Acupuncture may be billed using 97039 and 97026

VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 50164(U)(App. Term 1st Dept. 2015)

(1) “Defendant’s documentary submissions established prima facie that it timely and properly denied plaintiff’s no-fault claims billed under CPT codes 97810, 97811 and 99203 on the ground that the amounts charged were in excess of the fees fixed by the applicable workers’ compensation fee schedule.” Payment at the chiropractor rate was sufficient to prevail on these codes.

(2) “Contrary to plaintiff’s contention, defendant’s April 12, 2010 denial of plaintiff’s claim in the amount of $2,690 was timely, since the last day of the 30 calendar days within which defendant was required to pay or deny the claim (see 11 NYCRR 65-3.8) fell on Saturday, April 10, 2010 (see General Construction Law § 20).”  Here, day 30 fell on a Saturday, and it was sufficient that the disclaimer was mailed on a Monday.

(3) “Triable issues remain, however, in connection with plaintiff’s claims billed under CPT codes 97039 (moxibustion) and 97026 (infrared treatment). The position taken by defendant’s affiant, a certified medical coder, that the above-mentioned services, although “within the scope of practice of an acupuncturist, . . cannot be considered for reimbursement” because the procedure codes billed under were listed in the workers’ compensation physical medicine fee schedule, is unpersuasive. Inasmuch as the superintendent of insurance has not adopted or established a fee schedule for reimbursement of acupuncture services performed by a licensed acupuncturist, an insurer may consider the “charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5) for purposes of determining the appropriate reimbursement rate (see Forrest Chen Acupuncture Servs., P.C. v Geico Ins. Co., 54 AD3d 996 ).”

Consider the situation a listed provider bills for services outside of the portion of the fee schedule that is unique to that provider.  I believe Robert Physical in light of VS Acupuncture an Avanguard may be dead.

Related Articles

• NY Acupuncture Prima Facie Defense: Chiropractor Rate Limitations Upheld
• NY Acupuncture Fee Schedules: Licensed Practitioners Limited to Chiropractor Rates
• 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): The fee schedules and reimbursement rates for acupuncture services discussed in this 2015 post may have been substantially revised through regulatory amendments to 11 NYCRR 65-3. Additionally, CPT coding guidelines and the workers’ compensation fee schedule referenced for no-fault reimbursement determinations have likely undergone multiple updates since 2015. Practitioners should verify current fee schedule provisions and applicable CPT codes under the most recent regulatory framework.