New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Acting Superintendent

The Office of General Counsel issued the following opinion on March 22, 2005 representing the position of the New York State Insurance Department.

RE: Acupuncture Packages

Question Presented:

May a licensed acupuncturist offer a discounted package of treatments in New York?

Conclusion:

So long as any insurer is not deceived, such packages would not be contrary to the New York Insurance Law (McKinney 2000 and 2005 Supplement).

Facts:

A licensed acupuncturist in New York, who also practices in New Jersey, previously offered packages of facial acupuncture in which the patient paid for multiple treatments. As the acupuncturist described it:

These are constitutional treatments which involve body needling along with facial acupuncture or facial microcurrent. The process improves muscle tone as well as facial circulation, and possibly triggers collagen formation.

The acupuncturist stated that she was informed by the New York Board of Acupuncture that the New York Education Department had no problem with the sale of such packages. However, the insurer providing the acupuncturist with professional liability insurance indicated to the acupuncturist that she must secure the approval of her local Insurance Department and Corporation Department to offer such discounted packages.

Analysis:

The acupuncturist indicated that the insurer in question is the American Acupuncture Council ("Council"). The Council is not a licensed insurer in New York. According to the Council’s website, the Council sponsors a program of professional liability insurance underwritten by a company whose name is recognizable as an insurance group.

The insurance group name shown on the Council’s web site is actually the name for several insurers that are incorporated and licensed in the United States and whose ultimate corporate parent is located in the United Kingdom. While several of the group’s insurers are licensed in New York, no such insurer has filed to issue an acupuncturist’s professional liability insurance policy in New York. Accordingly, the policy under discussion here was not issued in New York and this Department has no jurisdiction over its terms and conditions.

While coverage of acupuncture treatment by health insurance is not specifically required in New York, such coverage, if offered, would be encompassed within the definition of accident & health insurance, New York Insurance Law § 1113(a)(3) (McKinney 2000 and 2005 Supplement), and may be included in policies issued in New York. Many health insurers reimburse for the services of health care professionals on the basis of usual and customary charges whereas other insurers may reimburse based upon a fee schedule.

New York Penal Law § 176.05(2) (McKinney 1999 and 2005 Supplement) defines health insurance fraud:

A fraudulent health care insurance act is committed by any person who, knowingly and with intent to defraud, presents, causes to be presented, or prepares with knowledge or belief that it will be presented to, or by, an insurer . . . any written statement or other physical evidence as part of, or in support of . . . a claim for payment, services or other benefit pursuant to such policy, contract or plan, which he knows to: (a) contain materially false information concerning any material fact thereto; or (b) conceal, for the purpose of misleading, information concerning any fact material thereto. . . .

Unless a health care professional submits false or misleading information to an insurer concerning his or her charges, which knowing submission might be health insurance fraud, the Insurance Department does not regulate how such a professional charges his or her patients.

For further information you may contact Principal Attorney Alan Rachlin at the New York City Office.