Acupuncture fee schedule defense again

Evolution of Acupuncture Fee Schedule Standards in No-Fault Litigation

The First Department Appellate Term’s approach to acupuncture fee schedule defenses underwent significant evolution between 2013 and 2014, reflecting the court’s refinement of evidentiary standards governing insurance carrier summary judgment motions. This doctrinal shift moved away from requiring detailed procedural comparisons between services rendered and fee schedule categories toward a more streamlined analysis focusing on mailing efficacy and calculation methodology.

In early 2013, the landmark Akita Medical Acupuncture decision established that acupuncture providers challenging fee schedule reductions bore the burden of demonstrating their services differed from those contemplated in the comparison procedure selected by insurers. This requirement created a substantive hurdle for providers, who needed to present evidence distinguishing their specific treatment techniques from standard acupuncture services described in workers’ compensation fee schedules.

By late 2014, however, the court’s language had evolved. Rather than emphasizing the provider’s obligation to differentiate services, decisions began focusing on whether providers raised triable issues regarding denial mailing or fee calculation. This linguistic shift suggested a more conventional burden-shifting framework, where insurers’ prima facie showing of proper denial and calculation could be challenged through either procedural or substantive defenses, without necessarily requiring detailed service comparisons.

Case Background

Karina K. Acupuncture P.C. provided acupuncture treatment to a motor vehicle accident victim during October 2009, billing $1,182.53 for services rendered over a three-week period. State-Wide Insurance Company received the claim and denied a portion of the charges, determining that plaintiff’s fees exceeded maximum reimbursement rates permitted under the applicable workers’ compensation fee schedule.

The insurance carrier’s denial specified that acupuncture services would be reimbursed according to the workers’ compensation schedule governing such services, resulting in a reduction from the billed amount. Plaintiff filed suit for the unpaid balance, and defendant moved for summary judgment dismissal.

In support of its motion, State-Wide submitted affidavits and documentary evidence establishing that the denial was timely issued and that the fee calculation properly applied the applicable workers’ compensation schedule. Plaintiff opposed the motion but failed to present evidence challenging either the mailing procedures or the mathematical calculation of the reduced fee amount.

Jason Tenenbaum’s Analysis:

Karina K. Acupuncture P.C. v State-Wide Ins. Co., 2014 NY Slip Op 51518(U)(App. Term 1st Dept. 2014)

“The affidavits and other documentary evidence submitted by defendant established prima facie that defendant timely denied that portion of plaintiff’s first-party no-fault claim seeking payment of $1,182.53 – stemming from acupuncture services rendered by plaintiff during the period October 1, 2009 through October 21, 2009 – on the ground that the fees plaintiff charged exceeded the amount permitted by the applicable workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134, 2013 NY Slip Op 51860; Great Wall Acupuncture v Geico Ge. 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 denial form issued in connection with this claim or the calculation of the fee.”

Note how in less than one year, this Court moved away from the original language in Akita :“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” and has now moved towards the following language: “In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial form issued in connection with this claim or the calculation of the fee.”

(what a difference a year makes)

Legal Significance

The Karina K. Acupuncture decision illustrates the First Department’s maturation in handling acupuncture fee schedule disputes. The earlier Akita framework imposed what some viewed as an unfair burden on providers to prove negative facts—that their services were not similar to fee schedule comparisons chosen unilaterally by insurers. This approach created practical difficulties, as providers often lacked access to the insurer’s internal fee schedule analysis or the specific rationale for selecting particular comparison codes.

The refined approach evident in Karina K. returns to traditional summary judgment principles. Insurance carriers establish prima facie entitlement by demonstrating timely denial and proper fee calculation. Providers then bear the burden of raising triable issues through evidence challenging either the procedural propriety of the denial (typically mailing deficiencies) or the substantive calculation methodology. This framework better aligns with established no-fault litigation standards governing other defenses.

Significantly, the decision does not entirely foreclose substantive challenges to fee calculations. The language “calculation of the fee” suggests providers can still contest whether the workers’ compensation schedule was correctly applied, whether proper codes were selected, or whether special circumstances justify departure from standard rates. However, providers must present affirmative evidence supporting these challenges rather than relying on the insurer to justify its comparison methodology.

Practical Implications

For acupuncture providers navigating fee schedule disputes, Karina K. signals that opposition papers must affirmatively challenge either mailing or calculation rather than simply asserting that services differed from fee schedule contemplated procedures. Effective opposition requires expert affirmations or detailed billing analysis demonstrating calculation errors, inappropriate code selection, or procedural deficiencies in the denial process.

Insurance carriers benefit from this clarified framework, as it reduces uncertainty about what showing is necessary for summary judgment. Carriers should ensure denial documentation clearly specifies the fee schedule applied, the calculation methodology, and the resulting reduced reimbursement amount. When these elements are properly documented and timely mailed, summary judgment should follow absent specific evidence raising triable issues.

Practitioners should recognize that the evolution from Akita to Karina K. reflects judicial refinement rather than fundamental doctrinal change. Both decisions affirm that acupuncture providers cannot escape fee schedule limitations absent proof that their services meaningfully differ from those contemplated in applicable schedules. However, Karina K. places the burden where it belongs—on providers to raise specific challenges rather than requiring insurers to justify every aspect of their fee reduction analysis.

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• Fee Schedule Defense Requirements in No-Fault Insurance Cases | Long Island & NYC Legal Analysis
• Fee schedule defense – competent evidence?
• New York No-Fault Insurance Law

Legal Update (February 2026): The no-fault fee schedules and reimbursement methodologies referenced in this 2014 decision may have been subject to regulatory amendments or updates since publication. Practitioners should verify current fee schedule provisions and calculation methods, as the New York State Department of Financial Services periodically revises reimbursement rates and procedural requirements for acupuncture and other healthcare services under no-fault insurance regulations.