Key Takeaway
Acupuncture Approach's 2017 CPT 97039 claim survived summary judgment; its other claims failed for missing verification. Read the distinction.
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 preserved headline says 970309, but the reported dispute concerned CPT code 97039. That claim survived; the provider did not win the entire case.
Historical note: The reinstated claim concerned this motion record; Bronx Acupuncture (2019) later addressed the separate obligation to request by-report verification.
Last reviewed: September 2026. Original publication date retained.
Two different reasons for the split result
In Acupuncture Approach v Tri State Consumer, 2017 NY Slip Op 51170(U), the First Department’s Appellate Term reinstated the 97039 claim. The insurer had not established that the disputed service was nonreimbursable as outside the provider’s specialty.
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The remaining claims stayed dismissed as premature because the provider had not answered properly issued verification requests. Leaving that part out turns a split procedural ruling into a much broader provider victory.
The decision does not impose a special burden for all unlisted codes or require a particular expert in every case. Compare the service described in the record with the defense the insurer actually supported. A licensing objection and a request for missing billing information are different issues; success or failure on one does not decide the other.
Historical commentary from the archive
Jason’s contemporary reaction was emphatic. The court’s narrower conclusion was that this insurer failed to establish its motion, not that a scope-of-practice defense can never succeed:
The long-failed out of scope defense, well has long-failed. Again, it failed. Common theme?
Connect to the Encyclopedia
- Fee-schedule defense hub: cases, proof and later developments
- 2 & 9 Acupuncture: the unresolved 97026 and 97016 claims
- Bronx Acupuncture: by-report verification and the motion result
- Flushing Traditional: an unresolved initial-evaluation claim
- Forrest Chen: comparison rates and the unpreserved argument
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.
