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Re: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry The Rogak Report: 17 Apr 2009 ** No Fault - Hearsay - Business Records **

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  • Robert E. Dash
    Larry I agree with the decision. The billing company cannot be a pass through and testify to the maintenance of the bills as a business record. I have
    Message 1 of 3 , Apr 17, 2009
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      Larry

      I agree with the decision. The billing company cannot be a pass through and testify to the maintenance of the bills as a business record.

      I have providers who use a billing company but I have the providers staff member and the billing co testify to avoid this nightmare.

      I think that if the billing company maintains a copy (electronically or otherwise) that should do it. This way the billing co is in actuality maintaining the billing file for the provider.

      All the best
      Rob



      Robert E. Dash
      Law Offices of Robert E. Dash
      6800 Jericho Turnpike, Suite 200AW
      Syosset, New York 11791
      Telephone (516) 931-5668
      Facsimile (516) 931-5647
      www.dashlawny.com
      email rdash@...

      Sent from my Verizon Wireless BlackBerry


      From: "insurancelawyer"
      Date: Fri, 17 Apr 2009 18:24:17 -0000
      To: <TheRogakReport@yahoogroups.com>
      Subject: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry The Rogak Report: 17 Apr 2009 ** No Fault - Hearsay - Business Records **

      OVERRULING EARLIER DECISION, COURT HOLDS BUSINESS RECORDS ARE HEARSAY WHEN SENT FROM DOCTOR TO BILLING COMPANY

      Andrew Carothers, M.D., P.C. a/a/o Tatyana Matevich v. GEICO Indemnity Co.
      2009 NYSlipOp 29155
      Decided on April 10, 2009
      Appellate Term, Second Department
      Edited by Lawrence N. Rogak


      Overruling and discarding its own prior rule of law from a 2006 case, the Appellate Term now rules that when a doctor sends claims forms to his independent billing company, those forms are inadmissible hearsay if the billing company attempts to introduce them at trial and therefore it cannot use them to establish its prima facie case.   As a result, this suit and a dozen similar ones in which plaintiff won at trial in the Civil Court, were reversed and dismissed.

      "At the trial of this action by a provider to recover assigned first-party no-fault benefits, the court admitted a series of documents into evidence, over defendant's objection, upon the testimony of plaintiff's sole witness, the billing manager for Advanced Health Care Solutions (AHCS), a company that was hired by plaintiff to handle its no-fault billing. Defendant appeals from the judgment entered in plaintiff's favor, arguing that the witness failed to lay a business records foundation for the documents, that he was incompetent to do so, and that without said documents plaintiff failed to establish its entitlement to be paid." We agree.

      "The witness testified that plaintiff's no-fault claim forms were prepared by plaintiff and transmitted electronically to AHCS to be printed and mailed to defendant. He further testified that the remaining subject documents were forwarded by plaintiff to AHCS. Even assuming that the witness was familiar with plaintiff's business practices and procedures, and that, as an employee of plaintiff's billing company, the witness would be competent to testify about such practices and procedures, he still failed to establish, by laying the requisite foundation (see CPLR 4518 [a]), that the documents were plaintiff's business records and, therefore, admissible in court pursuant to the business records exception to the rule against hearsay."

      "Upon reconsideration of this court's decision in Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U] [App Term, 2d & 11th Jud Dists 2006]), we conclude that the law was misapplied to the facts presented in that case. Accordingly, to the extent that it is not in accord with this decision, it should no longer be followed."

      "In light of plaintiff's failure to establish the admissibility of its evidence, including its claim forms, plaintiff did not establish a prima facie case. Even under the standard set forth in Pine Hollow Med., P.C., the witness' testimony was not sufficient to lay the proper foundation for the records plaintiff sought to introduce into evidence because AHCS did not incorporate plaintiff's records into its own records, but merely received, printed and mailed them. Accordingly, defendant was entitled to judgment dismissing the complaint."

      Comment: Well, this decision begs the question - how can an independent billing company "incorporate" the doctor's billing records into its own records, and thereby perhaps overcome the hearsay objection?   Could it be a simple as creating a filing system for records from the doctor/provider and dropping the doctor/provider' s records into its own files?   The answer remains to be seen, but I guarantee you somebody is working on it.

