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Courts and Arbitrators Enforcing Formal Prerequisites in Filing of No-Fault Claims
By: Brian C. McCarthy, Esq.

FOR THE DEFENSE


Courts and Arbitrators Enforcing Formal
Prerequisites in Filing of No-Fault Claims

By: Brian C. McCarthy, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


Insurance Regulation ' 11 NYCRR 65-3.8(a)(1) states that the thirty day period within which an insurer must either pay or deny a claim does not begin to run until proof of claim, Awhich shall include verification of all of the relevant information requested pursuant to section 65-3.5,@ has been properly furnished. Section 65-3.5, in turn, provides that the insurer is entitled to Aall items necessary to verify the claim@ and further, that an insurer may require the submission of Athe prescribed verification of treatment by attending physician or other provider of health service.@

Business Corporation Law ' 1504, regarding the rendering of professional service, expressly provides in subsection (c) that Aeach report ... made or issued by a corporation practicing medicine, dentistry, ... pharmacy, nursing, physiotherapy or chiropractic shall bear the signature of one or more physicians, [et cetera], who are in responsible charge of such report.@

In a recent arbitration decision, In the Matter of the Arbitration between Accessible and Advance Medical, P.C. a/a/o Julio Mejia-Tejada and Utica National Insurance Company, AAA Case No. 412003045934 (May 27, 2004), Arbitrator Nathan Ritzer relies on the above-cited statutory and regulatory law in finding that a No-Fault provider=s entire claim was invalid based on the provider=s failure to submit Aduly signed and verified NF-3 forms.@ The arbitrator noted in his decision that the applicant had set forth all evidence necessary to establish a prima facie case of medical necessity, but that the omission of the signed NF-3, a A>sine qua non= in the presentation of a No-Fault claim,@ was a fatal defect. Furthermore, the arbitrator ruled that such a defect could not be cured by the provider=s submission of narrative reports and other documents bearing the physician=s signature.


There are signs that courts are also beginning to demand that No-Fault providers comply with the laws and regulations pertinent to the filing of claims. The Civil Court of the City of New York, Queens County, recently denied a plaintiff health center=s motion for summary judgment on similar grounds. In Rockaway Boulevard Medical, P.C. a/a/o Orville Lawrence v. Progressive Insurance Co., 778 N.Y.S.2d 664 (Civil Ct. 2004), Judge Edgar Walker denied summary judgment to the plaintiff on the sole ground that plaintiff had submitted a form other than the prescribed form (NF-3) that did not contain Asubstantially the same information as the prescribed form.@ While acknowledging that a form other than the NF-3 may be used, the omission of a substantial piece of information called for on the NF-3 renders the proof of claim incomplete and prevents a plaintiff from establishing a prima facie case of entitlement to No-Fault benefits. In Rockaway, the information omitted pertained to the business relationship between the treating provider and the billing provider - highly significant information when the two are not one and the same. See also, St. Luke=s Roosevelt Hospital a/a/o Jeanine Borrero v. American Transit Insurance Company, 274 A.D.2d 511, 712 NYS2d 372 (2 Dept. 2000), in which the court held that A[a] complete proof of claim is a prerequisite to entitlement to no-fault benefits including statutory interest and an award of an attorney=s fee@ and that A[t]he plaintiff failed to submit a completed form to the defendant as required by 11 NYCRR 65.15 (d)(6).

Defense counsel is strongly advised to scrutinize the submissions of medical providers to ensure their compliance with the formal prerequisites of filing valid No-Fault claims. Considering the extraordinarily high volume of claims submitted by many providers, such defects as discussed herein are likely commonplace and may enable the defense bar to defeat improperly filed claims.


Editor’s Note: Brian C. McCarthy is a graduate of St. Johns University School of Law and an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York

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