Why Trust This Analysis
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Key Takeaways
- An insurer cannot obtain summary judgment on an IME no-show defense where the initial IME was not scheduled to be held within 30 calendar days after receipt of the claims (11 NYCRR 65-3.5).
- The no-show itself is not enough — the timeliness of the underlying IME scheduling is part of the carrier’s prima facie burden.
- A “post-claim” IME scheduled outside the regulatory window will not support a denial based on failure to appear.
- Providers opposing these motions should audit the scheduling chronology before ever reaching the merits of the no-show proof.
Understanding IME Scheduling Requirements in No-Fault Cases
Independent Medical Examinations (IMEs) are a critical component of New York No-Fault Insurance Law, allowing insurance companies to evaluate the medical necessity and extent of claimed injuries. However, insurers must follow strict procedural requirements when scheduling these examinations, including specific timing mandates that can significantly impact their ability to deny claims.
When an insurance company fails to properly schedule an IME within the regulatory timeframe, they may lose important defenses in subsequent litigation. The scheduling requirements under New York’s no-fault regulations are designed to ensure prompt resolution of claims while protecting the rights of injured parties. Understanding these timing requirements is essential for both healthcare providers and patients in the no-fault system.
The procedural missteps in IME scheduling can have far-reaching consequences for insurance companies seeking to defend against provider claims, as demonstrated in recent appellate decisions addressing these regulatory violations.
The Decision
Jason Tenenbaum’s Analysis:
Total Chiropractic, P.C. v Hereford Ins. Co., 2020 NY Slip Op 51362(U)(App. Term 2d Dept. 2020)
“However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 ).”
Post claim action.
The Regulatory Framework
The no-fault regulation, 11 NYCRR 65-3.5, governs how carriers must verify claims after receiving them. When an insurer wants additional verification in the form of a medical examination, the regulation requires that the examination be scheduled to be held within 30 calendar days of the carrier’s receipt of the prescribed verification forms or claims. This is not a technicality grafted onto the system by the courts — it is built into the verification timetable that keeps the no-fault system moving.
The Appellate Term has repeatedly treated this scheduling deadline as a condition of the IME no-show defense itself. An assignor’s failure to appear for an IME is a failure to comply with a condition precedent to coverage, but only if the IME was requested in conformity with the regulations. When the first examination is calendared beyond the 30-day window, the request is regulatorily defective, and the resulting no-shows — no matter how well documented with mailing and office-procedure affidavits — will not carry a summary judgment motion.
That is exactly what happened in Total Chiropractic. The carrier presumably had its no-show proof lined up, but the threshold chronology sank the defense: the initial IME was simply scheduled too late.
Why This Matters for Carriers and Providers
For insurance carriers, the lesson is one of claims-handling discipline. The IME vendor letter has to go out fast enough that the examination itself — not just the letter — falls within 30 calendar days of receipt of the claim. A carrier that waits for several bills to accumulate before sending the assignor to an examination risks converting a strong no-show defense into a nullity. The defense fails at the threshold, before the court ever evaluates the appearance evidence.
For medical providers and their collection counsel, the decision supplies a first-line opposition argument that requires no affidavit at all. The scheduling chronology appears on the face of the carrier’s own motion papers: the date each claim was received and the date of the first scheduled examination. If the math does not work, the motion does not work. This is the same structural point that runs through the IME no-show case law in New York no-fault litigation — the defense is powerful, but it is built on a foundation of regulatory compliance that the carrier must itself prove.
For injured people, the rule reflects the broader bargain of the no-fault system: prompt benefits in exchange for cooperation. The carrier’s right to demand cooperation, including attendance at examinations, is conditioned on the carrier acting promptly on its end.
Practice Pointers
- Carriers: Calendar the 30-day deadline from receipt of each claim, and confirm the examination date — not merely the notice date — falls inside it. Build the receipt date and scheduling chronology into the motion affidavits.
- Providers: Before drafting opposition on the merits, chart every claim’s receipt date against the first IME date. A post-claim IME scheduled outside the window defeats the motion as to those claims.
- Both sides: Remember that the timeliness defect goes to the carrier’s prima facie case. A court can reach it even where the provider’s opposition papers are thin, and proof of mailing of the IME letters — the issue litigated in cases like the mailing and proof-of-service line of decisions — never comes into play.
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 a medical examination as additional verification, the initial IME must be scheduled to be held within 30 calendar days after the insurer’s receipt of the claims. Missing that window undermines a later denial based on the failure to appear.
Can an insurer deny a no-fault claim if the patient misses an IME that was scheduled late?
Not on summary judgment, according to Total Chiropractic v Hereford. If the initial IME was not scheduled to be held within the 30-day regulatory window, the carrier has not shown that the examination was requested in accordance with the regulations, and the no-show defense fails regardless of how well the missed appearances are documented.
What should a provider check first when opposing an IME no-show motion?
The chronology. Compare the date the carrier received each claim with the date of the first scheduled examination. If the first IME falls more than 30 calendar days after receipt, that defect alone defeats the motion as to those claims — no medical or mailing rebuttal is needed.
Related Resources
- IME No-Shows in New York No-Fault Insurance Cases — the firm’s cluster hub on IME no-show law
- The firm’s Legal Encyclopedia
- No-Fault Defense practice page
- It’s the 30-day rule
- IME no-show substantiated again
- IME no show run amuck
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Dec 8, 2013Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
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 a medical examination as additional verification, the initial IME must be scheduled to be held within 30 calendar days after the insurer's receipt of the claims. Missing that window undermines a later denial based on the failure to appear.
Can an insurer deny a no-fault claim if the patient misses an IME that was scheduled late?
Not on summary judgment, according to *Total Chiropractic v Hereford*. If the initial IME was not scheduled to be held within the 30-day regulatory window, the carrier has not shown that the examination was requested in accordance with the regulations, and the no-show defense fails regardless of how well the missed appearances are documented.
What should a provider check first when opposing an IME no-show motion?
The chronology. Compare the date the carrier received each claim with the date of the first scheduled examination. If the first IME falls more than 30 calendar days after receipt, that defect alone defeats the motion as to those claims — no medical or mailing rebuttal is needed.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a ime issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
