Key Takeaway
This 2012 office-based surgery note predates Avanguard's 2016 facility-fee ruling. Read the correction before relying on its historical title.
This article is part of our ongoing fee schedule coverage, with 118 published articles analyzing fee schedule 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.
This page preserves a 2012 ruling and headline. They do not establish a current right to an office-based surgery facility fee: the Court of Appeals rejected mandatory payment of that charge in Avanguard in 2016.
Legal Update (September 2026): In Avanguard (2016), the Court of Appeals held that the statutory and regulatory framework did not mandate payment of office-based surgery facility fees; this 2012 note and its preserved headline must not be read as current facility-fee entitlement.
Last reviewed: September 2026. Original publication date retained.
The later decision changes how to read the old note
Upper East Side Surgical v State Farm, 2012 NY Slip Op 50184(U) denied the insurer summary judgment on the fee issue and required a trial concerning the amount. It did not adopt the archive’s proposed neighboring-facility comparison.
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In GEICO v Avanguard, 27 NY3d 22 (2016), professional fees had been paid; the disputed charge was the separate office-based surgery facility fee. The Court of Appeals held that the governing framework did not mandate that payment. Accreditation alone therefore cannot support the old page’s promise of a facility fee.
Separate the professional service from the facility charge before discussing reimbursement. This note does not resolve every provider’s licensing obligations or announce a current rate for either category. The historical headline and quoted proposal remain for context, with the later holding stated above them.
Historical commentary from the archive
The archive attributed the following rate proposal to the court. It was commentary, not the court’s holding; the court required a trial. It is preserved here as a historical proposal, not a current billing method:
My answer is that 68.5(b) is satisfied through finding what a nearby Article 28 facility would be compensated and pegging that amount to the compensation that would be due and owing to an accredited office based surgical center. So, a trial is probably not needed since Plaintiff would be entitled to the fee an Article 28 near its location is receiving. Another way of saying this is that the case should settle for the amount that would be paid to a nearby Article 28 facility.
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For review of a particular no-fault billing dispute, contact our office.
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.
About This Topic
Fee Schedule Issues in No-Fault Insurance
The New York no-fault fee schedule establishes the maximum reimbursement rates for medical treatment provided to injured motorists. Disputes over fee schedule calculations, coding, usual and customary charges, and the applicability of workers compensation fee schedules to no-fault claims are common. These articles analyze fee schedule regulations, court decisions on reimbursement disputes, and the practical challenges providers face in obtaining appropriate payment under the no-fault system.
118 published articles in Fee Schedule
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Dec 26, 2017Frequently Asked Questions
Common Questions About This Topic
4 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What did the court rule about Article 28 licensing and no-fault reimbursement?
The 2012 District Court denied the insurer summary judgment on the fee issue and required a trial on the amount. Its reasoning must be read alongside the later Court of Appeals decision in Avanguard.
How does this ruling affect surgical centers on Long Island and in New York City?
The old decision is not a current entitlement to an office-based surgery facility fee. Avanguard rejected mandatory payment of that separate fee under the framework it reviewed.
What is the difference between Article 28 licensing and Office-Based Surgery accreditation?
Office-based surgery accreditation and Article 28 facility status are different regulatory categories. Accreditation does not itself create a right to the separate facility fee rejected in Avanguard.
What reimbursement rate applies to non-Article 28 surgical centers?
This note supplies no current facility rate. The proposed comparison with a nearby Article 28 facility was commentary, not the court's ruling, and must not be used to bypass Avanguard.
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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.
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