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 October 29, 2003, representing the position of the New York State Insurance Department.

RE: No-Fault Billing for Services Provided at Hospitals by Independent Contractors

QUESTION PRESENTED:

May a hospital bill for and receive No-Fault benefits for health services provided to a patient on a hospital’s premises, when the treating health providers are not employees of the hospital, but contract with the hospital as independent contractors in order to provide services on the hospital premises, such as in an emergency room?

CONCLUSION:

No. Only the treating provider of health services may bill for and receive No-Fault benefits for services provided to a patient when the provider is an independent contractor of the hospital.

FACTS PRESENTED:

A person injured in an automobile accident is treated in a hospital emergency room by a neurosurgeon or orthopedist. In the situation described, neither health provider is employed by the hospital but has contracted with the hospital to perform services on hospital premises as an independent contractor of the hospital. The hospital wishes to bill the No-Fault insurer for the services performed as the named provider of services and to receive benefits directly from the insurer.

ANALYSIS:

Pursuant to N.Y. Comp. Codes R. & Regs. tit 11 § 65-3.11(a)(2003), with respect to direct payments, "An insurer shall pay benefits for any element of loss, other than death benefits, directly to the applicant…or, upon assignment by the applicant…shall pay benefits directly to providers of health care services….".

Under this provision, a hospital may bill for medical services rendered by properly licensed employees of the hospital. The same is not true for licensed health providers who treat patients on the premises of the hospital as independent contractors of the hospital. An independent contractor is construed to be "[o}ne who, in exercising an independent employment, contracts to do certain work according to his or her own methods, and without being subject to the control of the employer..". G.D. Serle & Co. v. Medicore Communications, Inc. 843 Fed. Supp. 893 (S.D.N.Y. 1994). Therefore, a health care provider performing health services as an independent contractor affiliated with the hospital is limited to billing for those services in his or her name.

When such services are provided by an independent contractor affiliated with a hospital, the hospital is not entitled to receive reimbursement under the No-Fault law since it is not deemed to be the licensed provider of those services. The hospital may, however, bill the insurer on behalf of the independent contractor as an administrative convenience, so long as the billing is done on behalf and in the name of the independent contractors performing services on the hospital premises.

For further information you may contact Supervising Attorney Lawrence M. Fuchsberg at the New York City Office.