EUO no-show sustainedNovember 4, 2017

Sharp View Diagnostic Imaging, P.C. v Esurance, 2017 NY Slip Op 51466(U)(App. Term 2d Dept. 2017)

The letter “delaying the bill” as opposed to the “letter seeking verification”

“Plaintiff argues on appeal that defendant improperly relied on letters that “did not seek any documents or information” from plaintiff in order to toll defendant’s time to pay or deny the claims at issue. However, defendant alleged that it had sent letters scheduling examinations under oath (EUOs) (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which letters were attached to defendant’s cross motion, and plaintiff has raised no issue with respect to the sufficiency of those letters (see Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).”

The Appellate Term in prior cases is to blame for allowing this argument to remain as that Court never delineated the former from the latter.  From what i have seen, a delay letter stating the bill is delayed for an EUO coupled with proof of the EUO letter addresses the issue. On a “no-show” case, the issue should not come up as the carrier needs to present all of this evidence to meet its case.

But when a bill is delayed for an EUO, the Assignor attends and the bill is denied on medical necessity grounds, this issue is more acute.  This is because the document prepared for the carrier – whether it be arbitration or litigation – will often rely on the bill delay, an assertion that the EIP attended the EUO, a denial and the peer-IME report.  Missing is the scheduling letter, proof of its mailing and the EUO transcript.

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