Key Takeaway
Total Equipment's 2013 DME ruling concerned a prescription filled after the IME cutoff and inadequate rebuttal, not an automatic bar based on timing alone.
This article is part of our ongoing medical necessity coverage, with 170 published articles analyzing medical necessity 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.
An earlier DME prescription did not save the claim in Total Equipment. The prescription was filled after the insurer’s IME cutoff, and the provider did not answer the medical evidence supporting the denial.
Historical note: Total Equipment (2013) applied an IME-based denial to equipment supplied after the cutoff; the earlier prescription did not, by itself, rebut the insurer’s supported motion.
Last reviewed: September 2026.
Total Equipment v Mercury, decided December 20, 2013, identifies three dates: the orthopedic IME on December 3, 2009; the denial’s effective date of December 18; and fulfillment of the prescription on December 21.
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The affirmed IME report supplied a factual basis and medical rationale for finding no need for the equipment. The provider responded only with an attorney’s affirmation and the prescription. Those papers did not raise a triable issue, and the Appellate Term affirmed dismissal.
The earlier prescription was therefore insufficient on this motion. The opinion does not promise reimbursement for delivery before a cutoff, recommend accelerating care or supply a general internal-appeal requirement before a no-fault lawsuit. Keep the medical showing and the dates together when reading the result.
Jason’s original comment
Jason’s January 2014 comment follows. Its acquisition-or-use wording is broader than the opinion’s specific prescription-fill dates; Total Equipment still required a supported medical showing.
So the medical necessity for post IME services is measured from when the service is acquired or used, not when it is prescribed. This rule makes sense.
Connect to the Encyclopedia
Start with the medical-necessity and peer-review topic hub.
- All-In-One: stipulated post-IME records at trial
- Forest Drugs: an affirmation that did not answer the IME
- Throgs Neck: inadequate opposition to an IME-based motion
- Hernandez: the surgeon’s claims and summary judgment
For review of a particular New York no-fault 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
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
170 published articles in Medical Necessity
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Mar 16, 2010Frequently Asked Questions
Common Questions About This Topic
6 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Q: What happens if my DME prescription was written before the IME but filled afterward?
In Total Equipment, the prescription was filled after the denial's effective date. The insurer also supplied a reasoned IME report; the provider's attorney affirmation and prescription did not raise a factual dispute. Timing alone was not the entire showing.
Q: Can I expedite DME delivery if I know an IME is coming?
This opinion does not recommend changing delivery or treatment schedules to precede an IME. It decides the sufficiency of the proof for equipment supplied after a particular cutoff, not whether earlier delivery guarantees reimbursement.
Q: What if the insurance company delayed the IME process?
Total Equipment did not decide a delay exception. Counsel would need to examine the actual dates, denial and medical evidence before drawing a conclusion about a different claim.
Q: How long does DME coverage typically last after an accident?
The opinion establishes no typical coverage duration or usual IME schedule. Its relevant dates are the examination, the denial's effective date and the date this prescription was filled.
Q: Can I challenge an IME doctor’s findings?
The provider could oppose the insurer's motion, but the material submitted here did not address the IME doctor's medical reasoning. The decision does not require exhausting a sequence of internal and external appeals before litigation.
Q: What documentation should I maintain for DME claims?
The prescription and fulfillment dates, IME report, denial and medical evidence are relevant to the dispute illustrated here. The opinion shows why dates and an attorney's affirmation alone did not supply the missing medical rebuttal.
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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.
If you need legal help with a medical necessity 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.
