By-Report

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2017 NY Slip Op 51452(U)(App. Term 2d Dept. 2017)

“It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135, 2017 NY Slip Op 50101 ).

The record demonstrates that defendant received the claim form and that, with respect to the services at issue, its denial of the claim was based upon a failure to provide documentation. Plaintiff correctly argues that, because defendant never requested such documentation, defendant’s denial of claim form is without merit as a matter of law. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 should have been denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint should have been granted (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128, 2011 NY Slip Op 51292 ).”

It is hard not to have seen this result coming.  But it should be made clear that the failure to seek verification does not end the inquiry.  Assuming, as is usually the case, that verification is not sought, an expert review is necessary to determine the compensability, if any, of the service.  Similar to the failure to seek verification when the defense is lack of medical necessity, the provider can argue that the review is based upon an inadequate factual basis.

Related Articles

• NY Acupuncture Prima Facie Defense: Chiropractor Rate Limitations Upheld
• Understanding Medical Billing and Down-Coding in New York No-Fault Insurance Claims
• Fee schedule defense – competent evidence?
• Expert Competency and Medical Literature in New York Medical Malpractice and No-Fault Cases
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2017 post, 11 NYCRR 65-3 regulations governing no-fault insurance claims processing and verification requirements may have been amended, including potential changes to section 65-3.5’s documentation request procedures and timeframes. Additionally, workers’ compensation fee schedules referenced for “By Report” designations are subject to periodic updates that could affect reimbursement methodologies. Practitioners should verify current regulatory provisions and fee schedule designations before relying on these procedural requirements.