurrent care. Denials are typically worded as follows:

“Massage therapy is within scope of provider concurrently treating patient. Per NYS fee schedule introduction ground rule 6, when more than one provider is treating patient at the same time for the same condition payment is due the provider with the most relevant specialty, not both. Patient concurrently treating with [usually a chiropractic office]…”

You don’t have to give up and accept the insurance company’s denial on these claims. So, what can you do?

I have crafted three distinct arguments in order to challenge the above denial language at no-fault arbitration. While I don’t want to give away any legal strategies here, contact me for more detail. I can help you arbitrate these denials. And remember, you have six years from the date of the denial to file your claims. I encourage you to forward this information to any massage therapists, acupuncturists and chiropractors you know.

Do the workers’ compensation treatment guidelines apply to no-fault treatment?

Understanding that this is a major concern for health care providers who take no-fault insurance, I have read and re-read the Workers’ Compensation Ground Rules, which can apply to no-fault, to determine whether the WC Treatment Guidelines, which came out on December 1, 2010, are applicable to no-fault treatment. My position is that they do not. Here’s why:

The Workers’ Compensation Ground Rules discuss the application of the new guidelines in Paragraph 1A of Medicine, Physical Medicine and Chiropractic Sections. The exact language is set forth as follows:

“Treatment of work-related injuries should be in accordance with any applicable medical treatment guidelines adopted by the Chair of the Workers’ Compensation Board.”

Do you see what I see? The use of the phrase “work-related injuries.” The guidelines are only for work-related injuries. No-fault treatment is for car accident-related injuries. As such it should be argued that the ground rule, as well as the treatment guidelines, are not applicable to no-fault.

I see an opportunity to challenge any insurance carrier who attempts to apply the guidelines to your no-fault billing. It will ultimately be up to an arbitrator or judge to determine the issue, but in the past, I have had success in arguing that the language in the regulation and fee schedule should be strictly construed.

If you have received any correspondence from a no-fault insurance carrier requesting your compliance with the WC Treatment Guidelines, let me know. I’ll be happy to craft a letter for you explaining that they simply don’t apply to no-fault treatment.

Why is my no-fault arbitration scheduled to heard so far from my health care practice?

Here’s the hypothetical:
Provider is located in Suffolk County, Long Island and filed a claim with the American Arbitration Association to dispute an insurance carrier’s denial of the provider’s no-fault bill. The provider received notification that the arbitration was going to be held in Garden City. This provider asked me why the arbitration would be scheduled so far away from his office.

The answer is found in New York no-fault regulation 11 NYCRR 65-4, which provides the procedures for the arbitration of no-fault claims:

65-4.5(i) Time and place of arbitration. The arbitration hearing shall be held in the arbitrator’s office or any other appropriate place selected…and, to the extent practicable, within the general locale of the applicant’s residence, but in no event, more than 100 miles from such residence.

Do I have to respond to demands for verification requests that I have already answered?

If the insurance company keeps asking you for the exact same records and you can prove you already sent them, then you don’t have to keep providing the same records over and over again. If the insurance company refuses to pay or deny within 30 days, you can file for no-fault arbitration under the court decision, BROWNSVILLE ADVANCE MEDICAL, P.C., AS ASSIGNEE OF ALEJANDRO RAMOS, Plaintiff, v. COUNTRY-WIDE INSURANCE COMPANY, Defendant 2011 NY Slip Op 52255 – NY: Dist. Court, Nassau County, 1st Dist., 2011

**Note, you must be able to prove that you have previously sent the requested records in, such as a certificate of mailing, affidavit of mailing in the regular course of business or fax transmittal receipt.

Do you include the actual date of treatment when you are counting 45 days?

New York’s General Construction Law is the authority on this question. GCL Article 2, Section 20 provides:

“§ 20. Day, computation. A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made.”

So, the answer to the question is that you start counting the 45-day time frame the day AFTER the date of health care service.

How is interest compounded on a AAA file for a case where the carrier did not respond to the original mailing of the bill?

According to the New York State no-fault regulation, the interest is calculated at 2% simple interest per month. Interest starts to run starting the 30th day of the date they should have received the bill (figure 5 days after mailing, per New York’s General Construction Law).

Does a request for IME toll the insurance carrier’s 30-day time frame to pay or deny my bill?

The answer is yes and no, or, it depends (isn’t that just like a lawyer to answer that way!) What does it depend upon? Two things: The timing of the eligible injured person’s notice of claim and the timing of the demand for the IME.

The analysis is found in the well-known and often cited, Stephen Fogel Psychological PC a/a/o Choy v. Progressive Insurance Co.,7 Misc.3d 18, 793 N.Y.S.2d 661 (2004):

The insurer has the right to conduct an independent medical examination (IME) prior to its receipt of the eligible injured person’s statutory claim form (commonly referred to as a pre-claim IME) OR after its receipt of the claim.

If the IME is scheduled PRIOR to the notice of claim, which is not very common, but may occur when the insurer finds out about the accident by other means e.g. another passenger in vehicle, then the carrier does not have to comply with verification time frames mandated by the New York no-fault regulation. In other words, all rules are thrown out the window.

However, if the IME is scheduled AFTER the notice of claim is received, then all of the verification requirements are triggered under the Regulation and the 30 day window for the carrier to pay or deny the claim may be tolled (that is, if the carrier does everything right).

This analysis also applies to demands for No Fault Examinations Under Oath. In the event, the New York no-fault regulation is amended by the insurance department, this post may be rendered moot.

What is the statute of limitations for filing a New York no-fault arbitration? Is it the same for lawsuits?

As with all New York breach of contract actions, the statute of limitations is six years from when the claim accrues. A claim accrues under New York no-fault upon:

  • The date of each of the carrier’s denial of benefits (NF-10) or
  • If no denial has been issued, thirty days after the claim has been submitted to the carrier provided that no verification of the claim has been requested.

There is, of course, an exception to the six-year statute of limitations. No-fault claims against the Motor Vehicle Accident Indemnification Corporation (commonly referred to as MVAIC) have to be commenced within three years of accrual.

If the insurance carrier pays a portion of a lawsuit, must they still pay attorney fees?

Yes. The insurance carrier is obligated to pay statutory attorney fees to the lawyer who filed the no-fault lawsuit, but only on that portion (plus interest, if any) which was paid to the insured or no-fault health care provider.

Why am I not allowed to arbitrate denials relating to a patient under the age of 18?

While some arbitrators will hear matters involving an infant patient, some New York no-fault arbitrators will dismiss your arbitration claim without prejudice to bring a lawsuit based upon a section in the New York CPLR which states that cases on behalf of infants cannot be arbitrated unless permission from a court is obtained. This is one of these hotly debated issues among the arbitrators. So, if some of the arbitrators dismiss and some don’t, why take the chance risking your filing fee when we may end up having to go to court anyway?

Discuss Your Questions Directly With A Skilled Attorney

The Law Office of Jeena R. Belil, PC serves clients throughout Long Island as well as Nassau and Suffolk counties. I am pleased to offer free initial consultations to all prospective clients. To schedule yours, call me at 631-990-3235 or fill out my online contact form.