Fraud is driving up the cost of auto insurance for New York State drivers, particularly those who live in New York City’s five boroughs and its neighboring suburbs. As a result, some people are paying four times more for no-fault auto insurance than the state average and seven times more than drivers in Albany, which has fewer cases of fraud.
Sadly and ironically, it is the New York State auto insurance system itself that is contributing to the problem. If the system’s flaws and weaknesses are not addressed with meaningful reform, the cost of inaction in 2010 alone will approach a quarter of a billion dollars.
New York’s Auto Insurance System
No-Fault: New York adopted its no-fault system in 1974, at a time when auto insurance costs were rising rapidly and auto insurance disputes were clogging the courts, causing long delays in the payment of compensation to accident victims. The concept behind no-fault was simple. Taking disputes over small claims out of the courts and transferring the payment of compensation to the policyholder’s own insurance company, regardless of who was at fault in the accident, results in a system that is more cost effective and that fairly and promptly compensates auto accident victims for their injuries.
New York is one of 12 states and Puerto Rico that has what insurers refer to as a “true” no-fault system, one that provides for the payment of injury claims by the victim’s own insurance company but, to offset more generous benefits, imposes restrictions on filing a lawsuit for noneconomic damages, such as emotional suffering. (Economic damages are for tangible and computable losses – medical care costs and funeral expenses, for example.) All true no-fault states have thresholds that dictate at what point a policyholder may go to court to claim for noneconomic damages.
Thresholds and Personal Injury Protection (PIP): Some states, like New York, have a verbal threshold for filing a lawsuit for pain and suffering that describes the severity of the accident, such as serious disfigurement or death. Others have a monetary threshold based on a certain dollar amount of medical bills. Policyholders in no-fault states are entitled to a certain dollar amount of medical and other benefits – $50,000 in New York – under the no-fault coverage part of a policy known as personal injury protection or PIP. When medical bills exceed this figure, victims may take their case to court to recover medical care costs and other economic damages in excess of that amount as well as noneconomic damages.
The Cost of Inaction
Fifty thousand dollars offers medical care providers intent on defrauding the system a significant sum to work with. In the last few years, a very small subset of the medical community, working with a small group of attorneys specializing in the collection of unpaid medical bills, has found a way to manipulate the system to their advantage. They inundate insurers with so much paperwork for so many medical treatments and procedures that it is impossible for claims investigators scrutinize each claim to determine its validity before the deadline for payment. If claims are denied, they sue the insurer for insubstantial errors made in the rush to meet deadline requirements.
No-Fault Fraud is Rampant
Rise in suspected claims: No-fault cases reported to the bureau rose by an alarming 22 percent from 2006 to 2008. Suspected no-fault claims totaled 13,433 in 2009, an increase of almost 9 percent from 2008, and accounted for 54 percent of all fraud reports received during 2009, according to the New York Insurance Department’s fraud bureau. More than 100 cases against perpetrators were opened. Interestingly, reflecting the nature of the cases, no-fault fraud has been transferred from the fraud bureau’s auto unit to its medical unit.
Insurers can also report questionable claims to the National Insurance Crime Bureau (NICB), which acts as a bridge between the insurance industry and law enforcement agencies. Statistics from the NICB show that fraud is still a major problem, despite changes in Regulation 68, which implements the no-fault law, and arrests each year by law enforcement authorities. The changes to Regulation 68, which went into effect in 2002, were intended to make fraud more difficult to perpetrate.
Analysis of claims: In an analysis of suspected claims submitted in 2009 up to the end of November 2009, the NICB found 4,776 out of the 6,351, or 75 percent, were for personal auto claims. Further analysis revealed that among the top 10 reasons for referral to the bureau were faked/exaggerated injury; staged/caused accident; lack of cooperation from the insured; excessive treatment; billings for services not rendered; and faked damage. Faked/exaggerated injury reports were mentioned in 1,235 submissions to the NICB, or 26 percent of questionable no-fault claims. Moreover, 44 percent of all reasons for referring New York personal auto insurance claims in 2009 fell into a medical investigation category.
NICB investigators have found that patterns of no-fault fraud fall into four categories: staged accidents, where a vehicle is used to perpetrate fraud; illegal corporate structures, where lay persons rather than licensed medical practitioners are opening and operating medical clinics ,or “medical mills”; scripted, regimented treatment and medical procedures that are ordered for all patients, irrespective of their individual injuries or the severity of those injuries; and egregious, purposeful misuse of durable medical equipment, where unscrupulous providers sell these devices at highly inflated prices and often without regard to a patient’s specific needs.
Staged accidents: Staged accidents are aimed at creating an accident scenario from which costly and fraudulently contrived medical claims can be created to obtain payments from auto insurers.
