Couldn't get it right the second time around

The technical requirements for Independent Medical Examination scheduling letters in New York no-fault cases serve critical functions: they provide claimants with clear notice of examination requirements and establish insurers’ rights to toll claim payment deadlines pending examination completion. When carriers fail to comply with regulatory mandates governing IME notice content and delivery, courts void the tolling effect even if claimants ultimately received some form of notification. This Appellate Term decision illustrates how procedural defects in IME scheduling can prove fatal to insurer defenses, even when carriers attempt to supplement deficient documentation during litigation.

The case highlights the distinction between notice to claimants and notice to insurers in the IME context. Insurance Department regulations require that IME scheduling letters be addressed to and served upon claimants or their attorneys, not merely copied to them after primary delivery to insurers. This requirement ensures claimants understand they personally must attend examinations rather than viewing IME scheduling as administrative correspondence between medical vendors and insurance companies. When third-party IME scheduling companies send letters to insurers confirming examination arrangements while only carbon-copying claimants, the correspondence fails to satisfy regulatory standards regardless of whether claimants actually learned about examination dates.

Case Background

Central Radiology Services, P.C. submitted no-fault claims to MVAIC for diagnostic imaging services. MVAIC retained Medical Consultants Network (MCN), a third-party IME scheduling vendor, to arrange Independent Medical Examinations of the assignor. MCN sent letters to MVAIC—not to the assignor—stating that MCN was confirming MVAIC’s request for examinations on specified dates. MCN averred through affidavit that it sent carbon copies of these insurer-directed confirmation letters to the assignor. MVAIC subsequently denied Central Radiology’s claims based on the assignor’s failure to appear for the IMEs. Central Radiology challenged the denials, arguing that the letters MCN sent were not proper IME scheduling notices because they were addressed to MVAIC rather than the claimant.

At the trial level, the court initially granted MVAIC’s summary judgment motion based on the IME no-show defense. During oral argument, however, the court granted MVAIC leave to submit supplemental affidavit materials addressing the mailing issue. MVAIC provided additional documentation attempting to establish proper notice, and the court entered judgment in MVAIC’s favor. Central Radiology appealed, and the Appellate Term reversed.

Jason Tenenbaum’s Analysis

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 50887(U)(App. Term 2d Dept. 2010)

“During oral argument, the Civil Court granted defendant leave to submit a supplemental affidavit with respect to the mailing of defendant’s denial of claim form. By order entered April 1, 2009, the court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion.

This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 ). Defendant did not send IME scheduling letters to plaintiff’s assignor. Rather, defendant utilized a third party, Medical Consultants Network (MCN), to schedule IMEs on behalf of defendant. The letters upon which defendant relies were sent by MCN and addressed to defendant, not plaintiff’s assignor, and stated that the purpose of the letters was to “confirm” that defendant had requested examinations of plaintiff’s assignor on specified dates. MCN’s customer service representative averred that MCN had sent a “carbon copy” of this letter to plaintiff’s assignor. Contrary to defendant’s contention, such letters were not proper requests for verification which tolled defendant’s time to pay or deny plaintiff’s claim (Insurance Department Regulation § 65-3.8).”

Mistakes happen. We are all guilty of them. Clearly, the wrong letters were placed in the MSJ, Defendant accidentally won and now the defendant is being called on it. I would have settled this during the CAMP conference, paid the settlement myself and told the client: “sorry”.

Legal Significance

The Appellate Term’s decision establishes that form and substance both matter in IME scheduling. Letters addressed to insurers confirming examination arrangements, even when carbon-copied to claimants, do not constitute proper IME scheduling notices under Insurance Department Regulation Section 65-3.8. The regulation’s requirements serve notice functions: claimants must understand they are being directly instructed to attend examinations, not merely informed that their insurers have requested medical evaluations. Confirmation letters to insurers describing examination arrangements in third-person language fail to provide the direct, unambiguous notice that regulations demand.

