How Billing Processes of Florida Medical Providers for PIP Claims are Affected by the Thirty Third Amendment to Regulation 83 Under New York-Based Insurance Policies

The New York State Department of Financial Services (“DFS’) has finalized the Thirty-Third Amendment to Regulation 83 (the “33rd Amendment”), which was published in the State Register on October 25, 2017 and will affect treatment rendered on or after January 23, 2018. Pursuant to the accompanying press release, the 33rd Amendment is designed to “limit the amount that insurers can reimburse for healthcare services performed outside of New York State under its no-fault insurance law.”[1] By limiting reimbursement amounts for out-of-state no-fault healthcare services, which are treating New York State (“NYS”) residents, the DFS intends to “curb costs and abuses” by out-of-state medical providers charging excessive rates.[2].

Regulation 83, governing the reimbursement of out-of-state providers, previously provided that:

“If a professional health service is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider.” (11 NYCRR § 68.6).

The case of Surgicare Surgical Assoc. v National Interstate Ins. Co., 2014 WL 6610048, 2014 N.Y. Slip Op. 24362) (Anthony Cannataro, J.), provides a good example of an out-of-state provider seeking reimbursement at an exorbitant rate, diminishing the coverage available to the insured for other medically necessary services. There, the provider performed arthroscopic surgery on a covered person in New Jersey and submitted a claim for reimbursement under the applicable New York No-fault policy. Although the state of New Jersey has a fee schedule that applies to the reimbursement of medical services under the New Jersey’s No-fault law, the provider submitted a bill to the insurer for approximately $5,000 more than the amount it would have been reimbursed had the claim involved a New Jersey auto policy and as a result, was governed by the New Jersey fee schedule. The insurer reimbursed the amount permitted under the New Jersey fee schedule, essentially maintaining that, pursuant to Regulation 83, the New Jersey fee scheduled reflected the permissible amount in the geographic area. The provider sued for the difference. After discussing the applicable regulations and policy considerations behind the enactment of the New York No-fault law, including the legislative intent of cost containment, a New York City Civil Court judge held that, “when services are rendered outside of New York but in a jurisdiction which utilizes a fee schedule, the insurer complies with Section 68.6 by paying the ‘permissible’ charge for that particular medical service, that is, the amount permitted by that jurisdiction’s fee schedule.” The provider appealed and the Appellate Term affirmed. See Surgicare Surgical Assoc. v National Interstate Ins. Co., 2015 NY Slip Op 25338 (App. Term 1st Dept. 2015).

In other instances, the amount sought by out-of-state providers has been tens of thousands of dollars above the amount that would be permitted under the New York Fee Schedule. Recognizing the potential for fraud and abuse, the Amendment provides an effective solution to the exploitation of the No-fault system by out-of-state providers and, adopts, to some extent, the holding in Surgicare and, by regulation, strengthens the limits placed on reimbursement of such providers. Specifically, the Amendment states:

11 NYCRR 68.6: Health services performed outside New York State

(a)(1) If a professional health service reimbursable under [section 5102(a)(1) of the] Insurance Law section 5102(a)(1) is performed outside this State, the amount that the insurer shall reimburse for the service shall be the lower of the amount charged by the provider and the prevailing fee in the geographic location of the provider with respect to services:

(i) that constitute emergency care;

(ii) provided to an eligible injured person that is not a resident of this State; or

(iii) provided to an eligible injured person that is a resident of this State who, at the time of treatment, is residing in the jurisdiction where the treatment is being rendered for reasons unrelated to the treatment.

(2) For purposes of this subdivision, emergency care means all medically necessary treatment initiated within 48 hours of a motor vehicle accident for a traumatic injury or a medical condition resulting from the accident, which injury or condition manifests itself by acute symptoms of sufficient severity such that absence of immediate attention could reasonably be expected to result in: death; serious impairment to bodily functions; or serious dysfunction of a bodily organ or part.  Medically necessary treatment shall include immediate pre-hospitalization care, transportation to a hospital or trauma center, emergency room care, surgery, critical and acute care.  Emergency care extends during the period of initial hospitalization until the patient is discharged from the hospital.

(b) Except as provided in subdivision (a) of this section, if a professional health service reimbursable under Insurance Law section 5102(a)(1) is performed outside this State with respect to an eligible injured person that is a resident of this State, the amount that the insurer shall reimburse for the service shall be the lowest of:

(1) the amount of the fee set forth in the region of this State that has the highest applicable amount in the fee schedule for that service;

(2) the amount charged by the provider; and

(3) the prevailing fee in the geographic location of the provider.

