Acupuncture Fee Schedule in No-Fault Cases: First Department Endorses the Chiropractor Rate

For years, one of the most litigated billing questions in New York no-fault practice was deceptively simple: how much is a licensed acupuncturist entitled to be paid? The no-fault fee schedules incorporated the workers’ compensation fee schedules, but those schedules contained no rate written specifically for licensed acupuncturists. Insurers filled the gap by reimbursing acupuncture at the rate payable to chiropractors who perform acupuncture — a much lower number than providers billed. This Appellate Term, First Department decision shows how that fight played out in Manhattan and the Bronx, and how it compared to the Second Department’s approach.

The Decision

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 2013 NY Slip Op 51860(U)(App. Term 1st Dept. 2013)

“The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.” (This looks like an old 97780 case)

Defendant’s prima facie entitlement to summary judgment

“; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 ), specifically, the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 ; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 ).”

Plaintiff failed to raise an issue of fact

“Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate.”

Note how the Appellate Term Second Department resolved the issues: “Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services”. Yet, the Court is still allowing Plaintiff’s to present proof to vault Great Wall II. Interesting.

The Fee Schedule Gap, Explained

The no-fault regulation limits a provider’s recovery to the charges permissible under the fee schedules adopted for workers’ compensation purposes. When a service has no schedule rate of its own — as acupuncture performed by a licensed acupuncturist did not — the insurer must determine a permissible charge by reference to a comparable, scheduled service. The Insurance Department’s General Counsel opinion cited in the decision (Ops. Gen. Counsel NY Ins. Dept. No. 04-10-03) blessed the approach of looking to the rate for acupuncture when performed by a chiropractor, and the case law cited here — Forrest Chen in the Appellate Division and Great Wall in the Appellate Term — built that guidance into a workable summary judgment defense.

The arithmetic explains the volume of litigation. As the decision recites, the provider billed $120 per session and the carrier paid $29.30 — roughly a quarter of the billed amount, multiplied across thousands of treatment sessions citywide. Whoever won the “similar procedure” question won real money.

The Burden-Shifting Framework

The decision illustrates how fee schedule defenses operate procedurally. The insurer carries the initial burden: it must show, through competent proof (typically a certified fee schedule, an explanation of the rate calculation, and proof of timely handling), that it paid the claim in accordance with the schedule rate for the comparable service. Once that showing is made, the burden shifts to the provider to raise a triable issue — here, by establishing that the acupuncture services sued for were not a “similar procedure” to the chiropractor-performed acupuncture the insurer used as its comparison point.

In Akita, the plaintiff offered nothing to carry that responsive burden, and summary judgment for the carrier followed. But the framework itself is the noteworthy part: the First Department treated the comparison as a factual proposition a plaintiff could, in theory, rebut with proof. The Second Department, by contrast, resolved the question categorically — holding “as a matter of law” that an insurer may use the chiropractor rate for licensed acupuncturists — while still, as noted above, allowing plaintiffs to present proof to vault Great Wall II. The two departments arrived at the same practical destination by slightly different doctrinal routes, which is exactly the kind of nuance that determines what evidence is worth assembling in a given courthouse.

Why This Matters

For acupuncture providers. The decision marks the practical end of the $120-per-session billing model for no-fault acupuncture in the First Department. A provider hoping to beat the chiropractor-rate cap needed actual proof that its services were not comparable to the scheduled procedure — conclusory opposition would not survive summary judgment.

For insurers. Akita confirmed that the chiropractor-rate defense, properly supported, wins in both departments. The proof package matters: the carrier must establish the schedule rate it applied and the basis for the comparison, not merely assert that it paid the right amount.

For everyone billing under the schedules. The deeper lesson outlives acupuncture: when a service lacks its own fee schedule entry, reimbursement is determined by analogy to a comparable scheduled service, and the fight is over the quality of the analogy. That principle governs fee schedule disputes well beyond CPT code 97780.

Related Resources

• Fee Schedule Defense Requirements in No-Fault Insurance Cases — our cluster hub on the fee schedule defense
• NY Acupuncture Fee Schedules: Licensed Practitioners Limited to Chiropractor Rates
• NY Acupuncture Prima Facie Defense: Chiropractor Rate Limitations Upheld
• Fee schedule defense – competent evidence?
• New York No-Fault Insurance Law
• The firm’s Legal Encyclopedia — doctrinal guides to New York no-fault defenses
• No-fault insurance defense practice

Legal Update (February 2026): The fee schedules and reimbursement methodologies for acupuncture services under New York’s no-fault insurance system have been subject to regulatory amendments and updates since this 2013 decision. Additionally, the Department of Financial Services has issued updated guidance on fee schedule applications and the use of workers’ compensation schedules for comparison purposes. Practitioners should verify current fee schedule provisions and recent regulatory interpretations when evaluating acupuncture reimbursement disputes.