The examination under oath your practice missed, and what it costs.

A missed examination under oath is not a scheduling problem. Appearance at a properly noticed EUO is a condition precedent to coverage under the mandatory endorsement. Miss two, and a carrier will try to disclaim every bill from that loss. How far that defense reaches depends on the department, and on the carrier’s own paperwork.

What happens if my practice missed a no-fault examination under oath?

A provider that fails to appear at two properly noticed examinations under oath has breached a condition precedent to coverage under the no-fault policy. The carrier may then refuse to reimburse the bills for that accident, and in the First Department it may do so retroactive to the date of loss. Therefore, disclaimable.

The rule comes first. An EUO is verification the carrier may demand before it pays. Appearance is not optional cooperation. It is a condition of coverage, and failure to appear vitiates it.

Law: Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 (1st Dept 2015).

Now the consequence. In the First Department, once the assignor or assignee fails to appear, the carrier may deny all claims retroactive to the date of loss, whether or not the denials were timely. That court puts nonappearance inside the exception to the preclusion doctrine. Not every department agrees.

Law: Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1st Dept 2011); Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 (1997).

It is not always what the record supports.

Where does the EUO requirement actually come from?

The EUO requirement comes from two places. The mandatory personal injury protection endorsement at 11 NYCRR 65-1.1 obligates the eligible injured person to submit to examination when and as often as the company may reasonably require. The claims practice rules at 11 NYCRR 65-3.5 govern how and when the carrier may demand it.

The endorsement supplies the duty. The regulation supplies the calendar. A carrier that meets the first and ignores the second has not earned its defense.

A third piece is easy to overlook. The regulation does not permit an EUO on a hunch. When an insurer requires an examination under oath to establish proof of claim, that requirement must rest on the application of objective standards, so that there is specific objective justification for the examination. The insurer’s standards are open to review by department examiners.

Law: 11 NYCRR 65-3.5(e).

What deadlines did the carrier have to meet before demanding my EUO?

Two deadlines control most EUO disputes. Additional verification, including an EUO, must be requested within 15 business days of the carrier’s receipt of the prescribed verification forms. If verification is not supplied 30 calendar days after that original request, the carrier must follow up within 10 calendar days.

The sequence a court reads:

• The carrier receives the prescribed verification forms, ordinarily your NF-3 bills.
• Within 15 business days it must request any additional verification. An EUO scheduling letter is that request.
• It is entitled to receive that verification directly from the party it asked.
• If 30 calendar days pass without the verification, it has 10 calendar days to follow up, by mail or properly documented telephone call.
• At the same time it must tell the applicant and the applicant’s attorney in writing why the claim is delayed, naming the missing verification and the party asked for it.
• It may not issue a denial of claim form before receiving all requested verification, subject to narrow exceptions in the regulation.

Law: 11 NYCRR 65-3.5(b); 11 NYCRR 65-3.5(c); 11 NYCRR 65-3.6(b); 11 NYCRR 65-3.8(b)(3).

A separate clock runs against you, but read its limits. For services rendered on or after April 1, 2013, a party from whom verification is requested must, within 120 calendar days of the initial request, submit all verification in its possession or control, or written proof of reasonable justification for not complying. Two limits matter. The carrier earns that denial ground only if its request carried the advisement the regulation requires. And the provision does not reach a prescribed NF form, a medical examination request, or an EUO request. Ignoring an EUO letter is a nonappearance problem, not a 120-day problem.

Law: 11 NYCRR 65-3.5(o); 11 NYCRR 65-3.8(b)(3).

The regulation handed the carrier a calendar before it handed the carrier a defense. Hold it to the calendar.

What does the carrier have to prove, and what does a form affidavit fail to prove?

A carrier asserting EUO nonappearance must prove two things about the scheduling letters and one thing about the day itself. That the letters were duly and timely scheduled under the verification rules. That they were properly mailed. That nobody appeared. Outside the First Department it must also prove a timely denial on that ground.

Scheduling and mailing are not the same showing. On mailing, the proof must be evidence of actual mailing, or an affidavit from a person with personal knowledge of the standard office practice for ensuring that letters are properly addressed and mailed.

Law: Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 (2d Dept 2020); Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693 (2d Dept 2016); Nassau Ins. Co. v Murray, 46 NY2d 828 (1978).

Read the affidavit. Does the affiant say he personally mailed these letters? Does he describe his office’s practice for mailing such notices? Or does he say only, in the passive voice, that letters were sent?

In the First Department, a carrier’s counsel filed an affidavit that did neither. The carrier still prevailed, because it supplied objective proof of mailing: EUO notices bearing certified mail numbers that matched the return receipts and postal records. Remove that proof and the affidavit stands alone.

Law: Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 (1st Dept 2015).

An affidavit that describes a mailroom in the abstract proves a mailroom. It does not prove your letter.

