No Objective Basis Required for an EUO Request Under No-Fault Regulation 68

Key Takeaways

• No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO — the Appellate Term said so squarely in Metro Psychological.
• An insurer therefore does not have to prove “red flags” or articulate its reasons to make the EUO request reasonable on a no-show motion.
• Objecting to an EUO solely because the carrier gave no objective justification is generally futile in the Second Department’s Appellate Term.
• Providers who skip a noticed EUO risk a no-show denial that defeats the entire claim, since appearance is a condition precedent to coverage.

Understanding EUO Requirements: No Objective Basis Needed

Examinations Under Oath (EUOs) are a critical tool in New York No-Fault Insurance Law that allow insurance companies to question claimants under oath about their claims. One of the ongoing debates in no-fault litigation has been whether insurers must provide an objective, factual basis when requesting an EUO from a healthcare provider or injured person.

This question is particularly important because EUOs can significantly impact claim processing timelines. When providers or claimants fail to appear for scheduled EUOs, insurers often use this as grounds to deny claims. Given the stakes involved, courts have grappled with how much justification insurers must provide when demanding these examinations.

The Metro Psychological Services case provides important clarification on this issue, reinforcing that insurers have broad discretion in requesting EUOs without needing to meet specific evidentiary thresholds beforehand.

The Decision

Jason Tenenbaum’s Analysis:

Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co., 2015 NY Slip Op 50470(U)(App. Term 2d Dept. 2015)

Again, the Court states that the failure to provide an objective basis for the performance of EUOs need not be proven to deem the request reasonable.

“Contrary to the determination of the City Court, no provision of No-Fault Regulation 68 requires an insurer to set forth any objective standards for requesting an EUO”

The Legal Framework: EUOs Under Regulation 68

The EUO right comes from the mandatory personal injury protection endorsement in No-Fault Regulation 68 (11 NYCRR Part 65), which conditions coverage on the eligible injured person — or the provider standing in the injured person’s shoes as assignee — appearing for examinations under oath “as may reasonably be required.” Like the IME, the EUO is a condition precedent to coverage: a failure to appear at duly scheduled examinations, properly noticed and followed by a timely denial, defeats the claim.

The litigation battleground has been the word “reasonably.” Providers argued that an EUO demand is only reasonable if the carrier can point to objective reasons — billing anomalies, fraud indicators, inconsistencies in the claim — justifying the examination. The lower court in Metro Psychological accepted a version of that argument. The Appellate Term reversed course: the regulation contains no requirement that the insurer articulate or prove objective standards for requesting an EUO, so the absence of such proof does not render the request unreasonable.

A nuance worth flagging: the Department of Financial Services has stated, in opinion-letter guidance, that carriers should have standards for when EUOs are demanded. But as the Appellate Term’s case law — Metro Psychological and the decisions before and after it — makes clear, the carrier does not have to prove those internal standards as part of its prima facie case on a no-show motion, and a provider’s demand for that proof is not a defense.

Why This Matters for Providers, Claimants, and Carriers

For medical providers, the practical message is blunt: refusing to appear at an EUO because the carrier “gave no reason” is a losing strategy in the Second Department’s Appellate Term. The safer course is to appear, preserve objections on the record, and litigate scope or relevance disputes afterward — a claim sacrificed to a no-show denial is rarely resurrected.

For injured claimants, the same logic applies. An EUO notice should be treated like a court date. Counsel can negotiate scheduling, location, and scope, but outright nonappearance converts a payable claim into a coverage fight the claimant will likely lose.

For insurance carriers, Metro Psychological strengthens the EUO no-show defense, but it does not relieve the carrier of its other burdens: proof that the EUO letters were properly mailed, proof of nonappearance on both scheduled dates, and a denial issued within 30 days of the second no-show. Those procedural elements — not the objective-basis question — are where EUO defenses actually fail. The firm’s EUO requirements hub collects the cases on each element.

Practice Pointers

• Carriers: do not volunteer internal EUO-selection criteria in motion papers; the case law does not require it, and the Appellate Term has repeatedly said so — see also the later decisions reaffirming the rule.
• Carriers: focus the proof on mailing, nonappearance, and the timely denial — the elements that actually decide these motions.
• Providers: if you believe an EUO demand is abusive, respond in writing, request the basis, and appear anyway; preserve the objection rather than defaulting.
• Providers: calendar both scheduled EUO dates. The defense matures on the second no-show, and silence until litigation forfeits the best arguments.

Frequently Asked Questions

Does an insurance company need a reason to demand an EUO in a New York no-fault claim?

Under Appellate Term case law including Metro Psychological Services v 21st Century, no provision of Regulation 68 requires the insurer to set forth objective standards for requesting an EUO. The carrier need not prove its reasons to make the request reasonable.

What happens if a provider does not show up for a scheduled EUO?

Appearance at a duly noticed EUO is a condition precedent to no-fault coverage. After a second nonappearance and a timely denial, the carrier may defeat the entire claim — regardless of whether the underlying treatment was medically necessary.

Can a provider challenge an EUO request as unreasonable?

Yes, but not simply by pointing to the absence of an objective basis. Objections to scheduling, location, or scope should be raised in writing before the examination; courts have little sympathy for providers who simply fail to appear.

Related Resources

• Objective basis?
• Objective reasons?
• An objective standard is not necessary
• EUO requirements in New York no-fault cases — the firm’s cluster hub on examinations under oath
• Browse the firm’s Legal Encyclopedia for more no-fault doctrine and procedure
• No-Fault Defense practice — EUO strategy and no-show litigation for carriers