No-Fault Fee Schedule Defense: NF-10 Denial Form Requirements and Regulation Analysis

Tyorkin did not award the provider its whole bill or dismiss the case for the insurer. The court precluded the peer-review defense, allowed the fee-schedule defense to remain, and sent the amount dispute to trial. The insurer’s coder had raised an issue without explaining the reductions well enough to obtain summary judgment.

Legal Update (September 2026): Precious Acupuncture (2018) later applied the post-2013 fee exception at the appellate level, while Blano (2025) took a contrary trial-level view; the fee-schedule hub connects those decisions without treating them as interchangeable authority.

Last reviewed: September 2026.

The three rulings in Tyorkin

Tyorkin v Garrison Property & Casualty Insurance Co., 2016 NY Slip Op 50846(U), was decided May 20, 2016, in Kings County Civil Court. The provider sought assigned no-fault benefits for services rendered in New Jersey. The insurer relied on a negative peer review and, alternatively, the New Jersey fee schedule.

The opinion separated the defenses. Its treatment of the peer review turned on the absence of a proper denial form in the record. Its fee ruling turned on the post-2013 excessive-fee provision. Its refusal to dispose of the remaining amount dispute turned on the inadequacy of the calculation.

Those are three different findings. Calling the case a general victory for an insurer that did not issue an NF-10 loses the part in which its other defense was precluded and its fee proof still failed to earn dismissal.

The EOR did not establish the required denial

The claims adjuster described mailing an Explanation of Reimbursement through the insurer’s vendor, Auto Injury Solutions. The record did not show that an NF-10 had been issued. It also did not show that the EOR was a Department-approved alternative under 11 NYCRR 65-3.8(c)(1).

The regulation permits an approved form or letter for a denial involving part of a health provider’s bill. Tyorkin did not find such approval here. The court therefore precluded the peer-review defense without deciding the parties’ competing arguments about its substantive merits.

This is narrower than saying that an EOR can never be used. It is also narrower than treating an affidavit’s reference to what happens “in applicable instances” as proof that the required form was actually sent in this claim.

Jason’s questions were questions, not case findings

Jason raised the following issues in his original June 2016 note. The published decision does not establish that an out-of-state policy or an arbitration provision controlled the result:

Here’s a silly question. Was this is an out of state based policy? Did anyone argue that out of state law applied? The policy mandates arbitration? Alrof, Bright Supply, bad affidavits?

The fact that treatment occurred in New Jersey did not, by itself, answer which state’s policy law governed. The opinion treated the matter as a claim for New York no-fault benefits and applied the cited New York regulations.

The fee defense survived, but overbilling was not a forfeiture

The court applied 11 NYCRR 65-3.8(g)(1)(ii) to the fee defense. It followed the approach in Saddle Brook and the separate Surgicare appellate decision: the post-April 1, 2013 excessive-fee defense was not lost through the timing or denial-form defect described in the opinion.

But the court rejected the insurer’s contention that a bill exceeding the allowable schedule became entirely unpayable for that reason alone. The fee provision reduced the permissible reimbursement; it did not establish that every part of the claim was forfeited.

Jason commented on that distinction. The pinpoint “65-3.8(g)(iii)” in his original passage is a historical citation error: the excessive-fee provision discussed here is subdivision (g)(1)(ii), with the service-date provision in (g)(2).

This is an important statement as various arbitrators have taken the position that over-billing is tantamount to failure to provide proof of claim and nothing should be awarded. While inartfully drafted, 65-3.8(g)(iii) sought to overturn Mercury v. Encare, which disallowed the insurance company to raise a fee schedule defense to grossly over-billed services.

His observations about positions taken in other arbitrations are his contemporaneous commentary. They are not findings about identified arbitration awards in the Tyorkin record.

Why the calculation needed a trial

The coder listed procedure codes and reductions, including multiple-procedure and assistant-surgeon components, but the court could not follow how the stated total had been reached. The attorney’s affirmation did not explain the missing steps either.

The court did not hold that counsel could never discuss a fee provision. It expressly acknowledged consideration of an attorney’s explanation and judicial notice of fee materials. The defect was that neither submission made this calculation sufficiently clear.

