The purpose of this post is to help assist healthcare providers and the public with questions they have concerning topics related to Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. The Callagy Law team is knowledgeable in all aspects of these sorts of legal matters and will frequently post topics in this field. We hope to have this article shine a light on many common questions.
There are many times when a provider will receive a notification from the patient’s insurance company notifying them that benefits are terminated due to the patient’s failure to appear for a scheduled Independent Medical Examination (“IME”) appointment. Insurance companies, patient and providers alike have to adhere to N.J.A.C. 11:3-4.7 in regards to the scheduling of an IME however, and however should know that there are several defenses available that will negate the carrier’s denials.
No notice to provider of carrier’s plan provisions regarding IME attendance
The carrier may allege that the patient and the provider were notified of the obligation to appear for an IME via its Decision Point Review Plan (“DPRP”). (Read more about DPRP’s in thei blog post). There is a legal requirement, however, that the carrier must show that the DPRP was in fact sent to the patient and the provider by submitting letters addressed to each. N.J.A.C. §11:3-4.7(c) provides in pertinent part: “(c) A decision point review plan filing shall include the following information: [ . . . ] 3. Copies of the informational materials described in (d) below and an explanation of how the insurer will distribute information to policyholders, injured persons and providers at policy issuance, renewal and upon notification of claim” (emphasis added).
If an insurance company cannot prove that these letters were sent, the denial of benefits based on an alleged failure to cooperate will be overcome.
No proof of delivery of IME Scheduling Notices
N.J.A.C. 11:3-4.7(e)(7), provides the following, “Insurers may include in their decision point review plan a procedure for the denial or reimbursement for treatment, diagnostic testing or durable medical equipment after repeated unexcused failure to attend a scheduled physical examination. The procedure shall provide for adequate notification of the insured and the treating provider of the consequences of failure to attend the examination.” This essentially requires insurers to provide adequate notification of scheduled IMEs.
The insurance company must submit proof that correspondence was sent to the patient and the provider indicating the time and date of the IME and any receipts or confirmations of delivery of same (i.e. certified mailings). Without such correspondence, there is no tangible proof that the patient or the treating provider were sent the scheduling letters and therefore the scheduling letters cannot be used to terminate benefits, and an alleged failure to cooperate will be overcome
IMEs not timely scheduled
Additionally, N.J.A.C. 11:3-4.7(e) provides: “A physical examination of the injured party shall be conducted as follows: 1. The insurer shall notify the injured person or his or her designee that a physical examination is required to determine the medical necessity of further treatment, diagnostic test or durable medical equipment…2. The appointment for the physical examination shall be scheduled within seven calendar days of receipt of the notice.”
IME scheduling letters that set the date of the exam significantly further out than seven days have been found by certain arbitrators to have violated the statutory requirements, and have, therefore, been ruled to not be an effective means of terminating the patient’s benefits.
Draconian remedy not established
Lastly, New Jersey’s Appellate Division ruled in New Jersey Auto. Full Ins. Co. v. Jallah, 256 N.J. Super. 134,141 (App. Div. 1992) that a dismissal of an otherwise deserving claim for failure to submit to a statement should be reserved for egregious breaches, referring to the dismissal of a claim as a draconian remedy.
An insurance company’s evidence must demonstrate that the patient’s failure to appear shows that the patient was non-cooperative and egregiously breached his/her duty to cooperate and therefore warrants such a drastic remedy as denial of payment.
Without a showing of an egregious breach, some arbitrators have found that a failure to show at an IME is not sufficient to terminate the patient’s benefits.
Conclusion
If providers become aware that a carrier is seeking to examine a patient, the provider should encourage the patient to attend the examination, as such is required under the policy. If, however, the patient does not attend, there are still several possible defenses to the carrier’s eventual termination of benefits. Callagy Law has been successful at advancing each of the defenses above, depending on the circumstances of the case.
We hope you have found this information helpful and interesting. Please reach out to us here with any questions or comments regarding healthcare legal matters, or if you are a medical provider that has questions regarding Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.
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Failure to Cooperate – IME No Show | Callagy Law
