Key Takeaway
Acuhealth v Hereford: the missing verification-request proof on a CPT 97039 by-report bill, and why neither side received summary judgment.
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.
An insurer could not obtain summary judgment merely because the provider had not sent supporting documentation with a CPT 97039 bill. In Acuhealth Acupuncture v Hereford, 2017 NY Slip Op 51871(U), decided December 22, 2017, the missing proof was that the insurer had requested additional verification.
Historical note: Acuhealth (2017) turned on missing verification-request proof; DFS’s by-report guidance distinguishes the supporting report from the unresolved value of the service.
Last reviewed: September 2026.
The by-report dispute
The insurer denied the claim because the billed by-report service arrived without the documentation it wanted. On its motion, however, it failed to show that it had sought the additional verification. The Appellate Term, Second Department, reversed the grant of summary judgment on that branch.
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The provider did not receive judgment either. Its own motion remained denied because it had not established that the claim was overdue or that the denial was deficient in the ways required on that motion. The appeal left a disputed claim, not an unconditional payment order.
Documentation and the permitted charge remain separate
The DFS Regulation 83 FAQ explains that by-report billing involves a written report supporting the service and its relative value. If the parties disagree about the proper value, that factual dispute may require arbitration or litigation.
Acuhealth addresses the insurer’s failure to establish a verification request on this record. It does not erase the provider’s documentation burden, set a reimbursement amount or declare every service coded 97039 separately payable. Compare the New Age CPT 97026 note for another reversal that denied the insurer judgment without deciding an automatic right to payment.
Jason’s original reaction
Jason’s original comment concerned the missing verification request, not whether every by-report bill must be paid:
This is a silly basis to deny a bill.
Connect to the Encyclopedia
Start with the fee-schedule defense hub. Related case notes:
- Urban Well: coding corrections and separate necessity proof.
- OS Tigris: an unsupported fee-schedule defense.
- Live In Grace: the electrical-stimulation codes 97813 and 97814.
- Healing Art: agreed coder testimony on codes 97810 and 97811.
- New Age: the denied motion on CPT 97026.
- Precious Acupuncture: coder proof and post-2013 preclusion.
- Quality Comprehensive: fee proof supported only partial dismissal.
For review of a particular no-fault billing dispute, contact the Law Office of Jason Tenenbaum. Bring the bill, service dates, denial and payment calculation.
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.
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