Mutual rescheduling and its risks

The thirty-day rule governing insurance disclaimers in New York no-fault law serves as a critical deadline that insurers must meet to preserve their defenses. Under 11 NYCRR 65-3.8, denials of claims must be issued within thirty days of receipt, with limited exceptions for scheduling examinations under oath. When insurers schedule multiple EUO dates and claim mutual rescheduling occurred, the burden falls on them to prove those assertions—and failure to do so can render their disclaimers untimely and ineffective.

Mutual rescheduling jurisprudence has developed an important principle: when an EUO is rescheduled by agreement before the scheduled date, that initial date does not constitute a “failure to appear” for purposes of calculating disclaimer timeliness. However, this protective doctrine can become a double-edged sword when insurers cannot substantiate their rescheduling claims. The case of Clear Water Psychological Services, P.C. v Mid-Century Insurance Co. illustrates how evidentiary failures regarding mutual rescheduling can transform what insurers believed was a valid disclaimer into a premature and ineffective denial.

Case Background

Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co., 2022 NY Slip Op 50621(U)(App. Term 2d Dept. 2022)

In this case, Mid-Century Insurance Company scheduled three EUO dates and later denied claims based on the assignor’s failure to appear. The provider challenged the timeliness of the denial, and the court’s analysis revealed critical evidentiary deficiencies in the insurer’s proof of mutual rescheduling.

Jason Tenenbaum’s Analysis

In its motion, defendant set forth three scheduled EUO dates: June 8, 2018, June 25, 2018 and July 10, 2018. Defendant’s motion papers assert that the June 8, 2018 EUO was mutually rescheduled, which, if such rescheduling “occur prior to the date of the scheduled EUO, does not constitute a failure to appear” (Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140, 2013 NY Slip Op 52005, *1 ). However, defendant failed to demonstrate that fact as a matter of law (cf. Sovereign Acupuncture, P.C. v American Commerce Ins. Co., 56 Misc 3d 132, 2017 NY Slip Op 50922 ). Indeed, defendant’s denial of claim forms list all three dates as failures to appear. As defendant denied the claims on July 27, 2018, more than 30 days after June 25, 2018, the second scheduled EUO date (see 11 NYCRR 65-3.8 ), and as defendant did not establish that the first EUO had been mutually rescheduled, an issue of fact remains as to whether defendant’s denials were timely and, thus, whether defendant is precluded from interposing its defense that plaintiff’s assignor failed to appear for duly scheduled EUOs

I never that this whole mutual re-scheduling line of cases could be used as a sword to deem disclaimers untimely. So interesting.

Legal Significance

This decision represents a significant development in no-fault disclaimer timeliness jurisprudence. While the mutual rescheduling doctrine was initially developed to protect insurers—allowing them to reschedule EUOs without treating the initial date as a failure to appear—this case demonstrates that the doctrine can work against insurers when they cannot prove rescheduling actually occurred.

The court’s analysis turned on evidentiary proof. The insurer’s own denial of claim forms contradicted its litigation position by listing all three dates as failures to appear, undermining its assertion that the June 8 date had been mutually rescheduled. This internal inconsistency created a factual question that precluded summary judgment for the insurer. The decision establishes that insurers cannot simply assert mutual rescheduling occurred; they must prove it as a matter of law with documentary evidence.

The timing implications are substantial. Under 11 NYCRR 65-3.8, insurers generally have thirty days from receipt of proper proof of claim to deny claims. If the June 8 date was not mutually rescheduled, the July 27 denial coming more than thirty days after June 25 raised the specter of untimeliness, potentially precluding the insurer from asserting its EUO no-show defense.

Practical Implications

For insurance carriers, this case provides critical lessons in documentation and internal consistency. When an EUO is mutually rescheduled, carriers must create contemporaneous records evidencing the agreement to reschedule. Simply scheduling multiple dates and later claiming one was mutually rescheduled will not suffice, particularly when denial forms contradict that assertion. Carriers should ensure that denial forms accurately reflect the procedural history and distinguish between failures to appear and mutually rescheduled dates.

For healthcare providers challenging disclaimers, this decision opens a new avenue of attack. Providers can scrutinize insurers’ scheduling histories and denial forms for inconsistencies regarding mutual rescheduling claims. When denial forms list dates as failures to appear that insurers later claim were mutually rescheduled, providers can argue these contradictions create factual issues regarding disclaimer timeliness. This transforms mutual rescheduling doctrine from a purely defensive tool into an offensive weapon for challenging untimely disclaimers.

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