Acupuncture fee schedule (again)

The proper application of fee schedules in acupuncture reimbursement cases continues to be a complex area of New York no-fault insurance law. While carriers often assume they can rely on standard physician or chiropractic fee schedules for acupuncture services, recent appellate decisions have highlighted critical procedural requirements that can make or break a summary judgment motion.

The workers’ compensation fee schedule has become increasingly relevant in acupuncture billing disputes, particularly when carriers seek to justify reduced payments for services. New York’s no-fault regulations do not provide a separate fee schedule specifically for acupuncture services, which has led carriers to apply alternative fee schedule frameworks. The workers’ compensation fee schedule emerged as the predominant benchmark for acupuncture reimbursement, though its application has generated substantial litigation.

However, as various recent cases demonstrate, carriers must follow strict evidentiary requirements when moving for summary judgment - including proper annexation of the applicable fee schedules in their court papers. The requirement stems from fundamental principles of summary judgment practice: the moving party must establish their entitlement to judgment through admissible evidence submitted with the motion papers. Courts will not take judicial notice of fee schedules unless properly requested, and cannot consider evidence not in the record.

Case Background

MIA Acupuncture, P.C. brought an action against Integon General Insurance Corporation seeking payment for acupuncture services provided to an insured following a motor vehicle accident. The defendant insurance carrier denied portions of the claims or reduced payments based on the workers’ compensation fee schedule, asserting that the provider had been fully compensated in accordance with applicable reimbursement rates.

The insurance company moved for summary judgment, arguing that it had paid the claims in full when measured against the workers’ compensation fee schedule. The central issue became whether the carrier had properly established this affirmative defense through admissible evidence presented to the court.

Jason Tenenbaum’s Analysis:

MIA Acupuncture, P.C. v Integon Gen. Ins. Corp., 2012 NY Slip Op 50393(U)(App. Term 2d Dept. 2012)

“the portion of plaintiff’s claims at issue based upon the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the acupuncture services billed for, in accordance with the workers’ compensation fee schedule”

I included this case because there have been a few acupuncture fee schedule cases floating around lately that have denied insurance carrier’s motions for summary judgment, despite what appeared to be reimbursement in accordance with the chiro or physician fee schedule. From what I have discerned through various conversations with counsel for the various carriers is that the App. Term is enforcing the “you must ask for judicial notice rule” or the rule that the carrier must annex the proper fee schedule the moving or answering papers.

This case proves, on some level, that point.

Legal Significance

The MIA Acupuncture decision underscores a critical but often overlooked aspect of summary judgment practice in no-fault cases: procedural compliance matters as much as substantive merit. Even when a carrier has genuinely paid claims in accordance with applicable fee schedules and possesses a valid defense, failure to properly present that defense through admissible evidence will result in denial of summary judgment.

This evidentiary requirement reflects the summary judgment standard’s demand for prima facie proof. Courts cannot rely on arguments in attorney affirmations or assertions in memoranda of law. The moving party must submit documentary evidence or sworn testimony establishing each element of their claim or defense. For fee schedule defenses, this means actually annexing the relevant fee schedule to the motion papers or establishing its contents through competent testimony.

The decision also highlights the distinction between judicial notice and evidence in the record. While courts may take judicial notice of certain regulatory provisions or publicly available documents, practitioners cannot assume courts will independently research and apply fee schedules not submitted as exhibits. The burden remains on the moving party to provide the court with all necessary materials.

Practical Implications for Practitioners

Insurance defense attorneys should develop a comprehensive checklist for acupuncture fee schedule summary judgment motions. This must include: (1) annexing the complete workers’ compensation fee schedule or relevant portions, (2) submitting an affidavit from a competent witness explaining how the fee schedule applies to the billed services, (3) providing calculations demonstrating that payments equal or exceed scheduled amounts, and (4) if seeking judicial notice, explicitly requesting it in motion papers rather than assuming the court will take notice sua sponte.

Healthcare providers challenging fee schedule reductions should immediately examine whether the carrier properly submitted the fee schedule as evidence. An objection based on lack of evidentiary foundation can defeat an otherwise meritorious summary judgment motion. Providers should also scrutinize whether the submitted fee schedule actually covers the services at issue, as not all acupuncture codes appear in workers’ compensation schedules.

Both sides should recognize that these evidentiary requirements, while technical, serve important procedural fairness purposes. They ensure parties have adequate notice of the evidence against them and opportunity to respond. Courts cannot properly evaluate fee schedule defenses without access to the actual schedules and methodology for their application.

Key Takeaway

The MIA Acupuncture case reinforces a crucial procedural requirement in no-fault litigation: carriers must properly annex relevant fee schedules to their court papers rather than assuming courts will take judicial notice. This evidentiary requirement has become a decisive factor in recent acupuncture billing disputes, with carriers losing otherwise strong summary judgment motions due to procedural oversights.

Legal Update (February 2026): Since this 2012 analysis, New York’s no-fault fee schedules and acupuncture reimbursement regulations have likely undergone multiple revisions, including potential updates to workers’ compensation fee schedule provisions and procedural requirements for summary judgment motions. Practitioners should verify current fee schedule amounts, applicable regulatory frameworks, and recent appellate decisions addressing acupuncture billing disputes before relying on the legal standards discussed in this post.

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