The result was deliberately limited: the coder’s analysis raised a triable issue, but did not establish the insurer’s entitlement to summary judgment. The court granted the parties’ motions only to the extent of establishing their prima facie cases for trial. The sole remaining trial issue was the fee-schedule defense, on which the insurer bore the burden.

Jason’s final reaction concerned that evidentiary presentation:

Very sloppy. There is no quality control over these cases.

Compare Healing Art v Amica, where the vendor adjuster’s affidavit established proper payment, and MIA Acupuncture v Integon, where the insurer obtained dismissal after demonstrating full scheduled payment. A witness’s credential is not the difference by itself; the explanation and supported conclusion matter.

The provider’s proof did not make the fee issue disappear

The court found that the provider established timely mailing of its bill through the physician’s affidavit, the bill itself and the accompanying USPS mail extract. That finding explained the provider’s prima facie position; it did not fix the amount payable after the insurer raised its fee defense.

Likewise, the insurer’s imperfect coding explanation was not treated as no evidence at all. It was enough to leave a factual issue even though it was not enough to establish the proposed reduction as a matter of law.

Those paired findings explain the final trial direction. The provider did not obtain the full billed amount merely by proving submission, and the insurer did not obtain dismissal merely by identifying excessive billing. The fee-schedule issue remained for proof at trial. The opinion expressly placed the burden of establishing that defense on the insurer.

Later decisions qualify how the note should be used

Precious Acupuncture Care v Hereford, 2018 NY Slip Op 50042(U), is an Appellate Term, Second Department decision applying the excessive-fee exception to post-April 1, 2013 services. There, sufficient coder proof also established full payment. The certified-coder note connects the timing question with the merits.

There is contrary trial-level treatment. Blano Medical v Hereford, 2025 NY Slip Op 51540(U), rejected a fee defense asserted at trial without a denial after it had not been presented in the earlier motion or trial order. Yumi Acupuncture v 21st Century, 2026 NY Slip Op 50433(U), followed that judge’s interpretation in a dispute involving an improper verification demand about other insurance.

These trial decisions are not appellate reversals of Precious Acupuncture or Surgicare. They do show why this old note should not tell an insurer that denial compliance can safely be ignored. Identify the relevant court, service dates, defenses and procedural record.

New Jersey’s payment comparison also changed

Tyorkin applied the earlier geographic fee rule. The adopted 33rd Amendment to Regulation 83 changed the comparison for out-of-state services, generally requiring comparison of the applicable New York regional amount, provider charge and local prevailing fee for New York residents, with specified exceptions.

The updated proposal-to-adoption note explains the January 23, 2018 service-date boundary. A current calculation cannot rely only on the sentence in Tyorkin that referred to New Jersey’s authorized rates.

That geographic question remains separate from whether the underlying charge is reimbursable at all. Avanguard addresses the separate office-based facility-fee issue. A valid arithmetic comparison is not a substitute for authority to collect the particular fee.

Questions to carry into a claim review

For a file resembling Tyorkin, identify which document actually communicated the denial and whether an alternative form had the relevant approval. Then separate the defenses. An excessive-fee argument does not answer the merits or preservation of a peer-review defense.

For the remaining amount, connect each reduction with its schedule provision and service date. The court should not have to reconstruct an unexplained total from disconnected entries. Equally, an opponent should identify a concrete issue in the calculation rather than assume that defeating the insurer’s motion necessarily wins the entire claim.

This historical note is most useful as a record of that middle outcome: one defense was precluded, another survived, and the disputed amount still required proof at trial.

Connect to the Encyclopedia

Start with the fee-schedule defense hub. Follow the closest case comparisons:

• Saddle Brook: the earlier excessive-fee amendment decision.
• Surgicare: the earlier New Jersey prevailing-fee dispute.
• Healing Art: a vendor’s calculation that supported dismissal.
• MIA Acupuncture: full payment and timely denials established.
• Precious Acupuncture: later appellate treatment of preclusion.
• Avanguard: separate facility-fee entitlement before calculating an amount.

For review of a particular no-fault billing dispute, contact the Law Office of Jason Tenenbaum. Bring the service dates, bills, payment records, denials and the insurer’s fee calculation. A review can identify the disputed issue; these historical decisions do not guarantee a recovery.