New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on January 13, 2003, representing the position of the New York State Insurance Department.

RE: No-Fault Assignment of Benefits 11 NYCRR § 65 (Regulation 68).

Questions Presented:

1. May a physician that has accepted a no-fault assignment of benefits from a no-fault claimant pursue the patient directly for payment if the no-fault carrier denies payment for services based upon a determination that the services were not medically necessary?

2. May a physician that has accepted a no-fault assignment of benefits from a no-fault claimant pursue the patient directly for payment if the no-fault carrier denies payment for services based upon a determination that the services were not medically necessary where the physician also obtained a lien form from the no-fault claimant?

Conclusions:

1. No. Such action by the doctor would be prohibited under the No-Fault assignment of benefits language contained in claim forms required by N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.11(b)(ii) & (iv) (2002) (Regulation 68-C).

2. No. Even if the physician obtained a lien form from the no-fault claimant, it would still be prohibited from pursuing reimbursement directly from the claimant by the assignment of benefits language contained in claim forms required by N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.11(b)(ii) & (iv) (2002) (Regulation 68-C).

Facts:

The inquirer requested an advisory opinion not related to any specific fact situation. Particular circumstances could alter the responses set out above. The inquirer was directed to contact this Department in the future with the details of any specific matter that may arise.

Analysis:

N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.11(b)(ii) & (iv) (2002) (Regulation 68-C) states:

(b) In order for a health care provider . . . to receive direct payment from the insurer, the health care provider . . . must submit to the insurer: (ii) for a health care provider, a properly executed assignment on the prescribed Verification of Treatment by Attending Physician or Other Provider of Service form (NYS Form NF-3) . . . or (iv) the prescribed No-Fault Assignment of Benefits form (NYS Form NF-AOB) contained in Appendix 13 . . . .

Whether Form NF-3 or Form NF-AOB, or both, are used with respect to a no-fault claim, the provider would be prohibited from pursuing reimbursement directly from the claimant.

The relevant language of NYS Form NF-3 under item 21 concerning assignment of no-fault benefits to a health care provider states:

I HEREBY ASSIGN TO THE HEALTH CARE PROVIDER INDICATED BELOW ALL RIGHTS, PRIVILEGES AND REMEDIES TO PAYMENT FOR HEALTH CARE SERVICES PROVIDED BY THE ASSIGNEE TO WHICH I AM ENTITLED UNDER ARTICLE 51 (THE NO-FAULT STATUTE) OF THE INSURANCE LAW. THE ASSIGNEE HEREBY CERTIFIES THAT THEY HAVE NOT RECEIVED ANY PAYMENT FROM OR ON BEHALF OF THE ASSIGNOR AND SHALL NOT PURSUE PAYMENT DIRECTLY FROM THE ASSIGNOR FOR SERVICES PROVIDED BY SAID ASSIGNEE FOR INJURIES SUSTAINED DUE TO THE MOTOR VEHICLE ACCIDENT, NOTWITHSTANDING ANY PRIOR WRITTEN AGREEMENT TO THE CONTRARY. THIS AGREEMENT MAY BE REVOKED BY THE ASSIGNEE WHEN BENEFITS ARE NOT PAYABLE BASED UPON THE ASSIGNOR'S LACK OF COVERAGE AND/OR VIOLATION OF A POLICY CONDITION DUE TO THE ACTIONS OR CONDUCT OF THE ASSIGNOR.

The relevant language of NYS Form NF-AOB (Assignment of Benefits Form for accidents occurring on or after 3/1/02) concerning assignment of No-Fault benefits to a health care provider states:

I . . . "Assignor" hereby assign to . . . "Assignee" . . . all rights privileges and remedies to payment for health care services provided by assignee to which I am entitled under Article 51 (the No-Fault statute) of the Insurance Law . . . The Assignee hereby certifies that they have not received any payment from or on behalf of the Assignor and shall not pursue payment directly from the Assignor for services provided by said Assignee for injuries sustained due to the motor vehicle accident . . . notwithstanding any prior written agreement to the contrary . . . This agreement may be revoked by the assignee when benefits are not payable based upon the assignor's lack of coverage and/or violation of a policy condition due to the actions or conduct of the assignor.

Regardless of which form is utilized, the above-referenced assignment language precludes the assignee health care provider from pursuing payment from the assignor (no-fault claimant) where the insurer has rejected the claim based upon a determination that the care or services were not medically necessary. Even if the health care provider has obtained a lien form from the no- fault claimant, it may not pursue payment for the health services directly from the claimant.

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