      Larry Rogak 

    • Scott Schwaber
      The Issue is weather or not the insurance company received all the necessary verification. If there is a denial the insurance company has received all the
      Message 2 of 3 , Apr 18, 2009
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        The Issue is weather or not the insurance company received all the necessary verification.  If there is a denial the insurance company has received all the necessary verification, because according to the statute no denial can be made unless all necessary verification has been received.  Unfortunately this major portion of the statute seems to be ignored.


        To: TheRogakReport@yahoogroups.com
        From: rdash@...
        Date: Fri, 17 Apr 2009 19:29:58 +0000
        Subject: Re: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry The Rogak Report: 17 Apr 2009 ** No Fault - Hearsay - Business Records **



        Larry

        I agree with the decision. The billing company cannot be a pass through and testify to the maintenance of the bills as a business record.

        I have providers who use a billing company but I have the providers staff member and the billing co testify to avoid this nightmare.

        I think that if the billing company maintains a copy (electronically or otherwise) that should do it. This way the billing co is in actuality maintaining the billing file for the provider.

        All the best
        Rob




        Robert E. Dash
        Law Offices of Robert E. Dash
        6800 Jericho Turnpike, Suite 200AW
        Syosset, New York 11791
        Telephone (516) 931-5668
        Facsimile (516) 931-5647
        www.dashlawny. com
        email rdash@dashlawny. com

        Sent from my Verizon Wireless BlackBerry


        From: "insurancelawyer"
        Date: Fri, 17 Apr 2009 18:24:17 -0000
        To: <TheRogakReport@ yahoogroups. com>
        Subject: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry The Rogak Report: 17 Apr 2009 ** No Fault - Hearsay - Business Records **


        OVERRULING EARLIER DECISION, COURT HOLDS BUSINESS RECORDS ARE HEARSAY WHEN SENT FROM DOCTOR TO BILLING COMPANY
        Andrew Carothers, M.D., P.C. a/a/o Tatyana Matevich v. GEICO Indemnity Co.
        2009 NYSlipOp 29155
        Decided on April 10, 2009
        Appellate Term, Second Department
        Edited by Lawrence N. Rogak


        Overruling and discarding its own prior rule of law from a 2006 case, the Appellate Term now rules that when a doctor sends claims forms to his independent billing company, those forms are inadmissible hearsay if the billing company attempts to introduce them at trial and therefore it cannot use them to establish its prima facie case.   As a result, this suit and a dozen similar ones in which plaintiff won at trial in the Civil Court, were reversed and dismissed.
        "At the trial of this action by a provider to recover assigned first-party no-fault benefits, the court admitted a series of documents into evidence, over defendant's objection, upon the testimony of plaintiff's sole witness, the billing manager for Advanced Health Care Solutions (AHCS), a company that was hired by plaintiff to handle its no-fault billing. Defendant appeals from the judgment entered in plaintiff's favor, arguing that the witness failed to lay a business records foundation for the documents, that he was incompetent to do so, and that without said documents plaintiff failed to establish its entitlement to be paid." We agree.
        "The witness testified that plaintiff's no-fault claim forms were prepared by plaintiff and transmitted electronically to AHCS to be printed and mailed to defendant. He further testified that the remaining subject documents were forwarded by plaintiff to AHCS. Even assuming that the witness was familiar with plaintiff's business practices and procedures, and that, as an employee of plaintiff's billing company, the witness would be competent to testify about such practices and procedures, he still failed to establish, by laying the requisite foundation (see CPLR 4518 [a]), that the documents were plaintiff's business records and, therefore, admissible in court pursuant to the business records exception to the rule against hearsay."
        "Upon reconsideration of this court's decision in Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U] [App Term, 2d & 11th Jud Dists 2006]), we conclude that the law was misapplied to the facts presented in that case. Accordingly, to the extent that it is not in accord with this decision, it should no longer be followed."
        "In light of plaintiff's failure to establish the admissibility of its evidence, including its claim forms, plaintiff did not establish a prima facie case. Even under the standard set forth in Pine Hollow Med., P.C., the witness' testimony was not sufficient to lay the proper foundation for the records plaintiff sought to introduce into evidence because AHCS did not incorporate plaintiff's records into its own records, but merely received, printed and mailed them. Accordingly, defendant was entitled to judgment dismissing the complaint."
        Comment: Well, this decision begs the question - how can an independent billing company "incorporate" the doctor's billing records into its own records, and thereby perhaps overcome the hearsay objection?   Could it be a simple as creating a filing system for records from the doctor/provider and dropping the doctor/provider' s records into its own files?   The answer remains to be seen, but I guarantee you somebody is working on it.
        Larry Rogak 




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