(c) If the jurisdiction in which the treatment is being rendered has established a fee schedule for reimbursing health services rendered in connection with claims for motor vehicle-related injuries and the fee schedule applies to the service being provided, the prevailing fee amount specified in subdivisions (a) and (b) of this section shall be the amount prescribed in that jurisdiction’s fee schedule for the respective service.

The 33rd Amendment separates treatment by out-of-state medical providers into the following two categories:

  1. Out-of-state medical services, which (a) constitute emergency care[3], (b) are provided to non-NYS residents, and (c) are provided to patients with a NYS domicile, who are currently living in the state where the treatment is being rendered, for reasons unrelated to the accident.
  2. Out-of-state medical services provided to a NYS resident, currently living in NYS.

There is one main difference between the two categories – which State’s no-fault fee schedule governs and must be utilized by the insurer when reimbursing the medical provider. Simply put, if the medical services fall into Category 1, the medical provider’s reimbursement will be capped at the No-Fault Schedule rate for the State and region wherein the services are provided. By contrast, if the medical services fall into Category 2, the medical provider’s reimbursement will be capped at the highest rate available under the New York State No-Fault Fee Schedule unless the State where the treatment is being rendered has an established fee schedule for claims related to motor vehicle-related injuries.

As such, section (c) of 11 NYCRR 68.6 would apply to medical services rendered in Florida as there is an established set of fee schedules within the Florida No-Fault Law. While the foregoing may be the general rule, there are nuances requiring attention.

The reimbursement rate for medical services is now capped at the prevailing fee in the geographical location of the provider unless the provider charges less. Thus, the 33rd Amendment now limits the prevailing geographical rate to that area’s local No-Fault Fee Schedule Rate. In other words, if x-ray services are performed in Miami, Florida the provider’s reimbursement is limited to the schedule of maximum charges as listed in the Florida No-Fault law for that geographical region (Miami) (i.e, 200% of Medicare Part B).

The medical providers and insurers also need to be familiar with the amendment’s definition of what constitutes “emergency care”’ and how it relates to reimbursement.

Example 1: If a person is transported to the Hospital as a result of a motor vehicle accident in Florida and that person lives in Florida but is covered by a New York policy, then that Hospital provider’s charges would be limited to 75% of the usual and customary charge pursuant to the Florida No-Fault Law’s schedule of maximum charges. Moreover, the emergency services doctor would be paid at its usual and customary charge which is generally the submitted charge.

Example 2: Compare to the facts that this same individual is involved in a motor vehicle accident in Florida on January 1, 2019 and is not transported to the Hospital. However, three days later they decide to go to the emergency room due to having neck and back pain related to the accident. Would these Hospital and physician services now be considered “emergency care”?  Under this amendment, it would not because the treatment was not initiated within 48 hours following the accident.

Now further compare these facts with the applicable schedule of maximum charges under Florida Statute §627.736(5) (2018) which states in pertinent part:

The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.

b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.

c. For emergency services and care as defined by s. 395.002 provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.

d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.

e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.

In the situation listed in Example 2, the patient’s condition would not be considered “emergency care” and thus, payment would be made at 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services or 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.

Conclusion

In order to maximize recovery without running afoul of the new fee schedule mandates of the 33rd Amendment, Florida medical providers treating patients covered by New York No-Fault policies must be cognizant of whether the service rendered meets the definition of “emergency care.” What this amendment does clarify is that if medical services are rendered in Florida under a PIP claim brought under a New York policy, then the maximum amount to be paid to the medical providers for these services would be limited to Florida’s schedule of maximum charges.

[1] Press Release, posted October 10, 2017, http://www.dfs.ny.gov/about/press/pr1710101.htm

[2] Id.

[3] Under the 33rd Amendment, in order to constitute emergency care, the treatment must be initiated within 48 hours of the motor vehicle accident.

This article is not intended to create an attorney-client relationship by offering this information, and anyone’s review of the information shall not be deemed to create such a relationship. The content provided is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. You should consult a lawyer with regard to specific law issues that require attention.

For additional information, please contact Stephen Mellor of Roig Lawyers at 954-354-1541 or by email at smellor@roiglawyers.com. Stephen G. Mellor is a partner in the Deerfield Beach office of Roig Lawyers who primarily focuses on out-of-state policy claims for insurance carriers. 

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Filed under Personal Injury Protection, PIP, Uncategorized

Survey Finds More Insurers Fighting Fraud with Data Analytics

According to a survey by Coalition Against Insurance Fraud, insurers are turning to analytics to fight insurance fraud which they believe is on the rise. Of the 84 carriers surveyed, 65% reported an increase in fraud over the past three years, 10% said fraud decreased and 25% said it remained the same.

Survey results also say that 21% of the carriers plan to invest in artificial intelligence. There has also been an increase in the use of unstructured data.

