Acupuncture paid at physician rate sustained on appeal

Understanding Acupuncture Fee Schedule Disputes in No-Fault Insurance

New York’s no-fault insurance system incorporates fee schedules from the workers’ compensation system to determine maximum allowable reimbursement rates for medical services. When acupuncture providers seek payment for services, a threshold question arises: should acupuncturists be reimbursed at the higher physician rate or the lower chiropractor rate? This distinction can significantly impact provider compensation and has generated substantial litigation in the Appellate Term.

The workers’ compensation fee schedule establishes different reimbursement rates for similar services depending on the type of provider rendering care. Physicians generally receive higher fees than chiropractors for comparable procedures, reflecting differences in training, scope of practice, and typical service complexity. When licensed acupuncturists—who are neither physicians nor chiropractors—provide services, insurance carriers frequently argue that the lower chiropractor schedule should apply.

The First Department Appellate Term has created a narrow pathway for acupuncture providers to escape chiropractor rate limitations, but no provider has yet successfully navigated this route. The court’s decisions suggest that demonstrating the acupuncture services rendered were not “similar” to those typically provided by physicians performing acupuncture could justify higher reimbursement, but this theoretical possibility remains unproven in practice.

Case Background

Okslen Acupuncture P.C. provided acupuncture services to a patient injured in a motor vehicle accident covered by Travco Insurance Company’s no-fault policy. The provider billed $1,182.53 for services rendered during October 2009, seeking reimbursement at rates authorized for physicians rendering acupuncture under the workers’ compensation fee schedule.

Travco denied a portion of the claim, paying only the amount permitted under the workers’ compensation fee schedule applicable to chiropractors performing acupuncture services. This resulted in a significant reduction from the billed amount, prompting the provider to file suit for the unpaid balance.

Defendant moved for summary judgment, submitting affidavits establishing that the denial was timely issued and properly calculated the maximum reimbursement under the applicable fee schedule. Plaintiff opposed the motion but failed to present evidence addressing either the efficacy of defendant’s mailing or the fee calculation methodology.

Jason Tenenbaum’s Analysis:

Okslen Acupuncture P.C. v Travco Ins. Co., 2014 NY Slip Op 51209(U)(App. Term 1st Dept. 2014):

“The affidavits submitted by defendant in support of its motion for summary judgment established prima facie that defendant timely and properly denied plaintiff’s no-fault claim to the extent plaintiff sought reimbursement in an amount greater than that authorized by the workers’ compensation fee schedule applicable to physicians who render acupuncture services (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134, 2013 NY Slip Op 51860; Great Wall Acupuncture v Geico Gen. Ins. Co., 16 Misc 3d 23 ). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the claim denial or the calculation of the fee. With respect to the latter, the affirmation submitted by plaintiff’s counsel did not address the nature of the acupuncture services rendered to plaintiff’s assignor, much less demonstrate that those services were not “similar” to acupuncture services generally provided by physicians, so as to exempt plaintiff from the reach of the physicians’ workers’ compensation fee schedule”

What is interesting is that this is now the second time this Court has left the door open for a medical provider – on a proper record – to obtain a fee for acupuncture in excess of that established in the chiropractor fee schedule. Nobody ha succeeded as of yet.

Legal Significance

The Okslen decision illustrates the burden-shifting framework governing fee schedule disputes in no-fault litigation. Insurance carriers moving for summary judgment must establish prima facie that denials were timely mailed and that fee reductions were properly calculated under applicable schedules. Once this threshold showing is made, the burden shifts to providers to raise triable issues of fact regarding either the procedural propriety of the denial or the substantive fee calculation.

Significantly, the court’s analysis suggests two potential avenues for challenging chiropractor rate limitations: procedural challenges to mailing efficacy and substantive challenges to the fee calculation’s applicability. Most providers focus on procedural mailing defenses, but the court’s language regarding the “nature of the acupuncture services rendered” opens a substantive path that remains largely unexplored.

The court’s statement that plaintiff failed to “demonstrate that those services were not ‘similar’ to acupuncture services generally provided by physicians” implies that acupuncture providers could potentially escape chiropractor rate limitations by proving their services differ substantially from typical physician-rendered acupuncture. This could include specialized techniques, longer treatment sessions, or more complex diagnostic procedures not commonly performed by physicians who occasionally incorporate acupuncture into their practice.

Practical Implications

For acupuncture providers seeking to maximize reimbursement, Okslen suggests the importance of detailed billing documentation that distinguishes services rendered from standard physician acupuncture. Providers should maintain comprehensive records describing specialized techniques, extended treatment protocols, and any procedures requiring expertise beyond what typical physicians performing acupuncture would employ.

When opposing summary judgment in fee schedule cases, providers must present affirmative evidence rather than relying solely on procedural arguments. This requires expert affirmations or detailed provider affidavits explaining why the specific services rendered were not similar to those contemplated in the physician fee schedule’s acupuncture provisions. Generic opposition papers will not suffice to raise triable issues.

Insurance carriers should note the court’s confirmation that timely denial and proper fee calculation together establish prima facie entitlement to summary judgment. Ensuring comprehensive documentation of both the mailing process and the fee schedule calculation methodology will position carriers favorably in subsequent litigation. However, carriers should anticipate increasingly sophisticated substantive challenges as providers develop evidence distinguishing their services from physician-rendered acupuncture.

Related Articles

• NY Acupuncture Fee Schedules: Licensed Practitioners Limited to Chiropractor Rates
• NY Acupuncture Prima Facie Defense: Chiropractor Rate Limitations Upheld
• Fee Schedule Defense Requirements in No-Fault Insurance Cases
• Understanding Medical Billing and Down-Coding in New York No-Fault Insurance Claims
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 decision, New York’s no-fault fee schedules and workers’ compensation fee schedules referenced in acupuncture reimbursement cases may have been subject to regulatory amendments or rate adjustments. Practitioners should verify current fee schedule provisions and any updated regulations governing acupuncture services reimbursement under no-fault insurance, as both the underlying fee structures and procedural requirements for challenging reimbursement denials may have evolved.