David M. Gottlieb, Esq. has previously covered this issue at No-Fault Paradise, but it seems to me that it's worth some additional attention.
On June 24, 2009, the NYS Insurance Department issued an opinion letter entitled "Examinations Under Oath of Assignees". The short question/answer summary is as follows:
May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?
No. Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath."
As the Insurance Department noted, "nowhere does the regulation address whether an assignee that is a corporate entity or partnership must submit a person for examination that is specifically identified by an insurer in its examination under oath notice." The Department therefore reasoned that there is, in fact, no allowance for the insurer to request the production of a specific person at an EUO. However, the Department opined that, if the provider does produce someone for the EUO, and that person is unable to provide the information sought, "the insurer may request additional examinations of the assignee until a person is submitted for examination by the assignee who can provide the items necessary to verify the claim." (Internal quotation marks omitted).
In his post, Mr. Gottlieb asked what is presumably the most important and immediate question for practitioners: "Would EUO requests, where they demanded that a specific person appear for the EUO, be defective as a matter of law?"
I'm not sure that there's an easy answer here, but it seems to me that if an insurer requests that a specific person (presumably, a professional shareholder) appear at an EUO, and only requests the appearance of that person, the request is invalid. It would seem that it would be invalid, ab initio, for an insurer to request something that it is simply not entitled to. To the extent that a provider could choose to produce a different person in response to such a request, the provider would be under no duty to do so given the specific nature of the request. As such, non-attendance (by anyone from the provider) at such a requested EUO should not constitute a failure to provide verification or to otherwise cooperate, as the insurer had no authority to make such a request in the first place.
It therefore appears to me that requesting that a provider produce a specific person at an EUO is no more valid than an insurer requesting an EUO at all under the Old Regulations (which contained no specific provision whatsoever allowing for EUOs as a form of verification). See King's Med. Supply v. Progressive Ins., 3 Misc.3d 126(A) (App. Term, 2d Dep't, 2004), holding that "[s]ince there was no provision authorizing such a procedure, defendant's request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim."