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 September 19, 2005 representing the position of the New York State Insurance Department.

RE: Utilization Review, Physical Therapist as Clinical Peer Reviewer

Question Presented:

May a physical therapist serve as a clinical peer reviewer under New York Insurance Law Article 49 (McKinney 2000) or New York Public Health Law Article 49 (McKinney 2002)?

Conclusion:

A physical therapist may meet the definition of a clinical peer reviewer utilized in New York Insurance Law § 4900(b)(1) (McKinney 2000) or New York Public Health Law § 4900(2)(a) (McKinney 2002).

Facts:

A physician specializing in physical medicine and rehabilitation submitted this inquiry. His patient’s mobility became limited as a result of a herniated disc. The patient is in pain and is being treated with Vicodin for the pain. The patient has been determined to be disabled by the Social Security Administration, but is not yet eligible for coverage under Medicare. According to the physician, in addition to a home exercise regimen, the patient should receive physical therapy once a week.

Determinations as to the necessity of physical therapy have been delegated by the patient’s insurer to a Utilization Review Agent which has registered with the Department of Health in accordance with New York Public Health Law § 4901 (McKinney 2002) and submits reports to the Insurance Department in accordance with New York Insurance Law § 4901 (McKinney 2000).

On January 6, 2005, the physician submitted a request for authorization of physical therapy. By letter of March 9, 2005, the Utilization Review Agent responded:

Should this patient have treatment needs that extend beyond January 6, 2005 or 1 visit if occurring before January 6, 2005, please submit updated clinical documentation and a new treatment plan. If we can be of any assistance with this case please contact your Support Clinician listed above.

The listed Support Clinician was a physical therapist.

On March 7, 2005, the physician submitted another request for authorization of physical therapy to the Utilization Review Agent. By letter of March 9, 2005, the Utilization Review Agent responded that the submission was incomplete, in that full clinical information had not been furnished. The letter continued:

The Support Clinician is available to discuss this case with the treating clinician. You have the right, by request, to receive a copy, free of charge, of the clinical review criteria used for making clinical determinations. Information regarding Appeal Rights is shown below or on the attached page.

There is a right to appeal an adverse determination. . . . .

The Support Clinician indicated on this letter was another physical therapist.

By letter of March 9, 2005, incorporating a partial copy of the patient’s clinical record, the physician complained to our Consumer Services Bureau (Bureau). The letter stated:

Complaints have been sent to [the Utilization Review Agent] and complaints against [one of its physical therapists] have been filed in the past with the insurance department. As per date the practice of a physical therapist prescribing care has not changed. Please note the denial is based on a review of a physical therapist. Please note the act of a physical therapist denying care of a medical doctor is the same as prescribing. This is against NYS Law, a physical therapist cannot prescribe. This practice appears ongoing since we have filed such complaints in the past.

By letter of March 28, 2005, the Utilization Review Agent, through its Chief Clinical Officer, Physical Therapy, a physical therapist, responded to the physician concerning his complaint to the Bureau and indicated:

[This Utilization Review Agent] is a licensed utilization review agent in the State of New York. As such, it is in compliance with all laws and regulations governing clinical peer reviewers as outlined in public health law and insurance law. Our support clinicians are healthcare professionals and maintain current, valid nonrestricted licenses in the State of New York. They review cases in which the healthcare provider is one who also typically manages the medical condition or disease and/or provides the healthcare services or treatment which is under review. In the case in question the healthcare provider of service is a Physical Therapist and the service provided is physical therapy. Therefore, the support clinician conducting that review is also a licensed Physical Therapist and is a healthcare professional who provides physical therapy.

By letter of March 29, 2005, the insurer furnished the Bureau with the Utilization Review Agent’s March 28, 2005 letter to the physician as its response to the complaint.

By letter of April 8, 2005, the physician forwarded the Utilization Review Agent’s March 28, 2005 letter to the Bureau in supplement to the March 9, 2005 complaint. The letter further indicated:

Please note the letter is addressed to [You], and the reviewing professional is a physical therapist who, by law, is restricted from prescribing. Therefore, to clarify their statement ‘non-restricted license’ would mean within the limitations of the physical therapist’s license.

