The 30-Day IME Scheduling Rule Under 11 NYCRR 65-3.5: Success Rehab v Hereford

Understanding the 30-Day IME Scheduling Rule in New York No-Fault Cases

In New York no-fault insurance law, timing is everything when it comes to Independent Medical Examinations (IMEs). Insurance companies frequently use IMEs as a defense mechanism to deny claims, but they must follow strict procedural requirements. One critical rule that often trips up insurers is the 30-day scheduling requirement — a deadline that, when missed, can completely undermine their ability to deny claims based on a patient’s failure to appear.

Key Takeaways

• Under 11 NYCRR 65-3.5, an IME must be scheduled to be held within 30 calendar days of the insurer’s receipt of the claim it is meant to verify.
• In Success Rehab v Hereford, the carrier received 9 of 12 claims by June 19, 2015 but scheduled the first IME for August 3, 2015 — too late, and summary judgment was denied as to those claims.
• The clock runs from receipt of each bill, not from the NF-2 or the carrier’s internal referral.
• A late-scheduled IME forfeits the no-show defense for the late claims even if the assignor genuinely failed to appear.

This regulatory requirement exists to prevent insurance companies from using IMEs as delaying tactics. By mandating that examinations be scheduled promptly after receiving claims, the law ensures that legitimate medical providers can receive timely payment for services rendered to accident victims.

The Decision

Jason Tenenbaum’s Analysis:

Success Rehab, PT, P.C. v Hereford Ins. Co., 2019 NY Slip Op 52031(U) (App. Term 2d Dept. 2019)

“Contrary to defendant’s contention, defendant did not establish its entitlement to summary judgment. Defendant acknowledged that it had received 9 of the 12 claims at issue between May 13, 2015 and June 19, 2015 and that plaintiff’s assignor’s first IME was scheduled for August 3, 2015. As that IME had not been scheduled to be held within 30 calendar days after defendant had received those claims, defendant did not demonstrate its entitlement to summary judgment dismissing so much of the complaint as sought to recover upon those claims based upon the assignor’s failure to appear for IMEs (see 11 NYCRR 65-3.5 “

The Legal Framework

The no-fault claims regulation builds verification on a strict timetable. Section 65-3.5 governs additional verification of claims, and its IME provision requires that when a carrier demands a medical examination, the examination be scheduled to be held within 30 calendar days of receipt of the prescribed verification forms — in practice, the bills the IME is meant to verify. The Appellate Term has enforced this clock literally: the question is not when the IME letter was mailed, but when the examination itself was set to occur.

The consequence of a blown deadline is forfeiture of the defense as to the affected claims. An assignor’s failure to appear for IMEs is normally a breach of a condition precedent to coverage and a complete defense — but only when the IMEs were duly scheduled. An IME scheduled outside the regulatory window is not duly scheduled, so the no-show never ripens into a breach. As Success Rehab shows, the analysis is claim-by-claim: the carrier’s motion failed as to the nine claims received before the scheduling window closed, because the August 3 IME date fell more than 30 days after their receipt.

This is the same architecture that governs the rest of the verification system — deadlines measured from receipt, with preclusion or forfeiture as the sanction. For the parallel rules on delay letters and follow-up verification, see the firm’s hub on verification and the 120-day rule.

Why This Matters for Carriers and Providers

For carriers, the operational lesson is that IME scheduling must be wired to bill receipt, not to the file review cycle. Claims arrive in waves; an IME calendared when the file is referred to a vendor may already be untimely for the earliest bills. Carriers that batch IME referrals monthly are structurally exposed to Success Rehab arguments on the front end of every treatment course.

For medical providers and their collection counsel, the case supplies a discovery roadmap. Match each bill’s receipt date (from the carrier’s own NF-10 or claim log) against the first scheduled IME date. Any bill received more than 30 days before the first scheduled examination is outside the no-show defense, no matter how well the carrier proves the actual non-appearance or the mailing of the notices. Timeliness defeats the defense before mailing or appearance issues are ever reached, which makes it the first box to check alongside IME notification problems.

Practice Pointers

• Carriers: calendar the IME from the date each bill hits the mailroom, and document receipt dates precisely — your own acknowledgment dates will be Exhibit A.
• Carriers: when bills trickle in, consider scheduling successive IMEs so later-received claims stay inside their own 30-day windows.
• Providers: plead and argue untimely scheduling claim-by-claim; partial denial of the carrier’s motion (as in Success Rehab) still keeps most of the case alive.
• Both sides: remember the distinct rule that the clock runs from the bill — it is the bill, not the NF-2, that triggers the scheduling obligation.

Frequently Asked Questions

How long does a no-fault insurer have to schedule an IME in New York?

Under 11 NYCRR 65-3.5, when an insurer requires an independent medical examination as verification, the IME must be scheduled to be held within 30 calendar days after the insurer receives the claim forms (the bills) it seeks to verify.

What happens if the IME is scheduled more than 30 days after the claims were received?

The insurer loses the IME no-show defense as to those claims. In Success Rehab v Hereford, the first IME was scheduled beyond the 30-day window for nine of twelve claims, and the Appellate Term denied summary judgment as to those claims even though the assignor failed to appear.

Does the 30-day IME clock run from the NF-2 application or from the bills?

From receipt of the claims — the bills themselves. The application for benefits does not start the IME scheduling clock for a given claim; each bill’s receipt date controls the window for the examination meant to verify it.

Related Resources

• IME no-shows in New York no-fault insurance cases — the firm’s cluster hub on the IME no-show defense
• 30-days to hold the IME from the receipt of the billing
• Post claim IME
• It is the bill, not the NF-2
• The firm’s Legal Encyclopedia
• No-fault defense practice