Key Takeaway
The 2017 Bronx Acupuncture leave-to-appeal order, the by-report verification dispute, and the difference between permission to appeal and a ruling.
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.
Historical note: The 2017 order granted leave to appeal only. Bronx Acupuncture (2019) supplies later verification authority in a different claim, not a verified disposition of that leave docket.
Last reviewed: September 2026
The July 2017 Bronx Acupuncture motion granted leave to appeal. It was not permission to reargue, and it did not decide whether missing by-report documentation defeated the provider’s case. Jason’s foreclosure analogy below was his own tentative theory.
Permission to appeal is not a merits holding
The leave order concerned the January 2017 Appellate Term decision. That decision denied the insurer summary judgment on the disputed by-report services because it had not shown the required request for additional documentation. It did not award the provider judgment.
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The later Bronx Acupuncture decision in 2019 addressed a similar verification issue in a different claim and affirmed the provider’s judgment there. It is not identified here as the disposition of the 2017 leave docket.
Do not extend the old commentary’s timeliness discussion to every excessive-fee defense. Oleg’s Acupuncture (2018) applied the post-April-2013 excessive-fee nonpreclusion rule. A missing-documentation denial and a supported excessive-fee reduction need separate analysis; Pavlova illustrates the documentation problem.
Jason’s historical commentary
These are Jason’s tentative observations from the original note. The foreclosure analogy was not established as Hereford’s appellate argument or adopted by the leave order; the final paragraph is not a current statement that every fee defense is precluded by a late denial:
This came out on July, 2017. The Court granted Hereford leave to argue that the failure to satisfy the “BR code” requirements of the fee schedule is fatal to a medical provider’s prima facie case. I am unsure if I agree since the Courts in New York consider all fee schedule issues “defenses”. My next thought is to state that the disclaimer based upon “BR” is sufficient to ultimately force a plaintiff to prove compliance with the rule. The theory for this comes from the “standing” jurisdiction in mortgage foreclosure cases. Pleading this as an affirmative defense – or in NF parlance through a disclaimer – requires an additional element of proof as part of the PF case – in this case compliance with the BR rule. But do I think my above theory is meritorious? Probably not.
If the Courts absent regulatory fiat will authorize billings short of provider fraud where a timely disclaimer is not issued, why should this be different.
Don’t get me wrong – I appreciate Hereford’s position. But after Amaze v. Eagle and Mary Immaculate Allstate (15 and 14 years ago, respectively), these are battles that bare no fruit.
Connect to the Encyclopedia
- Fee-schedule defense hub: cases, proof and later developments
- Pavlova: applying the by-report verification requirement
- Bronx Acupuncture (2019): the later verification decision
- St. Vincent: why the later verification reversal matters
- Jodi Jacobs: proof supporting a fee reduction
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.
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