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

George E. Pataki
Governor

Howard Mills
Superintendent

The Office of General Counsel issued the following opinion on July 19, 2005, representing the position of the New York State Insurance Department.

Re: Chiropractors, Health Insurance.

Questions Presented:

1. Does New York have an Any Willing Provider (AWP) statute?

2. Are chiropractors considered Primary Care Physicians (PCP) in New York for health insurance purposes?

3. Does New York guaranty that chiropractors will be paid by insurance when doing physical therapy or rehabilitation work?

4. If a "clean" claim is not paid in a timely fashion, may the health care provider collect interest from the insurer?

Conclusions:

1. New York does not have an AWP statute.

2. A chiropractor could not be considered a PCP.

3. If the services provided are within the scope of practice of a chiropractor, they would be covered by insurance.

4. If a "clean" claim is not paid in a timely fashion, payment of interest would be required.

Facts:

Since this was a general question, no facts were provided.

Analysis:

Any Willing Provider Statute

In Kentucky Association of Health Plans v. Miller, 538 U.S. 329 (2003), the United States Supreme Court described AWP statutes:

Kentucky law provides that ‘[a] health insurer shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer, including the Kentucky state Medicaid program and Medicaid partnerships.’. Moreover, any ‘health benefit plan that includes chiropractic benefits shall . . . permit any licensed chiropractor who agrees to abide by the terms, conditions, reimbursement rates, and standards of quality of the health benefit plan to serve as a participating primary chiropractic provider to any person covered by the plan." . . .

538 U.S. at 331-32.

The Court decided that such AWP statutes were not preempted by the Employee Retirement Income Security Act, 29 U.S.C.A. § 1144(a) (West 1999).

However, New York does not have an AWP statute of any kind.

Chiropractors as Primary Care Physicians

Health Maintenance Organizations are defined in New York Public Health Law § 4401 (McKinney 2002):

1.’Health maintenance organization’ . . . means any person, natural or corporate, or any groups of such persons who enter into an arrangement, agreement or plan or any combination of arrangements or plans which propose to provide or offer, or which do provide or offer, a comprehensive health services plan.

2. ‘Comprehensive health services plan’ . . . means a plan through which each member of an enrolled population is entitled to receive comprehensive health services in consideration for a basic advance or periodic charge. A plan may include the provision of health care services which are covered by the organization at the election of enrollees by health care providers not participating in the plan pursuant to a contract, employment or other association to the extent authorized in section forty-four hundred six of this article; provided, however, that in no event shall an enrollee elect to have a non-participating provider serve as the enrollee's primary care practitioner responsible for supervising and coordinating the care of the enrollee.

The Department of Health has, by regulation, N.Y. Comp. Codes R. & Regs. tit. 10, § 98-1.2(t) (2001), defined "PCP":

Primary care practitioner means a physician or other licensed provider who supervises, coordinates and provides initial and basic care to enrollees and maintains continuity of care for enrollees.

The Insurance Department understands that the Department of Health does not include chiropractors within the definition of "Primary Care Practitioner". However, the Department of Health should be consulted for an interpretation of their regulation.

In addition to managed care provided by HMOs, some insurers may issue managed care contracts. New York Insurance Law § 4801(c) (McKinney 2000) defines the term:

a ‘managed care health insurance contract’ . . . shall mean a contract which requires that all medical or other health care services covered under the contract, other than emergency care services, be provided by, or pursuant to a referral from, a designated health care provider chosen by the insured (i.e. a primary care gatekeeper), and that services provided pursuant to such a referral be rendered by a health care provider participating in the insurer's managed care provider network. In addition, in the case of (i) an individual health insurance contract, or (ii) a group health insurance contract covering no more than three hundred lives, imposing a coinsurance obligation of more than twenty-five percent upon services received outside of the insurer's provider network, and which has been sold to five or more groups, a managed care product shall also mean a contract which requires that all medical or other health care services covered under the contract, other than emergency care services, be provided by, or pursuant to a referral from, a designated health care provider chosen by the insured (i.e. a primary care gatekeeper), and that services provided pursuant to such a referral be rendered by a health care provider participating in the insurer's managed care provider network, in order for the insured to be entitled to the maximum reimbursement under the contract.

The term "Primary Care Gatekeeper" is not defined in either the New York Insurance Law (McKinney 2000 and 2005 Supplement) or the regulations promulgated thereunder. The Insurance Department does not include chiropractors within the definition of "Primary Care Gatekeeper".

