Prima Facie Proof Requirements for Entitlement to Payment of “No-Fault” Medical Expenses Clarified

In a full-fledged opinion by Justice Rivera, over the partial dissent by two justices, the Second Department resolved a conflict in its authority regarding what a medical provider must demonstrate to make out a prima facie case of entitlement to payment for medical treatment under the no-fault regime.  In Art of Healing Medicine PC v Travelers Home & Mar Ins Co (55 AD3d at 64), the Second Department wrote that “[t]he plaintiffs [ ] medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule”… . Based upon that language in “Art of Healing…,” several Appellate Term decisions “found that the plaintiff failed to establish its prima facie burden where it relied upon the affidavit of a biller who did not possess personal knowledge of the plaintiff’s business practices and procedures so as to establish that the claim forms annexed to the plaintiff’s moving papers were admissible under the business records exception to the hearsay rule…”.  In the instant case, the Second Department rejected that interpretation and reiterated that all a medical provider must demonstrate to make out a prima facie case is the submission of the proper billing forms and the failure to deny or pay the claim within the statutory period:

The requirement in Insurance Law § 5106(a) that a claimant must submit “proof of the fact and amount of the loss sustained” in order to trigger the 30-day period in which to pay or deny a claim refers to the contents of the billing forms, not the merits of the claim. * * *

The “how” evidentiary component of the plaintiff’s proof is met by, inter alia, the affidavit of a billing agent or an employee of the medical provider; that is, someone with personal knowledge of the plaintiff’s billing methods … . The billing agent will (1) attest that he/she personally sent the billing forms to the insurer, that the insurer received the same, and that the insurer failed to pay or deny the claim within the requisite 30-day period, or (2) set forth the procedures customarily utilized in the ordinary course of its business regarding the mailing/receipt of such forms and that the insurer failed to pay or deny the claim within the requisite 30-day period. As part of its prima facie showing, the plaintiff is not required to show that the contents of the statutory no-fault forms themselves are accurate or that the medical services documented therein were actually rendered or necessary. Stated another way, the plaintiff is not required to establish the merits of the claim to meet its prima facie burden. To the extent that Art of Healing imposes a “business record” requirement obliging the plaintiff to establish the truth or the merits of the plaintiff’s claim, we overrule Art of Healing. Viviane Etienne Med Care PC v Country-Wide Ins Co, 2013 NY Slip Op 08430, 2nd Dept 12-18-13