OGC Op. No. 03-01-35

The Office of General Counsel issued the following opinion on January 16, 2003, representing the position of the New York State Insurance Department.

Re: No-Fault Billing for Ambulette Services 11 NYCRR § 65 (Regulation 68).

Questions Presented:

1. What are the effective dates for the new rules and procedures required by the revised Regulation 68?

2. Are ambulette services reimbursable as "other professional health services" as defined in N.Y. Ins. Law § 5102(a)(1) (McKinney 2000)?

3. Are ambulette services reimbursable as "other reasonable and necessary expenses" as defined in N.Y. Ins. Law § 5102(a)(3) (McKinney 2000)?

4. If ambulette services may be reimbursable as either or both of "other professional health services" and "other reasonable and necessary expenses", may the ambulette service bill the no-fault insurer directly?

Conclusions:

1. Insurers are required after April 5, 2002, to issue new prescribed endorsements with all new and renewal policies. For further information please refer to Circular Letter No. 9 (2002) or "Consumers Frequently Asked Questions" on the Insurance Department's website at http://www.ins.state.ny.us.

2. No. Ambulette services are not professional health services authorized for reimbursement pursuant to N.Y. Ins. Law § 5102(a)(1) (McKinney 2000). See Regulation 68, 11 NYCRR 65.15(o)(vi).

3. Yes. Ambulette services may be reimbursable as "other reasonable and necessary expenses", up to twenty-five dollars per day. See N.Y. Ins. Law § 5102(a)(3) (McKinney 2000).

4. No. For claims arising from accidents occurring on or after April 5, 2002, assignment of benefits (direct payment to the provider based upon an assignment executed by the no-fault claimant) are limited to providers of health care services. See Regulation 68, 11 NYCRR 65-3.11(a). Ambulette services are not health care services (see 2 above).

Facts:

The inquirer requested an advisory opinion not related to any specific fact situation. Accordingly, the inquirer was directed to contact this department in the future to further elucidate the details of any specific matter that may arise.

Analysis:

Insurance Regulation 68, which implements New York's No-Fault Law, was first promulgated in 1974. Effective September 1, 2001, the Insurance Department repealed the original Regulation 68 and promulgated a revised Regulation 68. The promulgation of the revised Regulation was challenged in New York State Supreme Court and a stay of enforcement was issued by the Appellate Division, First Department, which prevented the Department from implementing and enforcing any of its provisions. On February 9, 2002, the Supreme Court affirmed the Insurance Department's authority to promulgate the regulation. A subsequently issued stay of enforcement of the revised Regulation was lifted by the Appellate Division, First Department on April 4, 2002.1 The Appellate Division, First Department, affirmed the Supreme Court's decision on October 22, 2002. The revised Regulation therefore became effective on April 5, 2002. Insurers were required, on or after April 5, 2002, to issue new prescribed endorsements with all new and renewal policies. The requirements of the new regulation can be applied only to claims that arise under policies issued which include the new endorsement (policies issued or renewed on or after April 5, 2002).

In order for services to be reimbursable under No-Fault, such services must be medically necessary health services as enumerated under N. Y. Ins. Law § 5102 (McKinney 2000) and subject to the requirements of No-Fault Regulation 68, N.Y. Comp. Codes R. & Regs. tit. 11 § 65.15 (2002).

N. Y. Ins. Law § 5102 (McKinney 2000), which determines whether a particular service rendered or product purchased is a covered expense eligible for reimbursement under No-Fault, reads as follows:

All necessary expenses incurred for (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) and non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services…For the purpose of determining basis economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.

The category of "any other professional health services" covered under Section 5102(a)(1)(iv) is implemented under Regulation 68, 11 NYCRR 65.15(o)(vi) as follows:

The term any other professional health services, as used in section 5102(a)(1)(iv) of the Insurance Law, this Part and approved endorsements, shall be limited to those services that are required or would be required to be licensed by the State of New York if performed within the State of New York. Such professional health services should be necessary for the treatment of the injuries sustained and within the lawful scope of the licensee's practice. Charges for the services shall be covered pursuant to schedules promulgated under section 5108 of the Insurance Law and Part 68 of this Title (Regulation 83). The services need not be initiated through referral by a treating or practicing physician.

Based upon the foregoing, in order for a service rendered to constitute a reimbursable health service, it must fall under one of the enumerated categories included as expenses incurred pursuant to Section 5102(a)(i)(ii) and (iii), or it must fall under the category of "other professional health services" under Regulation 68. To be covered under this category, the service rendered must be a health service licensed under New York law and, when performed, such health service must fall within the lawful scope of the provider's license. See N.Y. Ins. Law § 5102(a)(1)(v) (McKinney 2000); 11 NYCRR 65.15(o)(vi)(2002).

The inquirer’s company is licensed by the New York State Department of Transportation to "Transit disabled persons". Such services do not constitute covered expenses incurred pursuant to § 5102(a)(1)(i), (ii), or (iii) or other "any other professional health services" as defined in § 5102(a)(1)(iv) and Regulation 68. Thus, the only possible reimbursement for ambulette services would be for "other reasonable and necessary expenses", up to twenty-five dollars per day. See N.Y. Ins. Law § 5102(a)(3) (McKinney 2000).

The other issue raised by the inquirer’s letter is whether an ambulette company may receive payment directly from a no-fault insurer pursuant to a assignment of benefits properly executed by the no-fault claimant. Prior to April 5, 2002 Regulation 68 permitted assignment to any "provider of services", making no distinction between providers based upon particular categories of reimbursable expenses. The revised Regulation 68 allows direct payments to be made to only to "providers of health care services". See Regulation 68, 11 NYCRR 65-3.11(a)(2002).

Accordingly, because it is not a "professional health service" pursuant to § 5102(a), if reimbursable as other reasonable and necessary expenses up to twenty-five dollars a day, ambulette service would have to be billed directly to the no-fault claimant, who would then seek reimbursement from the insurer.

To the extent that this opinion is inconsistent with earlier opinions of this Department, including Office of General Counsel Opinion No. 00-07-13 (July 21, 2000), those opinions are overruled.

For further information you may contact Associate Attorney Sam Wachtel at the New York City Office.

 

1 Medical Society of the State of New York v. Serio, 749 N.Y.S.2d 227 (App. Div. 1st Dept. 2002).