There is no safety valve for a late follow-up

The “safety valve” in this post refers to a specific regulation, not a general power to excuse missed deadlines. In Acupuncture Healthcare Plaza I v Allstate Insurance Co., decided July 21, 2017, the insurer established timely mailing of an initial EUO scheduling letter but showed that the follow-up was late. The Appellate Term held that section 65-3.8(l) did not save its later denial.

Historical note: The decision discussed here was issued July 21, 2017, although this post appeared in January 2018. Its holding concerns the late EUO follow-up and section 65-3.8(l). Compare the fact-specific First Department result in Atlantic Radiology (2018); neither opinion creates a universal grace period.

Last reviewed: September 2026.

The opinion’s year is 2017. January 2018 is the publication date of this archive note. Keeping those dates distinct matters when comparing the decision with the Atlantic Radiology ruling issued just before Jason wrote his comment.

The motions and the result

Allstate sought dismissal because the provider’s assignor had not appeared for scheduled examinations under oath. The provider cross-moved for summary judgment. Civil Court granted the insurer’s motion and denied the provider’s.

The Appellate Term reversed. It denied the insurer’s motion, granted the provider’s cross-motion and sent the matter back for the calculation of statutory interest and assessment of attorney’s fees.

Unlike decisions that merely leave a receipt question for trial, this decision did give the provider summary judgment. The court found the insurer’s offered EUO defense precluded by its untimely denial and found that the provider had established its own initial case. Both parts of that reasoning belong in a description of the result.

What section 65-3.8(l) says

In the current DFS text of Regulation 68, section 65-3.8(l) provides for reducing the insurer’s 30-calendar-day period to account for specified deviations. It expressly excepts section 65-3.6, the follow-up provision.

Allstate argued that the provision protected it despite its late follow-up EUO letter. The court rejected that argument because of the stated exception. Its eventual NF-10 denial was untimely, and it could not rely on the proffered defense.

The opinion does not give a universal number of days that every late EUO follow-up may miss. It does not announce that every late letter automatically creates liability on every bill without proof by the provider. The result rests on the timing shown and the motions presented in that case.

Why Atlantic Radiology needs a separate reading

In Atlantic Radiology Imaging v Travelers, decided January 18, 2018, the Appellate Term, First Department, affirmed dismissal of claims as premature. The provider had undisputedly failed to fully answer verification requests. Even accepting its speculative assertion that the follow-up was two days late, the court held that the toll was not lost in the circumstances presented.

That is a reason for caution with this post’s categorical historical title. The two opinions arose in different Appellate Term departments and on different records: one addressed EUO nonappearance and a late follow-up; the other addressed outstanding verification and an asserted two-day delay.

Atlantic Radiology did not amend the regulation to give every insurer two extra days. Acupuncture Healthcare Plaza did not decide Atlantic Radiology’s record. The comparison supports careful attention to jurisdiction, the type of verification, the proof of the dates and the particular defense.

Do not collapse section 65-3.5(p) into section 65-3.8(l)

Section 65-3.5(p) states that specified technical or immaterial defects, including failure to meet a prescribed timeframe, do not negate the applicant’s obligation to comply with a verification request or notice. That language concerns the applicant’s obligation. It should not simply be equated with a ruling that every late request preserves every insurer defense.

The Lida’s Medical Supply note follows a later case in which the court declined to consider the insurer’s section 65-3.5(p) argument because it was first raised on appeal. Lida’s did not resolve the provision’s reach on the merits.

That preservation issue is useful here. A party relying on a regulatory exception needs to identify the provision and establish the facts supporting it in the proper court. Quoting a broad sentence from the regulation for the first time after losing below may not obtain a merits ruling.

A later distinction: IME notices before a claim

In Nationwide General v Gaines, decided April 1, 2025, the Appellate Division, First Department, addressed properly noticed IMEs scheduled before receipt of the claims. It held that the cited claim-verification notification requirements did not apply on that record and granted the insurers declaratory relief after proof of nonappearance.

Gaines involved IMEs and pre-claim scheduling, not the late EUO follow-up addressed in this post. It illustrates why the claim-receipt date and type of examination belong in the analysis before a historical timing rule is applied.

A file review that keeps the issues distinct

Separate the date the claim was received, the first scheduling notice, the scheduled examination, any nonappearance and the follow-up notice. Preserve the notices and proof of mailing; do not infer transmission solely from a letter’s printed date.

Identify whether the examination is an IME or an EUO. The regulation contains requirements specific to medical examinations as well as requirements applicable to both. Likewise, a request for documents should not be treated as an examination simply because both are forms of verification.

Then examine the denial and the ground on which it rests. The claim-handling record, the relevant department’s decisions and the party’s burden on its own motion all matter. This historical case is useful because it names the provision that failed to protect Allstate. It is not a substitute for that claim-specific analysis.

Jason’s original commentary

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

I think I failed to specifically comment on this case. In light of Atlantic Radiology, we now have a difference of opinion between the courts.

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.
• Island Life: proof at a limited verification trial.
• The 2009 Infinity appeal: from pending issue to decision.
• 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.