Key Takeaway
Court ruling on fee schedule defense preservation in NY no-fault insurance claims, addressing the eight unit rule and arbitrator award reversal.
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.
Matter of Global Liberty Ins. Co. v Therapeutic Physical Therapy, P.C., 2017 NY Slip Op 01833 (1st Dept. 2017)
“Respondent sought recovery for physical therapy services provided to its assignor before April 1, 2013, and petitioner insurer disclaimed parts of the claim on the ground that it had already reimbursed a different provider for “eight units” for services on some of the same dates. Respondent checked the box on the prescribed disclaimer form indicating that it was relying on a “fee schedule” defense, specifically the “eight unit rule.” The lower arbitrator held that respondent was precluded from asserting its defense because the disclaimer was insufficiently specific in that the other provider was not named. Respondent appealed to the master arbitrator, arguing that it adequately preserved its defense. The master arbitrator, without addressing the issue of preservation, incorrectly found that the lower arbitrator had “considered the fee schedule defense” and “determined that espondent failed to provide evidence as to the other provider.”
The master arbitrator’s award was arbitrary, because it irrationally ignored the controlling law presented on the preservation issue (Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 ; see generally Matter of Smith , 55 NY2d 224, 232 ) — namely, that an insurer adequately preserves its fee schedule defense “by checking box 18 on the NF—10 denial of claim form to assert that plaintiff’s fees not in accordance with the fee schedule” (Megacure Acupuncture PC v Lancer Ins Co., 41 Misc 3d 139, 2013 NY Slip Op 51994, *3 ; Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736, 745-746 , affd sub nom. Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 ). Accordingly, we remand the matter to the extent indicated.”
So the arbitrator and master arbitrator are nameless, but you can look them up if you are curious – this was an e-filed case. I remember this case vividly. I appeared at the arbitration. The lower arbitrator told me she follows the Maslow rule which states that the disclaimer must set forth a prima facie defense. I told the lower arbitrator (who I never met before) that she was wrong, and I remember she was indignant at my comment. Perhaps I came off too strong. I was furious and stated that I did not care what she did because I will take the case up to the Appellate Division. She followed through on her promise and I followed through on mine. Man did I eat my words because the Master Arbitrator gave me the Petrofsky treatment and Justice Tapia said he thought the lower arbitrator’s analysis was spot on. I was starting to feel as though I did not understand the law anymore. Sometimes you read affirmations and opinions and you get the feeling that perhaps it is you, not them.
Again, the loss of Norman Dachs (prior to his illness) could be felt in the master arbitration system, as the master failed to address controlling case law on the box #18 issue.
As happens all too frequently, it took the Appellate Division to straighten this out If I only had Geico’s resources and volume, I would probably own half the docket at the Appellate Division, First Department (kidding, well kind of… not really).
The lesson here is that if you feel you have a solid legal argument, do not let AAA or a Supreme Court judge let you down. You will win some and lose some. Just make sure your papers are in order.
Related Articles
- Fee schedule defense requirements and preservation issues
- Competent evidence standards for fee schedule defenses
- Medical billing and down-coding in no-fault insurance claims
- First application of 11 NYCRR 65-3.8(g)(1)(ii) regulations
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2017 decision, New York’s no-fault fee schedules have undergone multiple revisions, and arbitration procedures regarding fee schedule defenses and disclaimer specificity requirements may have been modified through regulatory amendments. Practitioners should verify current fee schedule provisions and arbitration rules, as the “eight unit rule” and related reimbursement limitations discussed in this case may have been updated or replaced.
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 25, 2012Common Questions
Frequently Asked Questions
What is the no-fault fee schedule?
New York's no-fault fee schedule, established by the Workers' Compensation Board and the Department of Financial Services, sets the maximum reimbursement rates that no-fault insurers must pay for medical services. When an insurer pays less than the billed amount, citing the fee schedule as a defense, the provider can challenge the reduction by demonstrating that the fee schedule was improperly applied or that the services are not subject to fee schedule limitations.
Can a medical provider charge more than the fee schedule allows?
Medical providers treating no-fault patients are generally limited to the amounts set by the fee schedule and cannot balance-bill the patient for the difference. However, certain services may not be covered by the fee schedule, and disputes about whether a specific service falls within the fee schedule are common in no-fault litigation. The Department of Financial Services periodically updates the fee schedule rates.
How are fee schedule disputes resolved in no-fault arbitration?
When an insurer partially pays a claim citing the fee schedule, the provider can challenge the reduction through no-fault arbitration. The provider must demonstrate that the service billed is not subject to the fee schedule or that the fee schedule was incorrectly applied. The insurer bears the burden of proving the fee schedule applies and the correct rate was used. Fee schedule disputes often involve coding issues, modifier usage, and applicability of Workers' Compensation rates.
Does the no-fault fee schedule apply to all medical services?
Not all medical services are subject to the no-fault fee schedule. Certain services, supplies, and procedures may fall outside its scope, in which case the provider may bill the usual and customary rate. Disputes about whether a specific service or billing code is covered by the fee schedule are common. The Workers' Compensation Board fee schedule and the Department of Financial Services ground rules guide which services are covered and at what rates.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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.