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Accused Fraudster Uses Delay Taxes While Victims Continue to Pay

According to the Federal Trade Commission, accused health insurance scammer Stephen J. Dorfman, CEO of Hollywood-based Simple Health Plans LLC, is using “procedural maneuvers” to delay turning over his firm to a court-appointed receiver, giving customers an opportunity to cancel their “worthless” insurance policies.

Dorfman and his company are being accused of duping customers into buying what they thought were comprehensive health insurance plans. Many of them are still paying millions of dollars a month for a product comprised of worthless discount plans and limited-benefit hospital indemnity coverage that pays no more than $3,200 a year.

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Orlando Woman Arrested for Arson and Burning to Defraud

Tondra Shenika Roberts was arrested for allegedly setting her car on fire on Christmas Eve. According to police reports, Roberts said the vehicle was supposed to be repossessed and she left the keys inside in case someone showed up to take it.

Investigators found the key in the ignition of the abandoned car as well as a box of matches on the driver’s seat and an empty Heineken bottle with a paper towel inside of it. Lab reports from the car came back positive for gasoline. Roberts said she filed an insurance claim for the damage.

Roberts is facing felony charges of arson and burning to defraud an insurer.

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Boynton Beach Man Accused of Selling Fake License Plates and Insurance Cards

Fedelin Pericles also known as “The Tag Man” was arrested by undercover officers after selling them fake temporary tags and a false insurance card. An anonymous tipster gave detectives Pericles’ phone number and told them that he was providing fraudulent temporary tags for $60 and insurance cards for $100.

On three occasions “The Tag Man” sold three undercover officers two temporary licenses and one fake insurance card. Pericles’ charges include counterfeiting a motor vehicle registration, falsifying records, uttering a forged instrument, organized fraud and driving with a suspended license.

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Stuart OB/GYN Found Guilty in Health Insurance Fraud Scheme

A federal court jury found Dr. Sheetal Kanar Kumar, former Stuart obstetrician and gynecologist, guilty of 23 counts of health insurance fraud. Kumar faces up to 10 years in prison and fines of $250,000 for each charge as a result of her fraudulent claims to Medicare, Medicaid and Blue Cross Blue Shield. Kumar’s claims involved charges for patient office visits involving complex cystometrogram, anorectal manometry, uroflowmetry and voiding pressure studies.

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Ten People Arrested in $42.7 M Insurance Fraud Scheme

Florida Department of Financial Services detectives arrested ten people for using 15 fake clinics to submit 23,000 fraudulent claims totaling $42.7 million. They used fake clinics as drop boxes for insurance payments. Four more arrests are pending with the alleged ring leader, Jorge Valido, still on the run. He previously served time in prison for healthcare fraud.

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Drone and Aerial Imagery Key in the Wake of 2018 Natural Disasters

According to the Insurance Journal, drones and aerial imagery have become very important to the insurance industry as a result of natural catastrophes, particularly in the southeast region of the U.S. Drones allowed insurers to capture the impact of our most recent hurricanes and immediately get to work as claims poured in.

The use of drone imagery of the impacted hurricane areas increased by eight times between mid-August and mid-October 2018 compared with the same period in 2017.

It has become an integral part of claim handlers’ workflow along with the other processes that are already in place.

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Filed under Insurance Claims

Physical Assistant Pleaded Guilty for Role in $1B Medicare Fraud Scheme

Arnaldo Carmouze, a former physician assistant, is facing up to 10 years in prison time for his role in a Medicare fraud scheme. Carmouze was one of three defendants who pleaded guilty to conspiracy to commit healthcare fraud while working for a network of skilled nursing homes and assisted living facilities. The scheme involved admitting Medicare and Medicaid patients to these homes and facilities even if they did not qualify for placement and giving them unnecessary medical care as well as referring patients to certain healthcare providers for kickbacks. In addition to prison time, Carmouze is also facing a fine up to $250,000 and three years of supervised release for his role in the $1 billion Medicare fraud scheme.

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Kendall Man Arrested for Bogus Boat Accident Insurance Claim

Florida Department of Financial Services Bureau of Insurance Fraud investigators arrested Jose Alberto Vargas for allegedly attempting to defraud Boat U.S. out of $14,000. Vargas filed a false claim for a grounded 1993 Mako boat and willfully deceived his insurance company and submitted misleading information regarding the ownership, dates and damage to his boat.

Vargas submitted his false claim on May 31, 2015, a few days after a mechanic saw Vargas’ boat at Tavernier Creek Marina and found that the engine was full of water and one cylinder was bad. Investigators also found that Vargas’ father was the owner of the boat at the time of the “accident” and did not transfer ownership to his son until August of that year.

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