OGC Opinion No. 06-11-07

The Office of General Counsel issued the following opinion on November 10, 2006 representing the position of the New York State Insurance Department.

RE: Electronic Filing of Claims

Question Presented:

Does the Insurance Law require an insurance agent to receive claims under a group dental insurance policy electronically?

Conclusion:

The Insurance Law does not require an insurance agent to receive claims electronically.

Facts:

An insurance agent, as a courtesy, allows claims under group dental insurance policies for which he is the agent of record to be submitted through him. The agent confirms whether the claimants are insured under the group policy and then forwards the claims to the insurer. There is no requirement, by either the insurer or the agent, that claims be submitted through the agent. The insurer has other means available to allow any person to submit a claim electronically to the insurer.

Analysis:

The Insurance Law does not make any provision for submission or receipt of dental insurance claims through electronic means. However, other laws, not under the jurisdiction of the Department address electronic submission or receipt of health insurance claims.

The Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191 (1996) (hereinafter "HIPAA") is a comprehensive federal enactment concerning health insurance. Section 1175 of HIPAA, codified as 42 U.S.C. § 1320d-4 (LEXIS 2006), requires "health plans" including health insurers, Insurance Law Article 43 corporations and health maintenance organizations to accept electronic claims if a person desires to submit such transactions electronically.

Pursuant to 42 U.S.C. § 1320d-4(a)(2) (LEXIS 2006), an insurer may satisfy the requirement that it accept electronic claims filings from any person who chooses to file electronically by either 1) directly receiving the claim or 2) receiving the claim through a health care clearinghouse, which processes the data and sends it to the insurer in the appropriate format. In addition, 45 C.F.R. § 162.923(e) (LEXIS 2006) authorizes an insurer to use a business associate, a term that is undefined, to conduct electronic transactions on its behalf. However, the regulation does not require the insurer to do so. We offer no opinion as to whether the insurer satisfies this requirement, although it is indicated that

the insurer does. More information can be sought from the Office of Civil Rights of the United States Department of Health and Human Services, since this is a matter within that agency's jurisdiction, at:

N.Y. Pub. Health Law § 2807-e (LEXIS 2006) requires certain health care providers, including physicians, to use an electronic claims format to submit claims for health care services. See Dept. Circular Letter No. 1 (1998). Although the statute does not specifically mention dental care providers, a contact with the New York State Department of Health, the agency with jurisdiction over the statute, may provide more information.

It must also be noted that while both the New York State Electronic Signatures and Records Act ("ESRA"), N.Y. State Tech. Law §§ 301-309 (McKinney Supp. 2006) and the federal Electronic Signatures in Global and National Commerce Act (E-Sign), 15 U.S.C.A. §§ 7001-7031 (2006), authorize the use and acceptance of electronic signatures and electronic records in commercial transactions and confirm their legal validity, neither obligates an insurer to accept electronic records and signatures in connection with insurance claim forms.

This opinion is limited to the Insurance Law. The Department offers no opinion on any other law.

For further information you may contact Assistant Counsel Brenda Gibbs at the Albany Office.