Acupuncture Needle Reinsertion Billing in New York No-Fault: How Far Does the False-Billing Defense Reach?

Acupuncture billing disputes are a staple of New York no-fault litigation, and few line items generate more friction than the add-on charge for needle reinsertion. In Karina K. Acupuncture, P.C. v Phoenix Ins. Co., the Appellate Term, First Department, upheld summary judgment for an insurer that denied reinsertion claims based on the patient’s own sworn statement that the service never happened. The holding is clean — but it begs a harder question about partially false billing that the courts have yet to answer.

The Decision

Karina K. Acupuncture, P.C. v Phoenix Ins. Co., 2018 NY Slip Op 50913(U)(App. Term 1st Dept. 2018)

“Defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims for acupuncture needle reinsertion services by demonstrating that it timely and properly denied the claims based on the assignor’s sworn statement denying that such services were performed upon him. In opposition, plaintiff’s proof, essentially consisting of an attorney’s affirmation, was insufficient to raise a triable issue as to whether the needle reinsertions were actually performed.”

What Needle Reinsertion Billing Means

Some quick context for readers who do not live in the no-fault fee schedule. Acupuncture services in New York no-fault claims are reimbursed under the workers’ compensation fee schedule, which prices acupuncture in timed units: an initial 15-minute increment of personal one-on-one contact, plus add-on codes for each additional 15 minutes that involve re-insertion of needles. That “+15 minute” reinsertion add-on is billed per session, session after session, so across a course of treatment it can represent a substantial share of a provider’s total billing.

Because the add-on turns on whether needles were actually withdrawn and re-inserted during the session — something only the treating provider and the patient would know — carriers test it at examinations under oath of the assignor. When the eligible injured person (the “EIP,” the patient who assigned no-fault benefits to the provider) swears the reinsertions never happened, the carrier has admissible, first-hand proof that the billed service was not rendered. A bill for services never performed is not compensable, and a timely, proper denial on that ground will support summary judgment.

The procedural lesson from Karina K. is equally important: an attorney’s affirmation is not evidence. Faced with the assignor’s sworn denial, the plaintiff needed something from a person with knowledge — typically the treating acupuncturist — to create a triable issue. It offered none, and the claims were dismissed.

The Better Question: Partially False Billing

What happens when the EIP says “sometimes” I get reinserted needles? Or the proof is inconclusive that the EIP never had the needles reinserted. Does the provider lose all reinsertion billing or does the carrier lose the defense because it cannot delineate the dates the reinsertion never occurred.

This question asks whether submitting a false bill in the first instance carries the penalty of losing out on all false billing (even if some of the false billing is not false). Since the “fraud” provision of the general policy does not apply to the no-fault endorsement (Utica v. Timms), I am hard pressed to say the defense would exist in what I think is the circumstance that occurs more frequently.

In other words, Karina K. is the easy case: a categorical sworn denial covering all of the billed reinsertions. The more common record is murkier — a patient who remembers reinsertion on some visits but not others, or simply cannot say. Without a contract-based fraud forfeiture clause to fall back on in the no-fault endorsement, the carrier may be left litigating the claim date by date, with the burden of connecting its proof to specific bills.

Why This Matters

For carriers and defense counsel, the case underscores the value of a well-taken EUO of the assignor. Specific, date-anchored questions about what actually happened during treatment sessions produce the kind of sworn testimony that wins summary judgment. Vague or equivocal answers produce the harder partial-falsity problem described above.

For providers, the takeaways are equally concrete: document timed services contemporaneously, make sure session notes reflect what the bill claims, and never oppose a services-not-rendered motion with an attorney’s affirmation alone. An affidavit from the treating provider addressing the specific dates of service is the minimum price of admission to defeat summary judgment.

Related Resources

• Understanding fee schedule defense requirements and competent evidence standards
• Fee schedule defense in New York no-fault insurance cases — our fee schedule cluster hub
• NY acupuncture prima facie defense and chiropractor rate limitations
• Understanding medical billing and down-coding in New York no-fault insurance claims
• New York No-Fault Insurance Law
• The firm’s Legal Encyclopedia of New York insurance litigation topics
• Our no-fault defense practice