Opinion
No. 010715–10.
2010-11-17
MOUNT SINAI HOSPITAL, a/a/o Alison Cassani, Plaintiff, v. DUST TRANSIT INC., Defendant.
Joseph Henig, P.C., Bellmore, Attorney for Plaintiff. Gerber & Gerber, David Weintraub, Esq., Brooklyn, Attorney for Defendant.
Joseph Henig, P.C., Bellmore, Attorney for Plaintiff. Gerber & Gerber, David Weintraub, Esq., Brooklyn, Attorney for Defendant.
VITO M. DeSTEFANO, J.
On January 27, 2010, pedestrian Alison Cassani was involved in an accident with a vehicle that was insured through Dust Transit Inc. (“Dust”), a no-fault self-insurer (Complaint at ¶ 2). Dust was self-insured under an automobile liability policy which contained a New York State no-fault endorsement (Complaint at ¶ 3). Cassani was treated for injuries she sustained as a result of the accident at Mount Sinai Hospital (the “Hospital”) (Complaint at ¶ 4). Cassani continued to receive treatment and health benefits at the Hospital from January 27, 2010 through March 12, 2010 (Complaint at ¶ 4). On March 12, 2010, the date in which Cassani was discharged, Cassani assigned her rights to no-fault benefits to the Hospital (Ex. “1” to Plaintiffs' Motion).
In the New York Motor Vehicle No–Fault Insurance Law Assignment of Benefits Form, the injured pedestrian, Alison Cassani, assigned to the Mount Sinai Medical Center all “rights privileges and remedies to payment for health care services provided by assignee to which I am entitled under Article 51 (the No-fault statute) of the Insurance Law.” (Ex. “1” to Plaintiffs' Motion).
On March 15, 2010, Dust received a bill from the Hospital (Ex. “B” to Opposition; Ex. “C” to Opposition at ¶ 7). The bill, a New York Motor Vehicle No–Fault Insurance Law Hospital Facility Form, otherwise known as NYS Form NF–5 (“Form 5”) had a DRG Code rate of $162,726 but did not have a discharge date for the patient Cassani. On that same day, Dust sent a letter to the Hospital acknowledging receipt of the bill but delaying payment pending receipt of the following items:
* An Itemized Bill tabulated per the New York Workers' Compensation Medical Fee Schedule with CPT codes
* DRG Codes
* Medical Records with original doctor's signature, verifying causal relationship to the Motor Vehicle Accident
* Hospital Records with original doctor's signature
(Ex. “D” to Defendant's Opposition). The Hospital's bill sent on March 15, 2010 was an “interim bill” to “alert the insurer of the no-fault claim and that a final bill would follow” (Affidavit in Support of Plaintiffs' Reply).
On April 7, 2010 another Form 5 bill was sent to Dust, this one delineating a discharge date of 3/12/2010 and a DRG rate of $59,609.44 (Ex. “1” to Plaintiffs' Motion). The bill was sent certified mail/return receipt requested and delivered and accepted on April 9, 2010 by someone at the Dust's place of business (Ex. “2” to Plaintiffs' Motion; Ex. “3” to Plaintiffs' Motion). Included with this Form 5 bill were a Form UB04, DRG Master Output Report, and a New York Motor Vehicle No–Fault Insurance Law Assignment of Benefits Form (Ex. “1” to Plaintiffs' Motion; Ex. “3” to Plaintiffs' Motion). The medical records were included with the Form 5 hospital bill sent to Dust on April 7, 2010 (Affidavit in Support of Plaintiffs' Reply). Dust does not assert that it never received Plaintiffs' Form 5 bill of April 7, 2010.
On April 15, 2010, Dust thereafter sent a second “delay letter” because “no response was received within 30 days” from the first “delay letter.” (Affidavit in Opposition at ¶ 9). In this second letter, Dust again acknowledged receipt of the bill but a delay in payment pending receipt of the following:
* An Itemized Bill tabulated over the New York Workers' Compensation Medical Fee Schedule with CPT codes.
* Calculation of No–Fault Regular APR–DRG Rate
* Completed Hospital Facility Form (NF5–form) with original signature
* Medical Records with original doctor's signature
* Hospital Records with original doctor's signature
(Ex. “E” to Defendant's Opposition). To date, Dust has not paid the no fault benefits to the Hospital.
Plaintiff's Motion for Summary Judgment
The Hospital thereafter moved for summary judgment based upon Dust's failure to either pay Hospital's no-fault benefits or deny its claim within 30 days as required by Insurance Law § 5106(a).
