The Office of General Counsel issued the following opinion on February 25, 2003, representing the position of the New York State Insurance Department.

Re: Concurrent Care Involving Physical Therapy

QUESTIONS PRESENTED

1) Under the No-Fault law and implementing regulations, is an insurer required to reimburse a dentist, or any other licensed healthcare provider for physical therapy when a physical therapist is already billing eight units per day, which is the daily maximum allowed under the No-Fault fee schedule for such services?

2) Is a No-Fault carrier required to reimburse for physical therapy services rendered by two different licensed professionals during the same period, regardless of whether the billing for the physical therapist exceeds the eight units permitted under the worker’s compensation fee schedule?

3) May an insurer cut off reimbursement of physical therapy at eight units per day, regardless of how many providers are billing for such services, provided the reimbursement is paid to the provider whose specialty is most relevant to the diagnosis?

CONCLUSIONS

In regard to whether physical therapy rendered by multiple health care providers constitutes concurrent care, such a matter is a question of fact to be determined on a case-by-case basis.

Facts

None Presented. We are assuming that an assignment of benefits has been made by the eligible injured person to the provider.

Analysis

Ground Rule 6 of the New York Workers’ Compensation Medical Fee Schedule’s Introduction ("Rule 6")1, which is applicable to health services rendered under No-Fault, see Official New York Medical Fee Schedule, states, in relevant part:

Neither the Workers’ Compensation fee schedule, the New York Insurance Law nor the No-Fault regulation mandate the protocols to be used by a No-Fault insurer to determine which among multiple specialties would be considered most relevant to an injured party’s diagnosis. When a No-Fault insurer is of the opinion that a patient’s health care providers have engaged in concurrent care, payment should be made to the provider whose specialty is most relevant to the diagnosis, and the prescribed No-Fault denial of claim form should be sent to the remaining providers. If one or more of the aggrieved providers contests their unpaid balance, the ultimate determination of fact as to how much each provider should have been paid will be made by an arbitrator or court of competent jurisdiction.

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

1 N.Y. Ins. Law § 5108(a)-(b) (McKinney 2000) incorporates the schedules prepared and established by the Workers’ Compensation Board, which include the Official New York Workers’ Compensation Medical Fee Schedule, see N.Y. Comp. Codes R. & Regs. tit. 12, § 329.3 (2002), found in the Official New York Medical Fee Schedule.