NF2 v. NF3 v. no attempt to find the Assignor

In no-fault insurance litigation, discrepancies between different claim forms can create significant procedural complications. When a healthcare provider’s assignment of benefits form lists one address while the patient’s NF-3 form shows another, the question arises: which address should the insurance carrier use when mailing examination under oath (EUO) scheduling letters? This seemingly simple question has profound implications for whether notice is deemed proper and whether a carrier can successfully assert an EUO no-show defense.

The New York statutory framework for no-fault insurance requires carriers to follow specific procedures when requesting EUOs. Proper mailing of the scheduling letter is a prerequisite to enforcing the EUO requirement, and failure to mail to the correct address can invalidate an otherwise valid no-show defense. The Appellate Term’s decision in AB Quality Health Supply Corp. v Nationwide Ins. addresses this exact scenario and provides critical guidance for practitioners.

Understanding the interplay between the NF-2 form (completed by the healthcare provider) and the NF-3 form (billing submission) is essential for both providers defending against EUO no-show denials and insurers seeking to uphold such defenses.

Case Background

In AB Quality Health Supply Corp. v Nationwide Ins., the insurance carrier mailed EUO scheduling letters to the assignor using the address that appeared on the NF-3 forms submitted by the provider. However, this address differed from the address listed on the assignment of benefits form. The Civil Court initially found a triable issue of fact regarding whether the letters were properly mailed, reasoning that the address discrepancy raised questions about proper notice.

On appeal, the Appellate Term reversed, holding that the carrier established prima facie entitlement to summary judgment by demonstrating that it mailed the EUO scheduling letters to the address contained on the NF-3 forms provided by the plaintiff provider itself.

Jason Tenenbaum’s Analysis

AB Quality Health Supply Corp. v Nationwide Ins., 2022 NY Slip Op 50299(U)(App. Term 2d Dept. 2022)

“The Civil Court held that there is an issue of fact as to whether the EUO scheduling letters were properly mailed to plaintiff’s assignor. While the address on the scheduling letters to the assignor matched the address on the NF-3 forms plaintiff had provided to defendant, it did not match the address set forth on the assignment of benefits form.”

” Moreover, we find, contrary to the determination of the Civil Court, that, since the address to which defendant mailed the EUO scheduling letters to the assignor matched the address contained on the NF-3 forms plaintiff provided to defendant, defendant established, prima facie, that the letters had been properly mailed to plaintiff’s assignor”

To beat this motion, Assignor would have had to provide an affidavit that his/her address was found on NF-2 (s)he signed and the NF-3 address had no basis in reality. And even then, if the notice was mailed to the PI attorney, the assignor may lose on agency theory.

Now let me share some reality. With an attorney of 20% and a standard NF bill (no retainer), I am not going out of my way to disrupt Defendant’s summary judgment motion. At $450-$650 per hour, the assignor will be located and will sign the appropriate affidavit if the facts fit it.

Legal Significance

This decision establishes that when multiple addresses appear in different claim forms, the insurance carrier may rely on the address contained in the NF-3 billing submission to establish prima facie proof of proper mailing. The court’s reasoning rests on the principle that providers cannot benefit from address discrepancies that they themselves created through their own submissions.

The decision also addresses the burden-shifting framework in EUO no-show cases. Once the carrier demonstrates mailing to an address provided by the plaintiff on official claim forms, the burden shifts to the assignor to prove that the address was incorrect and that their actual address appeared on the NF-2 form. This creates an evidentiary challenge for providers, as they must produce an affidavit from the assignor explaining the discrepancy.

Furthermore, the court’s reference to agency theory highlights an additional hurdle for providers. Even if the assignor’s actual address differed from the NF-3 address, if the EUO scheduling letter was also sent to the assignor’s personal injury attorney, the carrier may still prevail under principles of agency, as the attorney may be deemed to have received notice on behalf of the client.

Practical Implications

For healthcare providers, this case underscores the importance of ensuring address consistency across all claim forms. Discrepancies between the NF-2 and NF-3 can fatally undermine defenses to EUO no-show denials. Providers should implement quality control procedures to verify that patient addresses are uniform on all submissions.

For insurance carriers, this decision provides a roadmap for establishing proper mailing when address discrepancies exist. By demonstrating that the carrier used the address the provider itself supplied on the NF-3 form, insurers can establish their prima facie case and shift the burden to the plaintiff.

Jason Tenenbaum’s practical observation about the economics of these cases is particularly astute: with attorney fees of only 20% on standard no-fault bills, the cost-benefit analysis often does not justify extensive efforts to locate assignors and obtain affidavits to defeat summary judgment motions. This economic reality shapes litigation strategy in ways that courts may not fully appreciate.

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