Triable issue of fact as to non-appearance?

Understanding EUO and IME Non-Appearance Issues in New York No-Fault Insurance

Two recent decisions from the Appellate Term, Second Department, provide important guidance about when healthcare providers can successfully defend against insurance carrier claims of non-appearance at Examinations Under Oath (EUOs) and Independent Medical Examinations (IMEs). The Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. and Alas Lifespan Wellness, Pt, P.C. v Citywide Auto Leasing, Inc. cases illustrate the fine line between acceptable and insufficient evidence of attempted compliance.

Island Life Chiropractic: When Provider Affidavits Create Triable Issues

Case Facts and Procedural History

In Island Life Chiropractic, the insurance carrier moved for summary judgment based on the provider’s alleged failure to appear for scheduled EUOs. However, the provider’s owner submitted an affidavit stating that he had called the carrier to reschedule each EUO, left messages for the carrier’s investigator, but received no response from the carrier.

The court found this affidavit sufficient to create a triable issue of fact, noting that the insurance carrier’s response was inadequate. As the court explained: “In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that plaintiff’s owner’s affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact.”

Evidentiary Standards

The Island Life decision establishes important principles about what evidence can successfully counter no-fault insurance carriers’ non-appearance claims:

• Personal knowledge required: Affidavits must be based on personal knowledge of specific facts
• Specific details matter: Vague assertions are insufficient, but specific claims about calls made can create factual disputes
• Carrier response burden: Carriers must provide substantive responses with personal knowledge, not just attorney affirmations
• Reasonableness standard: Courts evaluate whether the provider’s alleged efforts were reasonable under the circumstances

Alas Lifespan Wellness: When Provider Efforts Fall Short

Insufficient Last-Minute Efforts

In stark contrast to Island Life, the Alas Lifespan Wellness case demonstrates when provider efforts to reschedule examinations are legally insufficient. The court held: “Plaintiff failed to raise an issue of fact in opposition to defendant’s motion, as a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled.”

Timing and Notice Requirements

The Alas Lifespan decision emphasizes several critical factors in IME and EUO scheduling:

• Advance notice: Last-minute requests to reschedule are generally insufficient
• Mutual agreement: Unilateral decisions to reschedule don’t constitute proper compliance
• Reasonable procedures: Providers must follow reasonable notice and scheduling protocols
• Good faith efforts: Courts expect genuine attempts at accommodation rather than tactical delays

Legal Framework: EUO and IME Requirements

Regulatory Foundation

Under New York’s no-fault insurance system, carriers have significant rights to require provider cooperation with examinations and investigations. These requirements serve important functions:

• Verifying the legitimacy of submitted claims
• Investigating potential fraud or abuse
• Ensuring appropriate medical necessity
• Protecting the integrity of the no-fault system

However, providers retain rights to reasonable accommodation and proper notice of examination requirements.

Balancing Provider and Carrier Rights

These decisions illustrate how courts balance provider and carrier rights in no-fault insurance disputes:

• Provider obligations: Good faith cooperation with reasonable examination requests
• Carrier obligations: Reasonable notice, appropriate scheduling, and response to provider communications
• Court oversight: Factual determination of whether both parties acted reasonably
• Practical considerations: Recognition of scheduling challenges and communication difficulties

Strategic Implications for Healthcare Providers

Documentation Best Practices

The contrasting outcomes in these cases highlight essential documentation practices:

• Detailed call logs: Maintain specific records of all communications with carriers
• Phone records: Consider obtaining phone records to substantiate claims of attempted contact
• Written follow-up: Confirm verbal communications in writing when possible
• Reasonable timing: Provide adequate advance notice of scheduling conflicts

Potential Consequences of Poor Documentation

As noted in the Island Life commentary, inadequate documentation of compliance efforts can lead to serious consequences. When providers cannot demonstrate good faith efforts to comply with examination requirements, they risk not only claim denials but potential fraud investigations. The commentary suggests that in extreme cases, poor documentation might even lead to wire fraud, perjury, or civil RICO allegations.

The Thorny Area of Reasonable Cancellation

Need for Bright-Line Rules

These decisions highlight what practitioners describe as a “thorny area of law” regarding what constitutes reasonable cancellation or rescheduling. The legal system benefits from bright-line rules that provide predictability and reduce litigation, but the fact-specific nature of scheduling disputes makes such rules difficult to establish.

The uncertainty created by case-by-case analysis can make it difficult for practitioners to provide reliable guidance to clients about the risks and benefits of various courses of action.

Article 75 and Appeal Considerations

The unpredictability of outcomes in this area affects strategic decisions about Article 75 proceedings and civil appeals. When legal outcomes depend heavily on fact-specific determinations rather than clear legal principles, it becomes more difficult to assess the likelihood of success in appellate proceedings.

Frequently Asked Questions About EUO and IME Non-Appearance

What should I do if I need to reschedule an EUO or IME?

Contact the insurance carrier as soon as possible with detailed explanation of the scheduling conflict. Provide written notice when possible, maintain records of all communications, and seek mutual agreement on alternative dates rather than making unilateral decisions.

How much advance notice is required to reschedule examinations?

While specific requirements vary, same-day requests are generally insufficient as demonstrated in Alas Lifespan. Providers should provide as much advance notice as possible and document legitimate reasons for rescheduling requests.

What evidence do I need to defend against non-appearance claims?

Specific, detailed affidavits based on personal knowledge are essential. Include information about when calls were made, who was contacted, what was discussed, and any responses received. Phone records can provide additional support.

Can insurance carriers ignore my rescheduling requests?

Carriers have an obligation to respond reasonably to legitimate rescheduling requests. However, providers cannot assume that silence constitutes agreement to reschedule, and must continue efforts to resolve scheduling conflicts.

What are the consequences of failing to appear for scheduled examinations?

Consequences can include claim denials, termination of no-fault benefits, and in extreme cases, fraud investigations. The financial impact on healthcare practices can be severe, making compliance and proper documentation essential.

Best Practices for Compliance

Proactive Scheduling Management

Healthcare providers should develop systematic approaches to EUO and IME scheduling:

• Calendar integration: Ensure examination dates are properly calendared and monitored
• Advance planning: Identify potential conflicts as early as possible
• Communication protocols: Establish clear procedures for carrier communications
• Documentation systems: Maintain detailed records of all examination-related communications

When Disputes Arise

When examination scheduling disputes occur, providers should:

• Immediately document all relevant facts and communications
• Gather supporting evidence such as phone records
• Consult with experienced no-fault insurance counsel
• Prepare detailed affidavits addressing all aspects of the dispute

Contact Experienced No-Fault Insurance Attorneys

EUO and IME scheduling disputes can significantly impact your healthcare practice’s financial stability and relationship with insurance carriers. Understanding when your efforts to reschedule examinations will be legally sufficient requires careful analysis of case law and strategic documentation practices.

Whether you’re facing non-appearance claims or need guidance on examination compliance procedures, our experienced legal team understands the nuances of New York no-fault insurance law. We help healthcare providers navigate these complex requirements while protecting their practices from unfair claim denials.

Don’t let examination scheduling disputes jeopardize your practice’s financial health. Professional legal guidance can help you develop compliant procedures and defend against unfair carrier practices.

Call 516-750-0595 for a free consultation with our New York no-fault insurance attorneys.