I was beaten by a fellow blogger on the verification issue…

The result reported here in December 2008 did not survive appeal. In Infinity Health Products v Eveready Insurance Co., the Appellate Term initially held that a follow-up sent 27 days after the first verification request was premature and ineffective. The Second Department reversed in 2009, relying on the provider’s failure to answer either request and the narrow three-day timing discrepancy.

Legal Update: The 2008 Appellate Term result discussed in this post was reversed by the Appellate Division on November 17, 2009. The insurer obtained dismissal without prejudice on the specific unanswered-request record. This was not a preclusion sanction against the provider or a general license to disregard verification deadlines.

Last reviewed: September 2026.

This page preserves Jason’s early commentary and explains the change in result. For the later stage of the same appeal, see the archive’s 2009 Infinity appeal note.

The 2008 ruling and the party facing preclusion

The provider sought payment for medical supplies through a no-fault action. It moved for summary judgment. Eveready opposed and sought dismissal on the ground that requested verification had not been provided.

The Appellate Term majority concluded that the insurer’s early follow-up failed to preserve the toll of the payment period. The resulting preclusion concerned the insurer’s defenses, including its excessive-fee defense. It was not an order barring the provider from recovering because the provider missed a response deadline.

That distinction corrects a misleading reading of “preclusion” in this history. The provider won at that stage. The insurer lost the benefit of its asserted verification toll. Describing the ruling as a provider’s punishment for failing to respond reverses the parties’ positions.

Justice Golia dissented. He questioned both the provider’s initial proof and the treatment of the follow-up timing. Jason’s original discussion of leave to appeal, quoted below, reflects his interest in whether the Second Department would agree with the majority. It should not be read as a statement that appellate review remained pending after 2009.

The claim-handling chronology

The appellate decision supplies the sequence:

• The provider submitted its claim on March 14, 2001.
• Eveready sent its first verification request on March 21, seven days later.
• The provider did not respond.
• Eveready sent its second request on April 17, 27 days after the first.
• The provider did not respond to that request either.

The litigation began years later. The dispute was therefore not over an insurer sending an initial request before any claim existed. It concerned a follow-up after an initial request everyone agreed was timely.

Nor was this a dispute about a provider who sent a specific objection or supplied part of the requested material. The repeated absence of a response was central to the Appellate Division’s reasoning. Cases about an inadequate item-specific response or competing proof of delivery require a different factual comparison.

What changed on appeal

On November 17, 2009, the Second Department reversed the Appellate Term and Civil Court orders. It denied the provider’s motion and granted the insurer’s cross-motion, without prejudice to a new action.

The court acknowledged that the insurer had not strictly followed the follow-up timing rule. Nevertheless, it found it inequitable, on these facts, to reward a provider that ignored both requests because the second letter was sent three days early. The court treated the provider as estopped from asserting preclusion in those circumstances.

This was not a finding that all early letters comply with the regulation. The opinion repeatedly ties the result to its facts. It also does not establish that every procedural objection is forfeited by responding, or that every unanswered request supports a permanent denial.

Dismissal without prejudice is important. The appellate court treated the action as premature while verification remained unanswered. It did not decide the proper reimbursement amount or announce that the underlying claim could never be pursued.

Keep the different timing rules separate

The historical claim arose under former section 65.15. The decision identifies corresponding provisions in the current structure of 11 NYCRR Part 65. Do not apply a current provision to an old claim without checking the applicable regulatory version.

Under section 65-3.5(b), the fifteen-business-day period concerns the insurer’s request for additional verification after receiving completed prescribed forms. It is not the general period in which a provider must answer.

Section 65-3.6(b) addresses follow-up where verification remains outstanding 30 calendar days after the initial request. It directs the insurer to follow up within ten calendar days. These are calendar days, not business days.

For qualifying later claims, sections 65-3.5(o) and 65-3.8(b)(3) also address production or written reasonable justification within 120 days and the conditions for a denial after that period. Those provisions exclude prescribed NF forms, medical examinations and EUOs. They should not be substituted for the follow-up rule applied in Infinity.

Responding without inventing a waiver rule

A questionable request calls for a specific, documented response. The 2009 decision does not say that supplying information automatically waives every objection to timing, scope or relevance. It addresses a provider that did not answer either letter.

An objection and production of responsive material are different acts. A record should show what was requested, what was supplied, what was disputed and the reason for any withheld item. Whether a particular objection is preserved depends on the actual circumstances and governing authority; Infinity is not a universal waiver rule.

The practical value of this early post is its record of the disagreement before the reversal. Its current value comes from putting that reversal next to the original commentary, with the provider’s and insurer’s roles stated correctly.

Jason’s original commentary

The original comments below are retained as historical commentary. The case-specific corrections and later developments are explained above.

I found this story a week before it was brought to life by a fellow blogger, but since the fellow blogger published it first, he gets deserved credit. The name of the case is: Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term. 2d Dept. 2008).

This was the case involving a premature follow-up additional verification and the preclusion sanction due to this occurring. It is interesting to see the Second Dept taking up this issue. The dissenter at the Appellate Term observed other Appellate Division cases that found the sanction of preclusion unwarranted in this factual scenario. This is probably what lead the App. Div to grant leave as to this issue. As I have learned recently through personal experience in two recent matters, the App. Div. does not like to grant leave to no fault matters and does not like motions to reargue when a non-articulated argument, if properly preserved, would reverse their opinion and order.

Frequently Asked Questions

Q: What should I do if I receive a verification request that appears to be premature?

Check whether the disputed letter is an initial request or a follow-up, preserve its envelope and transmission records, and obtain advice on a specific response. Infinity’s 2009 reversal concerned two unanswered requests and a follow-up three days early; it is not a safe basis for ignoring every questionable request.

Q: How quickly must I respond to a legitimate verification request?

There is no blanket fifteen-business-day provider response rule in the provision discussed here. That period in 11 NYCRR 65-3.5(b) concerns the insurer’s request. Qualifying additional-verification requests have a separate 120-calendar-day production-or-written-justification framework, with notice requirements and exclusions for NF forms, IMEs and EUOs.

Q: Can I challenge a verification request after I’ve already responded to it?

Infinity does not hold that a response automatically waives every challenge. Record what was produced and any specific objection. The sufficiency and preservation of a challenge depend on the request, the response and the governing law, not a blanket rule that cooperation waives all rights.

Q: What happens if I’m subject to preclusion sanctions due to a verification dispute?

Identify who was precluded and from asserting what. In the 2008 Infinity ruling, the insurer’s defenses were precluded; the provider was not sanctioned. That result was reversed in 2009, when the insurer obtained dismissal of the premature action without prejudice. Other orders must be read on their own terms.

Q: How can I protect my practice from verification-related problems?

Keep the claim form, each request, an itemized response, any explanation for unavailable material and proof of transmission together. Use the applicable deadlines and retain the actual correspondence. These practices support an accurate record; they do not guarantee payment or the success of a later motion.

Connect to the Encyclopedia

Start with the no-fault verification hub and 2026 Chapa update for the governing framework and case directory. Related case notes:

• Bronx Acupuncture: By Report documentation.
• Acupuncture Healthcare Plaza: a late EUO follow-up.
• Excel Surgery: answering the specific requested items.
• The 2009 Infinity appeal: from pending issue to decision.
• Mount Sinai: the NF-5 after a defective UB-04.

For review of a particular no-fault verification dispute, request a Free Case Review. Keep the requests, responses and relevant claim dates available for that review.