Amendment of 11 NYCRR 68.6 coming soon

The amendment is no longer “coming soon.” This September 2016 post announced a proposal to change payment for no-fault treatment outside New York. DFS later adopted a different text. Those differences matter when reviewing a later bill.

Legal Update (September 2026): DFS confirms that the amended 11 NYCRR 68.6 applies to services on or after January 23, 2018; the proposal discussed in this 2016 note was not the final rule.

Last reviewed: September 2026.

What changed before adoption

The adopted 33rd amendment to Regulation 83 uses two payment comparisons. For covered out-of-state services to a New York resident, section 68.6(b) generally takes the lowest of the highest applicable New York regional fee, the provider’s charge and the local prevailing fee.

Section 68.6(a) instead uses the lower of the charge and the local prevailing fee when treatment is emergency care, the patient is not a New York resident, or the patient is a New York resident living in the treatment jurisdiction for reasons unrelated to treatment. That last exception has no fourteen-day minimum in the adopted text.

The emergency definition changed too. The final rule requires medically necessary treatment initiated within 48 hours of the accident for an accident-related injury or condition whose acute symptoms meet the stated severity standard. It extends through the initial hospitalization until discharge. The proposal’s presumption based on starting hospital care within 120 hours did not survive adoption.

Under section 68.6(c), an applicable motor-vehicle medical fee schedule in the treatment jurisdiction supplies the prevailing-fee amount. It does not erase the other parts of the comparison.

Start with the service date

DFS’s Regulation 83 FAQ places the dividing line at January 23, 2018. The treatment date controls, not the accident date or the date the insurer received the bill. A bill spanning that date needs the services separated. DFS also says Workers’ Compensation General Ground Rule 16 did not supersede this amendment.

Avanguard addresses another question. In Government Employees v Avanguard, 27 NY3d 22 (2016), the Court of Appeals held that the governing framework did not require payment of the New York office-based surgery practice’s separate facility fees. A geographic fee calculation is not, by itself, authority to pay a fee that is not reimbursable. Jason’s prediction below should be read with that distinction in mind.

Jason’s 2016 reaction

Jason wrote this when the amendment was a proposal. His prediction about New Jersey and Avanguard is preserved as commentary from 2016, not a promise that a particular facility fee is payable:

Okay, tell me you did not see this one coming?  But as long as “Avanguard” is the law of the land in New York, New Jersey will still be a lucrative market for no-fault providers.  And, I do not see how you can apply Avanguard to New Jersey in light of this regulation.  But greater and shiftier minds than mine will certainly try I am sure.

Connect to the Encyclopedia

Start with the fee-schedule defense hub. Related historical notes:

• Epic Pain (2014): proof of the treatment location and prevailing fee.
• Surgicare (2015): New Jersey’s schedule under the earlier rule.
• Excel Surgery (2019): why the 2015 service date mattered.
• Avanguard (2015): the appeal over office-based surgery facility fees.

For review of a particular out-of-state no-fault bill, contact the Law Office of Jason Tenenbaum. Bring the service dates, treatment location, bill, denial and payment calculation, together with any records relevant to a residency or emergency-care exception.