Key Takeaway
Bronx Acupuncture's 2019 by-report ruling: missing verification, CPT 97039 and why documentation duties differ from a claimant's court proof.
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.
Bronx Acupuncture required the insurer to request the report information it said was missing. The decision did not relieve the provider of the underlying documentation requirement.
Historical note: Bronx Acupuncture addresses a missing-information denial, not permission to omit a by-report justification; DFS’s by-report guidance continues to distinguish the required report from disputes over its assigned value.
Last reviewed: September 2026. Original publication date retained.
Why the missing-information denial failed
In Bronx Acupuncture Therapy v Hereford, 175 AD3d 455 (2019), the dispute concerned moxibustion billed under 97039. The Second Department upheld judgment for the provider because the insurer’s missing-information denial lacked merit after it failed to request additional verification.
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The opinion also identifies the 15-business-day period in 11 NYCRR 65-3.5(b), measured from receipt of the prescribed verification forms. That is more specific than an instruction to ask for information promptly; the actual record and follow-up requirements still need review.
A provider should not read this result as permission to withhold a report. DFS’s by-report guidance addresses a written report supporting the relative unit and recognizes that valuation disputes may require adjudication. The code’s designation does not establish medical necessity or coverage for every service billed under it.
Connect to the Encyclopedia
- Fee-schedule defense hub: cases, proof and later developments
- Acupuncture Approach: 97039 survived, other claims did not
- 2 & 9 Acupuncture: the unresolved 97026 and 97016 claims
- Flushing Traditional: an unresolved initial-evaluation claim
- Jason’s G0283 note: attended and unattended coding in context
- Easy Care: fee maximums and disputed exhaustion evidence
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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Apr 24, 2019Frequently Asked Questions
Common Questions About This Topic
5 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What happens if an insurance carrier doesn’t request verification for by-report services?
In Bronx Acupuncture, the insurer's missing-information denial failed because it had not requested verification. That specific result does not establish coverage for every by-report claim regardless of other issues.
Do healthcare providers need to prove by-report compliance in their initial submissions?
A by-report service still needs supporting documentation. The decision distinguished that requirement from the insurer's duty to request missing information; it did not tell providers to submit less documentation.
How long do insurance carriers have to request verification for by-report services?
The opinion cites 11 NYCRR 65-3.5(b)'s 15-business-day period after receipt of prescribed verification forms for additional verification. Identify the actual receipt dates and applicable follow-up rules before calculating a deadline.
Can insurance carriers still deny by-report claims after requesting verification?
Requesting verification does not decide the merits. The response, timeliness and asserted defense require separate analysis; this decision did not abolish defenses based on unmet verification requirements.
What types of documentation satisfy by-report requirements?
Supply a report explaining the service and the basis for the charge under the applicable schedule. DFS's by-report guidance discusses a written report and the reasonable relative unit; it does not make every unlisted procedure reimbursable.
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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.
