Over the past few years, perhaps no other no-fault insurance issue has been more frequently litigated in the Appellate Term than the proper billing of acupuncture services. While there is no distinct fee schedule for licensed acupuncturists, the courts have routinely held that a “Licensed Acupuncturist” is limited to billing at the “Chiropractic” rate of services.1 This seemingly bright-line rule does not, however, obviate the need for a defendant insurer to affirmatively prove its fee schedule defense upon moving for summary judgment. In fact, recent case law has served to increase the insurer’s burden on summary judgment; to wit, an insurer is required to submit as part of its motion, an affidavit of an individual with advanced knowledge in applying New York State Workers’ Compensation Fee Schedule codes and calculations, and must also attach the relevant portions of the Fee Schedule to its papers.
In this regard, in MIA Acupuncture v. Praetorian Ins.,2 the Appellate Term, Second Department held:
