Key Takeaway
High Quality rejected automatic nonpayment for DME absent from a fee schedule. The 2016 ruling left entitlement and the proper charge unresolved.
This article is part of our ongoing fee schedule coverage, with 118 published articles analyzing fee schedule 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 item missing from a fee schedule is not automatically outside reimbursement. In High Quality Medical Supplies v Mercury (2016), the Appellate Term rejected that categorical argument and affirmed denial of the insurer’s summary judgment motion. It did not award the provider payment.
Historical note: High Quality (2016) rejected a categorical unlisted-equipment defense under 11 NYCRR 68.5; it did not identify a current DME code or establish the amount payable for a new claim.
Last reviewed: September 2026
What the missing listing did not establish
The insurer relied on adoption of the Medicaid DME schedule as the workers’ compensation durable medical goods schedule. The court explained that this did not establish noncompensability for every item absent from that schedule. It pointed to 11 NYCRR 68.5, which addresses health services not set forth in fee schedules.
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That answered the insurer’s proposed ground for dismissal. It did not establish that any equipment supplied after an accident is payable, that the provider can choose any price, or that a particular unlisted item meets every other claim requirement.
What the opinion does not identify
The reported decision does not name the equipment or give its billing code. It cannot verify whether a particular item is listed in a later schedule, much less calculate a current reimbursement amount.
For a new DME dispute, the item and service date must be identified before treating this decision as a pricing answer. The historical point is the limit on the insurer’s argument: absence from the list, by itself, did not justify summary dismissal in this case.
Jason’s historical commentary
Jason’s original assessment was brief:
I suppose I was unavailing here. 68.5 played out to the insurance carrier’s detriment.
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Fee-schedule defense topic hub
- First Aid: a different unresolved bundling dispute
- LVOV: evidence supporting a fee-schedule calculation
- Therapeutic Physical Therapy: a preserved defense still needed proof
- Okslen: comparing services under an older schedule
For review of a particular bill or denial, contact the firm. The decision and commentary above concern the stated record; they do not determine a new claim.
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
Fee Schedule Issues in No-Fault Insurance
The New York no-fault fee schedule establishes the maximum reimbursement rates for medical treatment provided to injured motorists. Disputes over fee schedule calculations, coding, usual and customary charges, and the applicability of workers compensation fee schedules to no-fault claims are common. These articles analyze fee schedule regulations, court decisions on reimbursement disputes, and the practical challenges providers face in obtaining appropriate payment under the no-fault system.
118 published articles in Fee Schedule
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Apr 13, 2010Was this article helpful?
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 fee schedule 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.