The decision also addresses whether carriers can cure defective IME notices through supplemental submissions during litigation. The trial court’s grant of leave to submit additional affidavit materials during oral argument suggests some flexibility for addressing evidentiary gaps, but the Appellate Term’s reversal establishes limits on this practice. Even with leave to supplement the record, MVAIC could not transform insurer-directed confirmation letters into proper claimant notices. The defect was substantive, not merely evidentiary—the letters themselves lacked the required characteristics regardless of what additional proof MVAIC might offer about their mailing.

This holding protects claimants from technical traps while ensuring insurers cannot rely on sloppy administration to toll payment deadlines. Many insurers outsource IME scheduling to third-party vendors to reduce administrative burdens and leverage vendors’ relationships with examining physicians. However, this delegation does not excuse compliance failures. Insurers remain ultimately responsible for ensuring their vendors follow regulatory requirements, and deficiencies in vendor performance translate to loss of tolling rights even if insurers acted in good faith reliance on vendor representations.

The practical effect extends beyond individual case outcomes. Insurance companies now face incentives to audit third-party vendor practices, implement quality control measures ensuring proper letter formatting, and potentially contractually allocate risk of vendor errors. Vendors themselves must recognize that cost-cutting measures like standardized confirmation-to-insurer letters carbon-copied to claimants will not suffice; they must generate claimant-directed notices meeting regulatory standards.

Practical Implications for Providers and Insurers

For healthcare providers defending against IME no-show denials, this decision provides a blueprint for challenging insurer notice procedures. Providers should demand production of actual IME scheduling letters during discovery, carefully reviewing whether correspondence was addressed to claimants or merely copied to them from insurer-directed communications. Letters describing IMEs in confirmatory language rather than directive terms, or letters that speak to insurers as the primary audience, may fail regulatory requirements even if claimants ultimately received copies. Providers should also investigate whether insurers used third-party scheduling vendors, as vendor-generated correspondence appears particularly vulnerable to these defects.

When IME scheduling deficiencies emerge, providers should file summary judgment motions affirmatively seeking declarations that IME no-show defenses are invalid due to inadequate notice. Rather than waiting for insurers to move for summary judgment and defending reactively, providers who identify notice defects can seize the offensive and potentially recover without needing to address other issues in the case. This approach also creates settlement leverage by demonstrating that the provider has identified fatal flaws in the insurer’s defense.

For insurance carriers and their third-party scheduling vendors, the decision mandates strict compliance with IME notice formatting requirements. Vendors cannot simply send confirmation letters to insurers while carbon-copying claimants; they must generate separate, claimant-directed correspondence that clearly instructs recipients to attend examinations at specified times and locations. Form letters should be drafted in second person (“You are scheduled to attend…”) rather than third person (“The claimant has been scheduled…”), and letters should be addressed to claimants as primary recipients rather than insurers.

Carriers should implement quality assurance protocols including: periodic audits of vendor-generated IME scheduling letters; training for vendor personnel on regulatory requirements; contractual provisions requiring vendors to indemnify carriers for losses resulting from improper notices; and backup verification procedures ensuring claimants receive proper notification before carriers rely on IME no-shows to deny claims. When defects emerge during litigation, carriers should recognize that supplemental submissions cannot cure substantive notice failures and should evaluate settlement rather than pursuing defenses built on defective foundations.

Related Articles

• Understanding IME no-show defenses and their sufficiency requirements
• When IME scheduling letters fail to meet legal standards
• How improper IME notification can undermine insurance defenses
• Requirements for proving assignor representation in IME cases
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2010 decision, Insurance Department Regulation § 65-3.8 governing IME scheduling requirements and verification procedures may have been amended or superseded. Additionally, procedural rules regarding supplemental affidavits and summary judgment practice under CPLR 5501 may have evolved. Practitioners should verify current regulatory provisions and court rules when addressing IME scheduling deficiencies and tolling requirements.