Convenient Locations for EUOs

E & W Acupuncture P.C. and State Farm Mut. Auto Ins. Co.

AAA Case No. 412009031147, Arbitrator Laura A. Yantsos
Amount in Dispute: $1,104.22

State Farm requested that the provider applicant appear for an examination under oath (EUO).  Pursuant to 11 NYCRR 65-1.1, an EUO must be scheduled at a “reasonably convenient time and location.”  The applicant’s medical report showed that it provided treatment for its assignor in Woodside, New York in Queens County.  The provider also maintained offices however, in Bronx and Nassau Counties.

State Farm scheduled the EUO in Great Neck, New York in Nassau County and sent three scheduling letters to the provider’s three different offices in Bronx, Queens, and Nassau.  State Farm included language in the letters specifically inviting the applicant to call and change the time or place of the EUO if it was inconvenient.  The provider applicant failed to appear for the EUO and at arbitration argued that State Farm impermissibly requested an examination under oath in a county outside the county where the applicant had its office.

Arbitrator Yantsos held that if the applicant did not in fact have offices in Bronx and Nassau, the burden was on the applicant to deny having offices in these counties.  Further, Arbitrator Yantsos placed emphasis on the fact that State Farm explicitly invited the applicant to change the time or place of the EUO for want of convenience, an option which it failed to exercise.

Finally, Arbitrator Yantsos stated that the Regulation does not require that an EUO be “venued” in the same county where the applicant maintains its residence.  It merely requires that the location be “reasonably convenient.”   It is not enough to show that an EUO is scheduled outside the county of applicant’s office where services were provided.  Finally, Arbitrator Yantsos held that, regardless of whether applicant had an office in Nassau County, the distance between Great Neck in Nassau and Woodside in Queens (about 15 miles and 25-45 minutes travel time according to Google Maps) is not “inconvenient per se.”

Award:  Denied.

This award, or lack thereof, gives us some bright line rules with regard to the scheduling of EUOs:

• The burden is on the applicant to show that a location is inconvenient.
• The burden is on the applicant to deny that it has offices in locations that the insurer believes it to.
• It will undermine an applicant’s allegation of “inconvenience” to fail to exercise an option to change time/place as offered in a scheduling letter.
• When deciding what is “reasonably convenient,” emphasis will be placed on total distance over county of residence.
• An insurer does not necessarily need to schedule an EUO in the same county where services were provided.
• Fifteen miles/25-45 minutes of travel time is not “inconvenient per se.”