By letter of April 28, 2005, the Bureau forwarded the insurer’s March 29, 2005 letter to the physician and expressed the hope that this would resolve the matter. By letter of May 2, 2005, the physician responded to the Bureau’s April 28, 2005 letter. In addition to reiterating the statements in his April 8, 2005 letter, the physician indicated:

The physical therapist does not determine the course of treatment in this office since it is against the law for her to prescribe. This is why the patient is examined by a Medical Doctor in this office for determination of a treatment plan and diagnosis. [Named Physical Therapists] are physical therapists, is practicing Medicine when he prescribes and alters a Medical Doctors prescription.

By letter of May 9, 2005, the Bureau indicated to the physician that it was the Department’s current position that a physical therapist meets the statutory definition of a "clinical peer reviewer" and thus that the insurer had acted properly. By letter of May 17, 2005, the physician reiterated his earlier arguments.

Analysis:

New York Insurance Law § 4900(h) defines utilization review:

‘Utilization review’ means the review to determine whether health care services that have been provided, are being provided or are proposed to be provided to a patient, whether undertaken prior to, concurrent with or subsequent to the delivery of such services are medically necessary. . . .

New York Insurance Law 4900(i) defines utilization review agent:

‘Utilization review agent’ means any insurer subject to article thirty-two or forty-three of this chapter performing utilization review and any independent utilization review agent performing utilization review under contract with such insurer.

New York Insurance Law § 4903(a) (McKinney 2000) provides:

Utilization review shall be conducted by: (1) Administrative personnel trained in the principles and procedures of intake screening and data collection, provided however, that administrative personnel shall only perform intake screening, data collection and non-clinical review functions and shall be supervised by a licensed health care professional; (2) A health care professional who is appropriately trained in the principles, procedures and standards of such utilization review agent; provided, however, that a health care professional who is not a clinical peer reviewer may not render an adverse determination . . . .

New York Insurance Law § 4900(a) defines adverse determination:

‘Adverse determination’ means a determination by a utilization review agent that an admission, extension of stay, or other health care service, upon review based on the information provided, is not medically necessary.

New York Insurance Law § 4900(b) defines a clinical peer reviewer:

‘Clinical peer reviewer’ means: (1) for purposes of title one of this article [internal review]: (A) a physician who possesses a current and valid non-restricted license to practice medicine; or (B) a health care professional other than a licensed physician who: (i) where applicable, possesses a current and valid non-restricted license, certificate or registration or, where no provision for a license, certificate or registration exists, is credentialed by the national accrediting body appropriate to the profession; and (ii) is in the same profession and same or similar specialty as the health care provider who typically manages the medical condition or disease or provides the health care service or treatment under review . . . . (emphasis added).

New York Public Health Law Article 49 has identical provisions, except that New York Public Health Law § 4900(9) defines a utilization review agent:

‘Utilization review agent’ means any company, organization or other entity performing utilization review, except: (a) an agency of the federal government; (b) an agent acting on behalf of the federal government, but only to the extent that the agent is providing services to the federal government; (c) an agent acting on behalf of the state and local government for services provided pursuant to title XIX of the federal social security act; (d) a hospital's internal quality assurance program except if associated with a health care financing mechanism; or (e) any insurer subject to article thirty-two or forty-three of the insurance law and any independent utilization review agent performing utilization review under a contract with such insurer, which shall be subject to article forty-nine of the insurance law.

New York Education Law § 6731 (McKinney 2001 defines the practice of physical therapy:

Physical therapy is defined as: a. The evaluation, treatment or prevention of disability, injury, disease, or other condition of health using physical, chemical, and mechanical means including, but not limited to heat, cold, light, air, water, sound, electricity, massage, mobilization, and therapeutic exercise with or without assistive devices, and the performance and interpretation of tests and measurements to assess pathophysiological, pathomechanical, and developmental deficits of human systems to determine treatment, and assist in diagnosis and prognosis.

. . .

c. Such treatment shall be rendered pursuant to a referral which may be directive as to treatment by a licensed physician, dentist podiatrist or nurse practitioner and in accordance with their diagnosis.

Accordingly, since a physical therapist is in the same profession as one who typically provides the health care service or treatment under review, New York Insurance Law § 4900(b)(1)(B)(ii) and New York Public Health Law § 4900(2)(a)(ii)(B), and is a health care professional as defined in New York Insurance Law

§ 4900(f) and New York Public Health Law § 4900(6), it is our belief that a physical therapist employed by an insurer could serve as a clinical peer reviewer. Therefore, based upon the facts presented, it appears that the Utilization Review Agent, through its employed physical therapists, did not act improperly.

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