Fee schedule in New Jersey

Epic Pain Mgt. & Anesthesia Consultants, LLC v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51391(U)(App. Term 1st Dept. 2014)

“Defendant’s moving submission below relied exclusively on a worker’s compensation fee schedule defense, and failed to address, much less refute the applicability of Insurance Department regulation (11 NYCRR) § 68.6, which provides that where, as here, a reimbursable health service “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider.” Notably absent from defendant’s moving papers was any discussion of the proper “geographic location” of the plaintiff provider — which apparently maintains offices in both New York and New Jersey — or of the “prevailing fee” were such location determined to be in New Jersey”

What is the “prevailing fee”?  Is it the New Jersey fee schedule or something else?  Unsure.  I think Nassau Anesthesia Assoc. P.C. v Chin, 32 Misc.3d 282 (Dis. Ct. Nassau Co. 2011) is relevant on this point: “To the contrary, as recognized in Temple Univ. Hosp., Inc. v Healthcare Mgt. Alternatives, Inc. (832 A2d 501 ), the amounts “actually received” by medical providers from insurers are a far better indicator of the reasonable value of a provider’s services than the “full published charged” unilaterally set by the provider. (832 A2d at 508-510.)”

Legal Significance

This decision establishes that insurance carriers cannot simply apply New York’s workers’ compensation fee schedule to services performed outside the state and call it a day. When asserting a fee schedule defense for out-of-state services, carriers must address 11 NYCRR § 68.6 and establish what the “prevailing fee” is in the geographic location where services were provided.

The regulation’s use of “prevailing fee” rather than “fee schedule” is significant. Not all states have no-fault fee schedules, and even states with such schedules may structure them differently than New York. The “prevailing fee” standard requires a factual inquiry into what providers in the relevant geographic area typically charge for similar services.

Jason Tenenbaum’s citation to Nassau Anesthesia Assoc. P.C. v Chin provides important guidance: the prevailing fee should be determined by reference to amounts “actually received” by medical providers from insurers, not the “full published charges” unilaterally set by providers. This approach recognizes that published charges often bear little relationship to actual reimbursement rates and that the true market rate is established by what insurers actually pay.

The decision also raises threshold questions about determining the provider’s “geographic location” when the provider maintains offices in multiple states. If a provider has facilities in both New York and New Jersey, which location controls? The regulation’s reference to “the geographic location of the provider” suggests that the relevant inquiry is where the specific service was performed, not where the provider’s principal office is located.

Practical Implications

For insurance carriers asserting fee schedule defenses on out-of-state services, this decision requires additional proof beyond what would suffice for in-state services. Carriers must: (1) establish that the services were performed outside New York; (2) identify the geographic location where services were performed; and (3) submit competent evidence establishing the prevailing fee in that location.

Proving prevailing fees may require expert testimony, surveys of reimbursement rates in the relevant area, or other evidence demonstrating what providers typically receive for similar services. Simply submitting another state’s fee schedule may not suffice if that schedule is not actually followed in practice.

For healthcare providers performing services outside New York, the decision provides protection against carriers applying New York’s workers’ compensation fee schedule without proper analysis. Providers should be prepared to submit evidence of prevailing fees in their geographic area to rebut carrier defenses and establish the reasonableness of their charges.

Related Articles

• Cross-border medical fee schedules between New York and New Jersey
• Fee schedule defense requirements and competent evidence standards
• Understanding medical billing and down-coding in no-fault insurance claims
• Competent evidence requirements for fee schedule defenses
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 post, New York’s no-fault fee schedules and regulations governing out-of-state providers may have been substantially revised. Practitioners should verify current provisions of 11 NYCRR § 68.6 and any updated guidance on determining “prevailing fees” for services performed outside New York State, as regulatory amendments and interpretive decisions may have clarified these standards.