Key Takeaway
Court reverses summary judgment denial for CPT code 97026 infrared therapy billing, reinforcing recent case law favoring healthcare providers in no-fault disputes.
This article is part of our ongoing fee schedule coverage, with 118 published articles analyzing fee schedule issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Court Protects Healthcare Providers’ Rights to Bill for Infrared Therapy Services
CPT code 97026 represents infrared therapy, a treatment modality that insurance carriers frequently challenge as being outside the scope of covered services under New York No-Fault Insurance Law. However, a recent Appellate Term decision demonstrates that courts continue to scrutinize insurers’ attempts to categorically deny these claims without proper justification.
The case involved New Age Acupuncture challenging 21st Century Insurance Company’s denial of infrared therapy billing. Insurance carriers often deny CPT code 97026 claims by arguing the treatment falls “out of scope” of covered no-fault benefits, similar to disputes seen with other treatment codes like CPT codes 97813 and 97814 for acupuncture services.
This decision reinforces the principle that insurers must meet their burden when seeking summary judgment to dismiss provider claims, particularly when medical necessity disputes are involved.
Jason Tenenbaum’s Analysis:
New Age Acupuncture, P.C. v 21st Century Ins. Co., 2016 NY Slip Op 50737(U)(App. Term 2d Dept. 2016)
“Upon a review of the record, we find that defendant’s moving papers failed to demonstrate defendant’s prima facie entitlement to summary judgment with respect to so much of the complaint as sought to recover for services billed using CPT code 97026 (Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132, 2009 NY Slip Op 50732 ; see generally Sunrise Acupuncture PC v Tri-State Consumer Ins. Co., 42 Misc 3d 151, 2014 NY Slip Op 50435 ).
Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed using CPT code 97026 is denied.”
This would be the infrared code. I suspect the insurance carrier denied the billing as “our of scope”. The recent case law would suggest otherwise and this is just a further elucidation of the recent case law.
Key Takeaway
The Appellate Term’s reversal reinforces that insurance companies cannot simply dismiss infrared therapy claims without meeting their burden of proof. This decision continues the trend of courts protecting healthcare providers’ billing rights for legitimate therapeutic modalities, emphasizing that carriers must provide substantial justification when denying coverage for established treatment codes.
Legal Update (February 2026): Since this 2016 post, New York’s no-fault fee schedules and reimbursement rates for physical therapy services, including CPT code 97026, have been subject to multiple regulatory updates and amendments. Practitioners should verify current fee schedule provisions, coverage parameters, and any procedural changes that may affect infrared therapy billing under the no-fault system.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Fee Schedule Issues in No-Fault Insurance
The New York no-fault fee schedule establishes the maximum reimbursement rates for medical treatment provided to injured motorists. Disputes over fee schedule calculations, coding, usual and customary charges, and the applicability of workers compensation fee schedules to no-fault claims are common. These articles analyze fee schedule regulations, court decisions on reimbursement disputes, and the practical challenges providers face in obtaining appropriate payment under the no-fault system.
118 published articles in Fee Schedule
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Mar 25, 2014Common Questions
Frequently Asked Questions
What is the no-fault fee schedule?
New York's no-fault fee schedule, established by the Workers' Compensation Board and the Department of Financial Services, sets the maximum reimbursement rates that no-fault insurers must pay for medical services. When an insurer pays less than the billed amount, citing the fee schedule as a defense, the provider can challenge the reduction by demonstrating that the fee schedule was improperly applied or that the services are not subject to fee schedule limitations.
Can a medical provider charge more than the fee schedule allows?
Medical providers treating no-fault patients are generally limited to the amounts set by the fee schedule and cannot balance-bill the patient for the difference. However, certain services may not be covered by the fee schedule, and disputes about whether a specific service falls within the fee schedule are common in no-fault litigation. The Department of Financial Services periodically updates the fee schedule rates.
How are fee schedule disputes resolved in no-fault arbitration?
When an insurer partially pays a claim citing the fee schedule, the provider can challenge the reduction through no-fault arbitration. The provider must demonstrate that the service billed is not subject to the fee schedule or that the fee schedule was incorrectly applied. The insurer bears the burden of proving the fee schedule applies and the correct rate was used. Fee schedule disputes often involve coding issues, modifier usage, and applicability of Workers' Compensation rates.
Does the no-fault fee schedule apply to all medical services?
Not all medical services are subject to the no-fault fee schedule. Certain services, supplies, and procedures may fall outside its scope, in which case the provider may bill the usual and customary rate. Disputes about whether a specific service or billing code is covered by the fee schedule are common. The Workers' Compensation Board fee schedule and the Department of Financial Services ground rules guide which services are covered and at what rates.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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