In opposition to the motion, Dust argued that because it has “never received the requested verification after timely delaying the bills, [it] was and continues to be under no obligation to pay no-fault benefits to the Plaintiff and therefore cannot be responsible for the non-payment of the subject bills” (Defendant's Opposition at ¶ 7). In support thereof, Dust submitted, inter alia, the affidavit of Farida Shabat, a no-fault claims manager for Dust, as well as the two letters sent to the Hospital explaining Dust's delay in paying the bill (Exs. “C”, “D” and “E”).
In Reply, the Hospital claimed that its second Form 5 bill contained the mandated DRG rate and that the medical records were included with the hospital bill which was undisputably received by Dust on April 9, 2010. Given that the Hospital submitted the Form 5 bill, an affidavit from the Hospital's biller, and proof that Dust received the bill, the Hospital argued that “[t]here is no outstanding verification” (Plaintiffs' Reply).
For the reasons that follow, the Hospital's motion is denied.
Analysis
Pursuant to Insurance Law § 5106(a):
Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied.
However, this 30–day period in which to deny or pay a claim may be extended where the insurer makes a request for additional information and, in doing so, the insurer is not obligated to pay or deny the claim until all the demanded verification is provided (Hospital for Joint Diseases v. New York Central Mutual Fire Insurance Co, 44 AD3d 903 [2d Dept 2007] ).
Here, the Hospital established its prima facie entitlement to judgment as matter of law by demonstrating that the necessary billing forms were mailed to and received by Dust and that payment of the no fault benefits was overdue (New York & Presbyterian Hosp. v. American Transit Insurance Co., 45 AD3d 822 [2d Dept 2007]; New York and Presbyterian Hosp v. Countrywide Insurance Co, 44 AD729 [2d Dept 2007] ). Specifically, the Hospital submitted, in support of its motion, the requisite no fault billing forms, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of a Biller/Account Representative indicating that Dust failed to either pay the bill or issue a timely denial of claim form (Westchester Medical Ctr v. Progressive Casualty Insurance Co., 51 AD3d 1014, 1017 [2d Dept 2008]; Hospital for Joint Diseases v. New York Central Mutual Fire Insurance Co, 44 AD3d 903 [2d Dept 2007] ).
The burden then shifted to Dust to establish whether an issue of fact exists as to whether the verification requests sent by Dust would serve to extend it's time to pay or deny the claim ( New York and Presbyterian Hosp v. Countrywide Insurance Co, 44 AD729 [2d Dept 2007] ). Here, in opposition to the motion, Dust submitted evidentiary proof that it timely requested additional information from the Hospital to verify its claim. The first request for additional information was sent on March 15, 2010, after the “interim bill” was sent to Dust. Dust sent a second letter on April 15, 2010, again acknowledging receipt of the Hospital bill but delaying payment pending the receipt of, inter alia, the following items: an itemized bill tabulated with CPT codes; calculation of the no-fault DRG rate; NF5–form with original signature; and medical and hospital records with the original doctor's signature (Ex. “E” to Defendant's Opposition). Since all of the requested information was not provided, the 30–day period in which Dust was obligated to pay or deny the Hospital's claim did not begin to run (Hospital for Joint Diseases v. New York Central Mutual Fire Insurance Co, 44 AD3d 903 [2d Dept 2007] [insurer's proof that hospital did not respond to the additional verification requests tolled the 30–day period in which insurer had to pay or deny the claim]; New York & Presbyterian Hosp v. Countrywide Insurance Co, 44 AD3d 729 [2d Dept 2007] [insurer's request for additional information tolled insurer's time in which to deny or pay the hospital's claim]; Montefiore Medical Center v. Government Employees Insurance Co, 34 AD3d 771 [2d Dept 2006] [insurer's request for additional information did not have to be set forth in prescribed form and thus tolled the insurer's time within which to pay or deny the claim until insurer received all of the relevant information requested]; Hospital for Joint Diseases v. Elrac, 11 AD3d 432 [2d Dept 2004] [insurer's letter seeking additional verification from hospital relieved the insurer from the obligation to pay or deny the claim within 30 days]; Nyack Hospital v. Progressive Casualty Insurance Co, 296 A.D.2d 482 [2d Dept 2002] [30–day period in which insurer had to ether pay or deny the claim did not begin to run as hospital did not supply the additional verification of the claim]; New York & Presbyterian Hosp. v. American Transit Insurance Co., 287 A.D.2d 699 [2d Dept 2001] [additional verification sought by insurer's request for complete medical records and written reports was not supplied; thus, 30–day period in which insurer had to deny or pay the claim did not begin to run]; Westchester County Medical Ctr v. New York Central Mutual Fire Insurance Co, 262 A.D.2d 553 [2d Dept 1999] [hospital did not supply the requested information sought in the insurer's demand for verification letter] ).
Based on the foregoing, it is hereby ordered that the Hospital's motion for summary judgment is denied.
This constitutes the decision and order of the court.