Follow-Up Verification Request Sent on the 30th Day After the Original Request Held to be Timely

NO-FAULT – FOLLOW-UP VERIFICATION – PREMATURE CAUSE OF ACTION
Park Slope Med. & Surgical Supply, Inc. a/a/o Alicia Marsh v. Country-Wide Ins. Co.
(NYC Civil, Richmond Co., decided 5/27/2008)

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Recite the additional verification, follow-up verification formula with me:

(Prescribed verification forms receipt date) + (additional verification request within the next 15 business days per 65-3.5(b)) + (if no verification supplied within 30 calendar days) + (follow-up request within the next 10 calendar days per 65-3.6(b)) = timely additional/follow-up verification requests.

If an insurer does not wait the entire 30 days to see whether the requested verification arrives, but sends the follow-up request on, let's say, the 30th day instead of the 31st day, is the follow-up request timely? The court in this case said yes, such a follow-up request is timely.

In dismissing the DME provider's action as premature, Richmond County NYC Civil Court Judge Katherine A. Levine first noted that two, prior Civil Court decisions are diametrically opposed in their rulings:

> Psych. & Massage Therapy Assoc., PLLC v. Progressive Cas. Ins. Co., 5 Misc 3d 723 (Civ. Ct., Queens Co., 2004), in which the court found that the insurer's sending of its follow-up verification request 25 days after its initial request did not violate 11 NYCRR § 65-3.6(b), and that the 30-day time frame was a limit to the amount of
time an insurer may wait before sending a follow-up request.

> Seaside Medical P.C. v. State Farm Mutual, 12 Misc 3d 1127, 819 NYS2d 819(Civ. Ct., Richmond Co., 2006), in which the court held that toll "occasioned by defendant [insurer's] initial verification requests dissapated ab initio" by reason of it having sent out the follow-up verification request only 28 days after the initial
request.

Judge Levine then noted that the Second Department, Appellate Division, found in New York & Presbyterian Hosp. v. American Transit Ins. Co., 287 AD2d 699 (2nd Dept. 2001) that the 30-day period in which an insurer must pay or deny a claim is tolled where there was an outstanding follow up verification request that was sent before the 30-day waiting period expired. Specifically at issue in that case, however, was the form as opposed to the timeliness of the verification request letters. The Second Department commented that American Transit had timely requested additional verification of the claim when it sent a follow-up letter approximately 27 days after its initial first request.

Judge Levine does a nice review of both the regultory language and the interpretative case law before concluding:

It is imperative in ruling upon No Fault insurance matters not to lose sight of the fundamental goal of the regulatory scheme, which is "designed to promote prompt payment of legitimate claims." * * * Accordingly, a court must interpret and apply the No-Fault Regulations in a manner leading to the prompt payment of valid, documented claims. In light of the aforesaid principles of statutory construction and the purpose behind the No-Fault Regulations, this Court finds that defendant's sending the follow up verification request on the 30th day after the original request for verification was timely and in accordance with the regulations.

Complaint dismissed as premature. Score: 3-1 for insurers on issuing follow-up verification requests prior to the 31st day.