Typically, owners and managers of medical mills pay “runners,” or recruiters, to arrange minor auto accidents and send individuals supposedly injured in the accidents to the clinics for treatment. The runners recruit drivers to cause the accident and passengers to ride in the cars. Being a runner is a lucrative business, with each “referral” earning the runner a large fee paid by the attorney associated with the medical mill or the clinic itself. Usually, two to four passengers are recruited to maximize the profit per accident. Insurers have also reported that the same vehicle is sometimes used in several staged accidents. When the alleged accidents are investigated, frequently none of the cars involved can be found, and none of the “injured” parties will talk.
Although staged accidents are intended to cause no real injuries to the defendant driver or passengers, the accidents are reported to police so that a record can be created to support the fraudulent insurance claims. Some claimants, despite the absence of any apparent injuries, insist on being transported to a hospital by ambulance in order to establish the legitimacy of their claims for medical treatment. Runners then direct them to clinics for bogus medical treatment, often driving the “passengers” there themselves. The clinics then submit claims under the insurance policy of the runner or another ring member who had insured the car.
Medical bills often reach $10,000 to $20,000 per passenger and can go as high as $50,000 per passenger under the New York no-fault law. A single staged accident with multiple claimants generally results in billings for hundreds or even thousands of treatments.
How Should the System Be Changed?
The New York no-fault law and Regulation 68 contain many provisions designed to protect insurance consumers and claimants and improve the system. Ironically, some of these provisions are enabling those who commit fraud greater opportunities for enrichment. So that consumers are not forced to transfer a substantial portion of their hard-earned wages to criminals, lawmakers and regulators must review all aspects of the law that facilitate abuse.
The 30-day rule: For example, to protect claimants from unwarranted delay in the payment of claims, the New York no-fault law requires that insurers pay claims for PIP benefits, or deny these benefits, within 30 days of the receipt of the claim and that they pay interest to the claimant on the benefit amount if they fail to meet those requirements.
In 1997 a New York Court of Appeals ruling in Presbyterian Hospital v. Maryland Casualty Company added another penalty: an insurer is precluded from denying a claim or asserting any defense of its nonpayment if it has violated the 30-day rule. The Presbyterian decision opened the door for unscrupulous individuals to take advantage of this strict 30-day timeframe. Just the sheer volume of bills submitted makes it difficult to check and evaluate each claim for possible fraud within that time period. In an effort to stay within the law’s confines, claims may be paid for excessive amounts or for services that were billed but never actually provided.
One proposal would modify the Presbyterian decision by making payment of interest the only penalty when an insurer fails to issue a timely payment or denial within the 30-day period. Denial of a claim or defense of nonpayment for cause, such as lack of coverage or fraud, would not be precluded from consideration. In some cases, a timely denial is issued but is invalidated by non-substantive errors. If this change were implemented, the penalty for failure to pay or deny claims within the 30-day period would be retained, but insurers would have the opportunity to defend against payment of claims that were not medically necessary or were fraudulent.
Assignment of benefits: An assignment of benefits is common in all types of medical claims. Patients/claimants regularly sign documents authorizing their medical care provider to submit charges to an insurer for payment; provide information to support the claim; and receive benefits directly from the insurer on the patient’s behalf. The authorization does not give the medical care provider the right to sue the insurer directly for nonpayment – that right remains with the patient/claimant – but the provider does have the right to seek payment from the patient or from the proceeds of any successful lawsuit against the insurer.
However, the assignment process in no-fault claims differs substantially from the one commonly used for typical visits to the doctor’s office. Consumers may not be aware that it assigns “all rights and privileges and remedies” to the provider to pursue benefits under the no-fault law, meaning that the medical care provider “assignee” has the right to contest everything from policy coverage and duties to comply with policy conditions to claimants’ attendance at independent medical examinations or examinations under oath. The result is a huge amount of litigation instigated by providers/assignees with little or no involvement from the injured party.
One solution to the assignment of benefits problem would require amendments to the statute so that the right to contest denial of claims involving insurance policy issues belongs to the claimant only.
Frequently, a lengthy exchange of paperwork ensues, with a myriad of requirements for second requests and follow-ups, providing more opportunities to generate the kind of non-substantial technical errors that have little bearing on the merits of the claim presented but that serve as a basis to deny any defense to it.
The problem of the burden of proof could be addressed by amending the statute to require the assignee to present admissible evidence that the services billed for were medically necessary and provided by a properly licensed practitioner. Furthermore, the statute should require that claims for no-fault benefits have been properly assigned to the provider and that they are billed for according to the applicable fee schedule and all applicable regulations.