Blackman v. Allstate Ins. Co., 26470/15, NYLJ 1202775250364
The Court ruled that when a provider bills a BR code, burden of proving the merits of the service pursuant to ground rule 10 to support the service only shifts to provider when a verification request is issued by the insurer. This diverges from the ruling in Ksenia Pavlova, D.O. v. Allstate Ins. Co. which said that such proof is part of Plaintiff’s prima facia case.
Upon review of the pertinent case law, the no-fault regulations, the Fee Schedule, the Ground Rules and the need for defendant to have relevant information to permit a sound evaluation, this court is constrained to find that such information should have been obtained through a verification request. Defendant reasons that it “did not request verification because the defendant had sufficient information to deny the claim. The fee schedule places an affirmative duty on a provider, who chooses to bill under a “by-report” code, to submit documentation substantiating their billing.” Aff. of July Burns, Exhibit A, ¶40. Defendant’s reasoning is unpersuasive in that defendant did not have sufficient information to deny the claim and in actuality, defendant relied upon the lack of information to deny the claim. While the court is cognizant of the importance of the submission of additional information for services billed pursuant to a “By-Report” code, the court views the requirement of such information to be a basis for denial only after verification requests are issued for such information and plaintiff refuses to provide the same or fails to provide adequate documentation.2 The motivation for the provider to immediately comply with the “By-Report” documentation request is to receive suchprompt payment in light of the public policy for such prompt payment (Aetna Health Plans v. Hanover Ins. Co., 27 N.Y.3d 577 [2016]). It seems unduly harsh for a provider to forfeit its fee without being given an opportunity of justifying it. As to defendant’s alternative defense of medical necessity, defendant annexes the affirmed negative peer review report of Stuart Stauber, M.D., to support its contention that the “additional needling” billed as CPT Code 20999 was not medically necessary. The Court finds that Dr. Stauber’s report sufficiently sets forth a medical rationale and factual basis that demonstrates a lack of medical necessity, so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.