Nonappearance is the third element. It needs a witness with personal knowledge that the room stayed empty, usually the attorney who would have conducted the examination. An adjuster who was never in the room is a weaker witness to it.

Can I still fight if the first EUO notice was defective or late?

Yes. A defective or untimely first EUO notice is the first thing to attack, because the verification structure is sequential. A follow-up request draws its force from a valid original request. If the original scheduling letter was untimely under the 15 business day rule, the follow-up does not cure it, though untimeliness alone does not always end the defense.

The Second Department has framed the toll precisely. Where an original EUO request was timely made under 11 NYCRR 65-3.5(b) and no one appeared, the carrier may follow up as often as it finds necessary while the initial toll continues, so long as the follow-ups are timely and proper. Each qualifier there is a place to push.

Law: Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 (2d Dept 2023).

Untimeliness is not a magic word. A late request generally fails to toll the carrier’s time to pay or deny, which makes the denial late. Whether that costs the carrier the defense is the question the departments answer differently.

Watch for the pre-claim EUO. Where a carrier demanded an examination before it received your bills, sections 65-3.5 and 65-3.6 did not govern that request. Once the bills arrive, the carrier must comply with the follow-up provisions of 65-3.6(b). A pre-claim letter is not a permanent excuse.

Law: Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468 (1st Dept 2016).

Then there is the reason for the examination. Section 65-3.5(e) requires objective justification, and the departments weigh it differently. The First Department has treated the carrier’s reason for the EUO as a fact essential to justify opposition to summary judgment, making an early motion premature. The Second Department has held that a carrier need not set forth objective reasons to make its prima facie showing on nonappearance. Check your courthouse first.

Law: American Transit Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 (1st Dept 2015); Interboro Ins. Co. v Clennon, 113 AD3d 596 (2d Dept 2014).

Finally, nonappearance is not always fatal where there was a reason. Regulatory guidance states that scheduling and rescheduling an EUO does not by itself justify a denial where the required party offered a reasonable excuse and is attempting, in cooperation with the carrier, to set a reasonably convenient time or place.

Guidance: New York State Insurance Department, Office of General Counsel Opinion No. 06-12-16 (Dec. 22, 2006).

That is guidance, not binding law, and no court must follow it. Show it anyway when your correspondence records a genuine effort to reschedule and the carrier’s records none.

How is a provider EUO different from the claimant’s EUO?

A claimant EUO and a provider EUO are different examinations with different sources and different targets. The claimant EUO tests the accident and the injury. The provider EUO tests the practice itself. Both are conditions precedent, but the record a carrier must build for each is not identical, and the mailing address is not the same address.

The last row is the practical one. A disclaimer resting on your assignor’s nonappearance punishes you for a person you do not control. When it rests on your own, you still hold the cure.

Does it matter which Appellate Division my case is in?

Yes. The departments do not agree on whether a carrier’s failure to issue a timely denial forfeits the EUO nonappearance defense. That single disagreement can decide your case, and it turns on where the declaratory judgment action was filed rather than on anything your practice did or failed to do.

In the First Department, nonappearance permits retroactive denial whether or not the denials were timely.

Law: Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1st Dept 2011).

In the Fourth Department, the opposite. That court held the nonappearance defense is subject to preclusion, so the carrier must establish that it issued timely denials on that ground. A claims specialist’s conclusory assertion that denial forms went out, unsupported by the forms, did not carry the burden.

Law: Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 (4th Dept 2018).

In the Second Department, the elements are at least two duly scheduled examinations, timely and proper mailing of the scheduling letters, nonappearance, and a timely denial on that ground after the last scheduled examination.

Law: Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 (2d Dept 2020); Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 (2d Dept 2023); St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 (2d Dept 2008).

What should you do first if a carrier is already suing you?

You may have been sued, and a summary judgment motion can follow quickly. A default or an unopposed motion can produce a declaration that no coverage exists, so the answer date is the first thing to protect. Everything after that is document work.

• Calendar the answer date first. A default judgment of no coverage is far harder to undo than to prevent.
• Build one dated timeline: receipt of each NF-3, each scheduling letter, each scheduled examination, each denial form.
• Measure 15 business days from receipt of the verification forms to the first scheduling letter, then 30 plus 10 calendar days to the follow-up.
• Pull the mailing proof apart. Who signed it, does he claim personal mailing, does he describe an office practice for proper addressing and mailing, do the certified mail numbers match the receipts.
• Confirm the denial forms are in the record, not merely described in an affidavit.
• Collect every letter, email and voicemail in which your office offered dates, sought an adjournment, or asked why the EUO was demanded.
• If a document verification request is still inside its 120 day window, answer it in writing now, with the documents or a reasonable justification.
• Where your department weighs it, preserve the objective justification issue before opposing summary judgment.

The carrier’s case is a paper case. It rises or falls on letters, receipts and dates the carrier generated, not you. Get the paper and find out whether the calendar was kept.