Insurance Coverage of Chiropractors

Section 1 of 1997 N.Y. Laws 426 sets forth the Legislative intent regarding insurance coverage of chiropractors:

The legislature recognizes that multiple health professions are trained and licensed to diagnose and treat the same or similar conditions through the use of modalities, therapies, services and philosophies that vary from profession to profession. It is the specific intent of this legislature to assure that health insurance policies, plans and contracts that provide coverage for the diagnosis and treatment of conditions, complaints, ailments, disorders or injuries by any health care profession, that may be diagnosed and treated by a doctor of chiropractic, must provide access to and equivalent coverage for the diagnosis and treatment of those conditions, complaints, ailments, disorders or injuries by a duly licensed doctor of chiropractic, within the lawful scope of chiropractic practice even if different terminology, philosophy, services, treatments or modalities are used by the various health professions; and such equivalent coverage shall not be abridged by any regulation heretofore promulgated or to be promulgated.

Among the substantive changes made by 1997 N.Y. Laws 426 was the enactment of New York Insurance Law §§ 3216(i)(21)(A) (McKinney 2000 and 2005 Supplement), regulating individual policies of commercial health insurers:

(A) Every policy which is a ‘managed care product’ . . . that provides coverage for physician services in a physician's office, and every policy which is a ‘managed care product’ that provides major medical or similar comprehensive-type coverage, shall include coverage for chiropractic care, as defined in section six thousand five hundred fifty-one of the education law, provided by a doctor of chiropractic licensed pursuant to article one hundred thirty-two of the education law, in connection with the detection or correction by manual or mechanical means of structural imbalance, distortion or subluxation in the human body for the purpose of removing nerve interference, and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column. However, chiropractic care and services may be subject to reasonable deductible, co-payment and co-insurance amounts, reasonable fee or benefit limits, and reasonable utilization review, provided that any such amounts, limits and review: (a) shall not function to direct treatment in a manner discriminative against chiropractic care, and (b) individually and collectively shall be no more restrictive than those applicable under the same policy to care or services provided by other health professionals in the diagnosis, treatment and management of the same or similar conditions, injuries, complaints, disorders or ailments, even if differing nomenclature is used to describe the condition, injury, complaint, disorder or ailment. Nothing herein contained shall be construed as impeding or preventing either the provision or coverage of chiropractic care and services by duly licensed doctors of chiropractic, within the lawful scope of chiropractic practice, in hospital facilities on a staff or employee basis.

New York Insurance Law § 3216(i)(21)(C) imposes an identical requirement with respect to non managed care insurance policies. In addition, New York Insurance Law §§ 3221(k)(11) (McKinney 2000 and 2005 Supplement), regulating group policies of commercial health insurers, and 4303(y) (McKinney 2000 and 2005 Supplement, regulating contracts of not-for-profit health insurers and all HMOs, contain similar requirements.

The scope of practice of a chiropractor is set forth in New York Education Law § 6551(1) (McKinney 2001):

The practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column

In accordance with New York Insurance Law §§ 3216(i)(21), 3221(k)(11), and 4303(y), if a procedure is within the scope of practice of a chiropractor, it would be covered.

Prompt Claim Payment

New York Insurance Law § 3224-a (McKinney 2000) provides:

In the processing of all health care claims submitted under contracts or agreements issued or entered into pursuant to articles thirty-two [individual policies of commercial health insurers], forty-two [group policies of commercial health insurers] and forty-three [contracts of not-for-profit health insurers] of this chapter and article forty-four of the public health law [contracts of HMOs] and all bills for health care services rendered by health care providers pursuant to such contracts or agreements, any insurer or organization or corporation licensed or certified pursuant to article forty-three of this chapter or article forty-four of the public health law shall adhere to the following standards: (a) Except in a case where the obligation of an insurer or an organization or corporation licensed or certified pursuant to article forty-three of this chapter or article forty-four of the public health law to pay a claim submitted by a policyholder or person covered under such policy or make a payment to a health care provider is not reasonably clear, or when there is a reasonable basis supported by specific information available for review by the superintendent that such claim or bill for health care services rendered was submitted fraudulently, such insurer or organization or corporation shall pay the claim to a policyholder or covered person or make a payment to a health care provider within forty-five days of receipt of a claim or bill for services rendered.

. . . .

(c) Each claim or bill for health care services processed in violation of this section shall constitute a separate violation. In addition to the penalties provided in this chapter, any insurer or organization or corporation that fails to adhere to the standards contained in this section shall be obligated to pay to the health care provider or person submitting the claim, in full settlement of the claim or bill for health care services, the amount of the claim or health care payment plus interest on the amount of such claim or health care payment of the greater of the rate equal to the rate set by the commissioner of taxation and finance for corporate taxes pursuant to paragraph one of subsection (e) of section one thousand ninety-six of the tax law or twelve percent per annum, to be computed from the date the claim or health care payment was required to be made. When the amount of interest due on such a claim is less then [than]  [n1] two dollars, an insurer or organization or corporation shall not be required to pay interest on such claim.

"Clean claim" is presumed to mean a situation in which the obligation of the insurer, or HMO, is reasonably clear. In accordance with New York Insurance Law § 3224-a(c), if such a claim is not paid within 45 days, the insurer or HMO would have to pay interest.

For further information you may contact Principal Attorney Alan Rachlin at the New York City office.