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 April 1, 2003, representing the position of the New York State Insurance Department

No-Fault claim for physical therapy services performed outside of the United States

Question Presented

Must a health service provider who provides physical therapy services outside of New York State to an eligible injured person, arising from an accident in New York, be licensed to perform such services in order to be entitled to reimbursement from the No-Fault insurer?

Conclusion

Yes. In order for the cost of health services to be reimbursable under the New York No-Fault law, the health service provided must be one that is required to be licensed by New York State if performed within New York State. Therefore, the provider of such health services outside of New York must be licensed to perform the services provided to the eligible injured person.

Facts

One of the inquirer’s clients is a Guatemalan citizen who was involved in a motor vehicle accident while in New York State. As a result of the accident, he received medical treatment and physical therapy. Recently, the client was examined by the No-Fault insurer’s doctor in New York whose report approved further physical therapy for his medical condition. The client will be returning home to Guatemala soon and therefore, he will receive physical therapy services in Guatemala. The No-Fault insurer has indicated that they will provide coverage for physical therapy services performed by therapists who are licensed by New York State or another state, but that they are not required to provide No-Fault benefits if the physical therapist is unlicensed. However, the No-Fault insurer has indicated to the inquirer that they are not familiar with their obligations to pay for physical therapy services performed in another country where a physical therapist might not be required to hold a license in order to perform physical therapy. The inquirer has not submitted any factual documentation as to any requirements necessary under Guatemalan law.

Analysis

Under the New York No-Fault law a covered person under an insurance policy providing No-Fault coverage is covered for basic economic loss as defined in N.Y. Ins. Law § 5102(a) (McKinney 2000). Whether a particular service rendered or product purchased is a covered expense eligible for reimbursement under No-Fault is governed by § 5102(a)(1) 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) any 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 § 5102(a)(1)(iv) is implemented under Regulation 68-C, N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.16(a)(6), 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.

Accordingly, all providers of physical therapy services must be licensed. However, the required No-Fault coverage for elements of basic economic loss as to health services does not contain any geographical limitation as to where the services may be rendered. As long as the services are medically necessary and necessitated by the motor vehicle accident upon which No-Fault coverage is afforded, physical therapy services, wherever they are performed, are reimbursable by the No-Fault insurer for covered persons when the health care provider is licensed to perform such services. Therefore, when the covered person, the inquirer’s client, returns home to Guatemala, the costs of his necessary physical therapy treatments which are performed there by a person who is licensed in Guatemala to perform physical therapy services are reimbursable by the No-Fault insurer.

As to the amount of the reimbursement, where the health services are provided outside of New York State, the physical therapy fee schedule adopted by the Superintendent pursuant to N.Y. Ins. Law § 5108(b) is inapplicable. N.Y. Comp. Codes R. & Regs. tit. 11, § 68.6 (2002) ("Regulation 83") governs and, in this regard, it provides as follows:

§ 68.6 Health services performed outside New York State.

If a professional health service reimbursable under section 5102(a)(1) of the Insurance Law is performed outside New York State, the permissible charge for such services shall be the prevailing fee in the geographic location of the provider.

Therefore, the No-Fault insurer may require that the provider be appropriately licensed to render the health services provided. The dollar amount of the reimbursement for physical therapy services (or other professional health services) performed on an eligible injured person under a New York No-Fault insurance policy in Guatemala is determined by the permissible cost for such services in Guatemala.

For further information you may contact Associate Attorney Barbara A. Kluger at the New York City Office.