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

David A. Paterson
Governor

Eric R. Dinallo
Superintendent

OGC Op. No. 09-02-06

The Office of General Counsel issued the following opinion on February 20, 2009, representing the position of the New York Insurance Department.

Re: Frequency Rules for No-Fault Durable Medical Equipment Fee Schedule

Question Presented:

Do the frequency rules found in the New York State Medicaid program also apply to no-fault claims?

Conclusion:

Yes, the frequency rules found in the New York State Medicaid program also apply to no-fault claims.

Facts:

The inquiry is of a general nature, without reference to particular facts.

Analysis:

N.Y. Ins. Law § 5108(a) (McKinney 2000) is relevant to the inquiry. That statute, which limits charges by providers of health services, provides that:

The charges for services specified in paragraph one of subsection (a) of section five thousand one hundred two of this article and any further health service charges which are incurred as a result of the injury and which are in excess of basic economic loss, shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge. (Emphasis added.)

Furthermore, N.Y. Comp. Codes R. & Regs. tit. 11, pt. 68 (Regulation 83) adopts certain fee schedules of the Workers’ Compensation Board (“WCB”) for purposes of the no-fault insurance law. Section 68.1(a) of the regulation reads in pertinent part:

The existing fee schedules prepared and established by the chairman of the Workers’ Compensation Board for industrial accidents are hereby adopted by the Superintendent of Insurance with appropriate modification so as to adapt such schedules for use pursuant to the provisions of section 5108 of the Insurance Law.

Any charges for health services submitted for reimbursement under the no-fault law are thus subject to the fee schedules put forth by the WCB. The workers’ compensation regulation concerning durable medical equipment (“DME”) in turn adopts the New York State Medicaid fee schedule in 12 N.Y.C.R.R. § 442.2, which provides:

The maximum permissible charge for the purchase of durable medical equipment, medical/surgical supplies, and orthotic and prosthetic appliances shall be the fee payable for such equipment or supplies under the New York State Medicaid program at the time such equipment and supplies are provided…

Since § 68.1(a) of Regulation 83 adopts the WCB’s fee schedule, and because the WCB in turn has adopted the New York State Medicaid program fee schedule for DME in 12 N.Y.C.R.R. § 442.2, billing and reimbursement for DME under the no-fault regime must comply with the New York State Medicaid program fee schedule.

The New York State Medicaid program DME fee schedule contains frequency rules, which limit the frequency with which DME items may be dispensed to eligible recipients. Since the frequency rules are part of the New York State Medicaid program DME fee schedule, and because the no-fault system adopts the New York State Medicaid program fee schedule for DME billing and reimbursement, the frequency rules apply to DME dispensed in connection with no-fault insurance claims.

For further information, you may contact Principal Attorney Lawrence M. Fuchsberg at the New York City office.