Appellate Division to Rule on Timeliness of Follow-Up Additional Verification Requests

The Appellate Division has long since answered the question this post originally tracked. On November 17, 2009, it reversed the earlier Infinity Health Products v Eveready ruling. A follow-up sent three days early did not, on the particular unanswered-request record, strip the insurer of its verification toll.

Legal Update: The appeal anticipated in this August 2009 post was decided on November 17, 2009. The insurer won dismissal without prejudice on a record of two unanswered verification requests. The preserved title records the pre-decision moment; the appeal is not still awaiting a ruling.

Last reviewed: September 2026.

The original URL, title and publication date retain this page’s place in the archive. The quoted announcement below is historical. The account that follows explains the decision and why its result should not be turned into an unrestricted exception to the timing rules.

What the August 2009 post was tracking

The Appellate Term’s 2008 decision had affirmed summary judgment for a medical-supply provider. The majority treated the insurer’s follow-up request, sent 27 days after the initial request, as premature and ineffective. Without the asserted toll, the insurer could not maintain its offered defenses.

The dissent disagreed with that timing result and also questioned the provider’s initial proof. The dispute reached the Second Department by permission. Jason’s earlier December 2008 note records his reaction to that disagreement.

This August page originally reported a scheduled oral-argument date of September 11, 2009. That is preserved as the contemporaneous announcement, not independent confirmation here that argument occurred on that date. The published appellate opinion establishes the November 17 decision date and the disposition.

Follow the actual sequence

The insurer received the provider’s claim on March 14, 2001. It sent its first verification request seven days later, on March 21. The provider did not respond.

On April 17, 27 days after the first letter, the insurer sent a second request. The provider did not answer that letter either. Years later, the provider sued for payment and argued that the insurer had failed to pay or deny within the required period.

The dispute therefore involved a timely initial request followed by a slightly early follow-up, with no response to either. It did not involve a first request sent before a claim form, a timely complete response that the carrier ignored, or a provider’s specific written objection to a requested item.

Those distinctions define the useful comparison. A reader looking for the effect of an insufficient form should consult the Mount Sinai/Sound Shore note. A dispute about the contents of a response belongs with Excel Surgery.

The appellate result

The Second Department acknowledged the insurer’s failure to strictly comply with the follow-up timing. It nevertheless held, under the circumstances, that the provider was estopped from relying on that defect to obtain preclusion.

The court considered it inequitable to award judgment to a provider that ignored both requests merely because the second letter went out three days before the full 30-day period expired. Its decision stressed the particular facts and the insurer’s effort to obtain information needed to decide the claim.

The court denied the provider’s motion and granted the insurer’s cross-motion to dismiss, without prejudice to a new action. It did not decide the amount that should eventually be paid for the supplies, and it did not impose a permanent forfeiture of the provider’s claim.

This outcome is narrower than saying “premature requests are valid.” The regulation remained the starting point; the court supplied a fact-specific reason not to impose the consequence urged by the provider in this case.

What not to take from the decision

Infinity did not establish a fixed early-mailing window that insurers may always use. It did not excuse missing follow-ups altogether. It also did not decide that every late follow-up should be treated like a letter sent three days early.

Later timing cases should be compared on their own facts and in their own jurisdictions. The EUO follow-up note concerns a separate provision and an untimely denial. A favorable quotation about diligence does not resolve every scheduling or document-request dispute.

Nor does Infinity require a provider to choose between unconditional silence and surrendering all objections. The case contains no holding that responding automatically waives every challenge. A supported, specific response is different from the unanswered letters on which the court ruled.

The present regulatory reference point

The claim in Infinity arose under former section 65.15. The opinion identifies corresponding provisions in the modern structure of Regulation 68. Current claims still require checking the provision and version that apply to their facts.

Section 65-3.5(b) gives the insurer fifteen business days to seek additional verification after receiving completed prescribed forms. Section 65-3.6(b) provides for follow-up within ten calendar days once requested verification has remained outstanding for 30 calendar days. The two periods serve different functions.

Qualifying later requests are also subject to the production-or-written-justification and denial provisions in sections 65-3.5(o) and 65-3.8(b)(3). In Chapa (2026), the Second Department rejected an additional mandatory 150-day cutoff for a denial. That development does not rewrite the events or the holding of Infinity.

For a current dispute, assemble the claim form, request sequence, responses, mailing evidence and denial before choosing the controlling analogy. This page’s role is to close the old “ruling to come” loop and connect the anticipation of the appeal to the result.

The original August 2009 announcement

The following is the contemporaneous announcement, not a current notice of pending argument.

The issue involving whether a premature follow-up additional verification request may be deemed valid is now before the Appellate Division, Second Department. The case of “Infinity Health Products v. Eveready Insurance Company”, is slated for oral arguments on September 11, 2009.

Frequently Asked Questions

Q: What constitutes a “premature” verification request?

In Infinity, the disputed letter was a follow-up sent 27 days after the initial request, before the full 30-day interval addressed by the regulation had elapsed. The initial request was timely. The court’s treatment of that follow-up should not be generalized to every kind of allegedly premature request.

Q: Can a healthcare provider ignore a premature verification request?

Infinity is not a safe basis for ignoring one. The provider’s failure to answer either letter was central to the 2009 reversal in the insurer’s favor. Evaluate the request and preserve a specific response or objection with supporting facts.

Q: How will this decision affect pending no-fault insurance cases?

The appeal was decided in 2009. Its relevance to another case depends on the applicable regulation, jurisdiction and record, particularly whether the initial request was timely and both requests went unanswered. It is not a new ruling awaiting application to all current cases.

Q: What should insurance companies do while waiting for the decision?

There is no longer a decision to wait for: the Second Department ruled on November 17, 2009. Current claims should be processed under the applicable deadlines. The narrow equitable result in Infinity does not replace a timely request and follow-up procedure.

Q: Will this decision apply only to the Second Department?

Infinity is an Appellate Division, Second Department decision. Its application should account for the forum, the relevant hierarchy of authority and later controlling decisions. The opinion’s own repeated reliance on its particular facts limits any attempt to treat it as a universal timing exception.

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:

• Infinity’s 2008 decision and its reversal.
• Acupuncture Healthcare Plaza: a late EUO follow-up.
• Excel Surgery: answering the specific requested items.
• Mount Sinai: the NF-5 after a defective UB-04.
• Lida’s Medical Supply: preserving a subsection (p) argument.

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.