Key Takeaway
New York court rules that DME not included in fee schedules can still be compensable under 11 NYCRR 68.5, overturning insurance carrier arguments.
DME Reimbursement Beyond Fee Schedules: A Victory for Providers
Durable Medical Equipment (DME) providers in New York’s no-fault insurance system face constant challenges when seeking reimbursement for equipment not explicitly listed in established fee schedules. Insurance carriers frequently argue that if a DME item isn’t included in the fee schedule, it’s automatically non-compensable. However, a recent Appellate Term decision demonstrates that this position is legally flawed.
The case of High Quality Med. Supplies, Inc. v Mercury Insurance Group highlights an important principle that applies broadly across New York no-fault insurance law: fee schedules are not exhaustive lists that exclude all unlisted items. This ruling has implications similar to other fee schedule disputes we’ve seen in cases involving specific procedure codes and medical necessity disputes in major medical disputes.
Jason Tenenbaum’s Analysis:
High Quality Med. Supplies, Inc. v Mercury Ins. Group, 2016 NY Slip Op 51444(U)(App. Term 2d Dept. 2016)
“In SK Prime Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co. (43 Misc 3d 133, 2014 NY Slip Op 50630 ), this court noted that the “NYS Medicaid DME Services Fee Schedule” has been adopted as the Durable Medical Goods Fee Schedule for Workers’ Compensation (12 NYCRR 442.2 ). However, contrary to defendant’s argument on appeal, that is not a basis to hold that “the billing for durable medical equipment that is not included within the fee schedule is not compensable.” Indeed, 11 NYCRR 68.5 specifically addresses reimbursement for healthcare services not set forth in fee schedules”
I suppose I was unavailing here. 68.5 played out to the insurance carrier’s detriment.
Key Takeaway
This decision reinforces that 11 NYCRR 68.5 serves as a safety net for healthcare providers, ensuring that services and equipment not explicitly listed in fee schedules can still receive appropriate reimbursement. Insurance carriers cannot simply deny claims by arguing that unlisted items are categorically non-compensable under New York’s no-fault system.
Legal Update (February 2026): Since this 2016 post, New York’s no-fault fee schedules for durable medical equipment may have undergone significant revisions, including updates to reimbursement rates, covered items, and procedural requirements. The regulatory framework governing DME reimbursement disputes and the specific fee schedule references cited may have been amended or superseded. Practitioners should verify current fee schedule provisions and recent case law developments when advising on DME reimbursement matters.
