|George E. Pataki
Gregory V. Serio
The Office of General Counsel issued the following informal opinion on December 30, 2002, representing the position of the New York State Insurance Department.
Re: No-Fault Benefits Pre-Approval of Biofeedback
Is the Workers Compensation Boards fee schedule requirement that a licensed health provider must obtain pre-authorization for biofeedback services as a condition precedent to Workers Compensation coverage for the payment of benefits, also applicable to claims made for biofeedback services under the No-Fault reparations system?
No, pursuant to N.Y. Comp. Codes R. & Regs. tit. 11, § 68 ("Regulation 83").
The Superintendent of Insurance has been empowered by the Legislature to promulgate regulations to implement N.Y. Ins. Law Article 51 (McKinney 2000) ("the No-Fault law"). N.Y. Ins. Law §§ 5108(a) and (b) require that fees for No-Fault health services provided should be those established under the Workers Compensation Fee Schedule. In order to implement this requirement, the Superintendent has promulgated N.Y. Comp. Codes R. & Regs. tit. 11, § 68 (Regulation 83). Therefore, pursuant to Regulation 83, the Superintendent has adopted the Workers Compensation Boards fee schedules to establish charges for health services under No-Fault, and has also adopted the appropriate Workers Compensation rules governing reimbursement for health services provided in connection with No-Fault claims.
The fee schedule requirements for reimbursement of biofeedback rendered as a physical medicine treatment is contained within Rule 1 of the Workers Compensation Boards Medicine Fee Schedule, and the fee schedule requirements for reimbursement of biofeedback rendered as a psychological treatment is contained within Rule 1 of the Workers Compensation Boards Psychology Fee Schedule. One of the fee schedule requirements contained in both rules is that the health service provider must obtain pre-authorization from the Workers Compensation insurer as a condition precedent for the payment of benefits. The Legislature chose to include pre-authorization requirements under the Workers Compensation Law, which requirements are not included under the No-Fault law. Although the Superintendent has adopted the Workers Compensation Boards fee schedules for use in connection with No-Fault claims, the pre-authorization requirement is inapplicable to No-Fault claims under Regulation 83, based upon Section 68.1(b), which provides in part as follows:
The general instructions and ground rules in the Workers Compensation Medical Fee Schedule apply. However, those rules which refer to workers compensation claim forms, preauthorization approval, and dispute resolution guidelines do not apply, unless specified in this Part. (Emphasis added)
Therefore, while the Workers Compensation fee schedule requirements include pre-authorization for biofeedback and several other health services for workers compensation claims, such authorization is not applicable under the No-Fault law, as per Regulation 83.
Notwithstanding the foregoing, in order for biofeedback to be reimbursable under No-Fault, such service must be a medically necessary health service provided by a licensed health care provider, as enumerated under N.Y. Ins. Law § 5102 (McKinney 2002) and subject to the applicable claims procedure requirements of Regulation 68, Section 65-3, as well as the appropriate rules under Regulation 83.
For further information you may contact Supervising Attorney Lawrence M. Fuchsberg at the New York City Office.