The office of General Counsel issued the following informal opinion on January 26, 2000, representing the position of the New York State Insurance Department.
Re: Regulation 68 Amendment
Does the newly promulgated Regulation 68, effective for all new and renewal policies issued after February 1, 2000 prohibit the assignment of No-Fault benefits for health related services to non-state licensed providers of such services when there is no state licensing requirement?
There is no prohibition in the amended provisions of Regulation 68 against an assignment of No-Fault benefits to a non-state licensed provider of health services when there is no statewide licensing requirements for the provision of those services.
Facts & Analysis:
Prior to its revision Regulation 68, with respect to the assignment of benefits, provided as follows:
An insurer shall pay benefits for any elements of loss or upon assignment by the applicant or any of the aforementioned persons, shall pay providers of services
N.Y.Comp. Codes R. & Regs. tit. 11 §65.15(j)(I) (1999)
This section was replaced by §65-3.11; the operative effect was to substitute the earlier language with:
An insurer shall pay benefits for any element of loss or, upon assignment by the applicant or any of the aforementioned persons, shall pay the state licensed providers of health care services
Id., at §65-3.11
The purpose in referencing in the words "state licensed" before "providers of health care services" was to clarify explicitly that which had been required without specificity, which is that when a provider of health benefits is given an assignment by an eligible injured person and becomes the claimant for purposes of reimbursement for covered services (i.e. medically necessary services), that assignee must be adhere to all applicable New York statutes which grant the authority to provide health services in New York State. That includes all instances where a state license is required by an individual to perform a health-related service, as well as all instances where a person or corporate entity must be properly licensed to perform services, so as not to engage in the corporate practice of medicine.
This provision in no way restricts an authorized entity which performs health-related services from receiving an assignment of No-Fault benefits when there is no applicable state licensing requirement. Of course, if a locality requires licensing (such as in New York City, where the Department of Consumer Affairs requires sellers of durable medical supplies to be licensed) the assignee must be licensed in that jurisdiction in order to be reimbursed for services provided.
For further information you may contact Supervising Attorney Lawrence Fuchsberg at the New York City Office.