On behalf of Licatesi Law Group, LLP on Tuesday, February 14, 2012.

Insurance carriers have continuously attempted to put forth an argument that a non Article 28 facility cannot bill Worker’s Compensation or Medicare and therefore cannot bill No-Fault either. When I attempt to wrap my head around this argument, I can’t help but picture a family situation. Imagine this: No-Fault insurance being the “little brother”, and Worker’s Compensation and Medicare being the two “older brothers”…”Little brother” No-Fault wants to be able to do or not do everything both “older brothers” can/can’t. I picture No-Fault carriers yelling “Me too! If they don’t have to pay me either!” However, “Mom”, the No Fault Regulations, make the rules and the rules do not derive from mimicking other types of insurance coverage. This analogy helps to lighten my mood when this ever frustrating issue is continuously and adamantly argued by the carriers.

First, and most importantly, the New York State Insurance Department has already given their position on whether an entity that may not bill Worker’s Compensation may bill No-Fault. “Therefore, whether a service is reimbursable under No-Fault is not determined by whether such service is specifically reimbursable under the Worker’s Compensation fee schedule… Section 5108(b) specifically acknowledges that there may be other health services, not included in Worker’s Compensation fee schedule.”Clearly, the Regulations would not include language such as that in Section 5108 (b) if their intent was to exclude all services outside those specifically delineated in the Worker’s Compensation Fee Schedule.Section 5108 can be found here.

As we all know, the No Fault Regulations don’t beat around the bush; when the legislators want something included or excluded, it’s clearly stated in the Regulations. Moreover, the Regulations specifically provide for a situation in which a service is reimbursable under No Fault notwithstanding that it is not set forth in the Worker’s Compensation Fee Schedule. The regulations do explicitly state that “[i]f a professional health service is … reimbursable under section 5102(a) (1) of the Insurance Law, but is not set forth in fee schedules … then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (11 NYCRR § 68.5; Forest Chen Acupuncture Servs., P.C., 54 AD3d 996, 997 [2d Dept 2008]) The “prevailing rate” is “subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR § 68.5; Forest Chen, 54 AD3d at 997). The Forest Chen decision can be found here.

Forest Chen’s decision also shows that when a type of provider is excluded from billing Workers’ Compensation, and consequentially excluded from the fee schedule, the provider may still bill No-Fault. Neither licensed acupuncturists nor licensed massage therapists may bill Workers Compensation, but both may bill No-Fault (Forest Chen, 54 AD3d at 997. When Geico attempted this similar argument in front of argument in front of Judge Barbara Jaffe in Devonshire Surgical Facility v Geico, 14 Misc 3d 1208[A][table, text at 2006 Misc LEXIS 3850, *4][Civ Ct, NY County]) it was rejected. In Devonshire, Judge Jaffe noted that Geico submitted letters from the Workers Compensation which admit that “no-fault cases may be subject to differing interpretations” than Workers’ Compensation cases (see id., 2006 Misc LEXIS 3850, *3-4). The Devonshire decision may be found here.

As well as that, under “Office-Based Surgery Frequently Asked Questions for Practitioners” featured on the New York State Department of Health website, it is stated “Accreditation status alone does not requires a third party insurer to pay a facility fee. Whether a third party insurer will pay a facility fee is a matter of negotiation between the insurer and the OBS practice.” The Questions and answers can be accessed on the Department of Health website by clicking here.

There are other accrediting agencies, such as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). The Department of Health explicitly designated the JCAHO as acceptable accrediting agency form office based surgery practices.

If we followed the insurance carriers logic on non Article 28 facilities, any healthcare provider who is not certified to bill either Workers’ Compensation or Medicaid is somehow unlicensed; This argument is a direct violation of Section 230-d of the Public Health Law, which explicitly allows office-based surgery in a facility accredited by a “nationally-recognized accrediting agenc[y] determined by the commissioner” The Public Health Law allows surgical procedures to be performed in accredited non-Article 28 facilities.

Even more frustrating than the fact that the Regulations are so clear about the permissibility of non Article 28 facilities billing No Fault, is that insurance carriers will pick and choose when to bring this argument up; basically when they can’t find another viable defense. On multiple occasions I have had several cases with the same non Article 28 facility and the same insurance company; in some instances, they bring up the argument, in others they pay, but argue they charged too much or and still in others, they only argue it was not medically necessary.

For more information on this topic, or any of the blog topics and related law, contact the blog author Candice L. Deaner, Esq., 516-478-0237