Key Takeaway
2 & 9 Acupuncture's 2017 ruling restored claims for CPT 97026 and 97016. What the record proved, and what the court did not decide.
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.
The 2017 appeal restored the provider’s claims for codes 97026 and 97016. It did not award payment or announce that those codes must always be paid separately.
Historical note: This 2017 record did not establish a permanent payment rule for either code; DFS’s later schedule adoption and effective-date guidance must be checked for later services.
Last reviewed: September 2026. Original publication date retained.
Correcting the procedural history
In 2 & 9 Acupuncture v 21st Century Advantage, 2017 NY Slip Op 50599(U), Suffolk County District Court had granted the insurer’s motion. The provider appealed, and the Appellate Term reversed the dismissal of the two disputed code claims because the insurer’s evidence did not establish its fee-schedule defense.
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The earlier version of this page had the lower-court result and appellant reversed. It also described 97026 as decompression traction, a description not supported by this opinion; that clinical account has been removed.
The court cited Sama Physical Therapy and W.H.O. Acupuncture without setting out a universal choice between an expert affidavit and a ground-rule explanation. Jason’s inference below goes further than the express holding. For a later dispute, read the code-specific calculation and its supporting evidence. A fee-schedule label on the denial does not explain the calculation.
Historical commentary from the archive
Jason’s original inference about expert proof is retained below. The opinion itself found the record insufficient and cited two cases; it did not announce a universal two-option evidentiary test:
It appears that Plaintiff billed for the above two codes and was not compensated for the same. The Court through citing Sama Physical and WHO Acupuncture, P.C. is holding that in order to zero out the non acupuncture based codes, an expert affidavit is necessary (WHO Acupuncture). Alternatively, more probative proof would be necessary should Ground Rule 11 be utilized (Sama),
Connect to the Encyclopedia
- Fee-schedule defense hub: cases, proof and later developments
- Acupuncture Approach: 97039 survived, other claims did not
- Forrest Chen: comparison rates and the unpreserved argument
- Bronx Acupuncture: by-report verification and the motion result
- Flushing Traditional: an unresolved initial-evaluation claim
For review of a particular no-fault billing dispute, contact our office.
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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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.
If you need legal help with a fee schedule matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
