The reasonably convenient EUO

Examinations under oath (EUOs) are a fundamental investigation tool in New York’s no-fault insurance system, allowing carriers to question claimants and medical providers about submitted claims. However, insurance companies cannot schedule these examinations at whatever location suits their convenience. New York regulations mandate that EUOs must be held at locations “reasonably convenient” to the person being examined, a requirement that becomes the subject of frequent litigation.

The “reasonably convenient” standard under 11 NYCRR 65-3.5 protects claimants from unreasonable burdens while allowing insurers to conduct necessary investigations. When insurance carriers fail to schedule EUOs at appropriate locations, their subsequent claim denials based on non-appearance become vulnerable to challenge. This case from the Appellate Term examines what evidence creates triable issues of fact regarding the reasonableness of EUO locations.

Understanding the evolving landscape of EUO convenience requirements is particularly important in the post-pandemic era, where virtual examinations have become commonplace. Courts must now balance traditional geographic considerations with the availability of remote technology that can eliminate travel burdens entirely.

Case Background

Arcadia Acupuncture, P.C. brought a no-fault action against Nationwide Insurance Company to recover payment for medical services. The insurer had scheduled multiple EUOs between May and June 2018, which the plaintiff allegedly failed to attend. Nationwide timely denied the claims based on these no-shows and moved for summary judgment dismissing the complaint.

The key dispute centered on whether the scheduled EUO locations satisfied the regulatory requirement of being “reasonably convenient” to the plaintiff medical provider. While Nationwide established that it properly mailed scheduling letters and timely denied claims following non-appearance, the court found factual questions remained about the convenience of the examination locations.

Jason Tenenbaum’s Analysis

Arcadia Acupuncture, P.C. v Nationwide Ins. Co., 2021 NY Slip Op 51258(U)(App. Term 2d Dept. 2021)

“With respect to the claims received by defendant between May 11, 2018 through June 22, 2018, the record demonstrates, prima facie, that the EUO scheduling letters were timely mailed ([_see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. htm) ) to plaintiff, that plaintiff failed to appear for those EUOs, and that defendant timely denied those claims on the ground that plaintiff had failed to appear.

htm), 2020 NY Slip Op 50845 ), defendant failed to establish that it is entitled to summary judgment dismissing so much the complaint as sought to recover upon the claims received between May 11, 2018 through June 22, 2018.

I have to wonder what proof is necessary for a defendant to prove that the EUO or IME is reasonably convenient? As to EUOS – in this virtual world – that should not be an issue. As to IMEs, is this based on a county by county approach?

Legal Significance

This decision places a significant burden on insurance carriers to affirmatively demonstrate that scheduled EUO locations meet the “reasonably convenient” standard, not merely to schedule examinations and deny claims when parties fail to appear. The Appellate Term’s ruling means that establishing proper mailing of scheduling letters and timely denials following non-appearance is insufficient for summary judgment if location convenience remains disputed.

The regulatory framework at 11 NYCRR 65-3.5 does not define “reasonably convenient” with mathematical precision. Courts must evaluate factors including distance from the claimant’s business or residence, availability of public transportation, the claimant’s physical condition, and whether the burden of traveling to the examination location is proportionate to the claims being investigated.

The decision also raises important questions about how virtual technology affects these analysis. If insurance companies can conduct EUOs remotely via secure video platforms, thereby eliminating all travel burdens, does that automatically satisfy the convenience requirement? Or do claimants have the right to insist on in-person examinations at convenient locations despite available technology?

Practical Implications for Attorneys and Litigants

For insurance defense counsel, this case underscores the importance of building a complete evidentiary record before moving for summary judgment on EUO no-show grounds. Carriers should document not only the scheduling and mailing process, but also the rationale for selecting specific examination locations. Evidence might include the claimant’s address, the examination location, distance calculations, and consideration of alternative nearby locations.

Medical providers and their attorneys should scrutinize EUO scheduling letters for convenience issues before simply failing to appear. If a location appears unreasonably distant or burdensome, the provider should communicate this concern to the carrier and request an alternative location. Unilateral non-appearance without objection may weaken later arguments about convenience.

The virtual EUO option presents both opportunities and challenges. For providers, requesting remote examinations can eliminate travel burdens and scheduling conflicts. For insurers, offering virtual options may help satisfy convenience requirements while also reducing costs and logistical complexity. However, both parties should be prepared to litigate whether virtual examinations adequately protect their respective interests compared to in-person proceedings.

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• Understanding CPLR 3212(a): Critical Timing Rules for Summary Judgment Motions in New York
• No-Fault regulatory amendments and their implications
• New York No-Fault Insurance Law