OGC Op. No. 04-01-01
The Office of General Counsel issued the following opinion on January 5, 2004, representing the position of the New York State Insurance Department.
Re: No-Fault Benefits Reimbursement for Acupuncture Services
This is in response to the inquirers request for an opinion from the Office of General Counsel concerning the application of the Workers Compensation fee schedule towards No-Fault claims for acupuncture services.
Is a No-Fault carrier required to reimburse medically necessary acupuncture services that are rendered by a licensed acupuncturist, when same are not reimbursable under the Workers Compensation fee schedule?
Medically necessary acupuncture services that are rendered by a New York licensed acupuncturist are covered expenses eligible for reimbursement under No-Fault pursuant to Section 5102(a)(1) of the Insurance Law.
In order to determine whether a licensed acupuncturist is eligible for expenses under No-Fault, it must fall under one of the covered health service categories enumerated under N.Y. Insurance Law § 5102(a)(1) (McKinney 2003) as follows:
All necessary expense incurred for (1) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) and non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services For the purpose of determining basis economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.
Acupuncture falls under the category "any other professional health services" and therefore is covered under Section 5102(a)(1)(iv) and implemented under N.Y. Codes R. & Regs. tit. 11, § 65-3.16(a) (2002) (Regulation 68) as follows:
The term any other professional health services, as used in section 5102(a)(1)(iv) of the Insurance Law, this Part and approved endorsements, shall be limited to those services that are required or would be required to be licensed by the State of New York if performed within the State of New York. Such professional health services should be necessary for the treatment of the injuries sustained and within the lawful scope of the licensee's practice. Charges for the services shall be covered pursuant to schedules promulgated under section 5108 of the Insurance Law and Part 68 of this Title (Regulation 83). The services need not be initiated through referral by a treating or practicing physician.
Since acupuncture services rendered by a licensed acupuncturist are not included under the Worker's Compensation fee schedules and the Superintendent has not adopted an applicable fee schedule for licensed acupuncturists, N.Y. Codes R. & Regs. tit. 11, § 68.5(b) (2003) (Regulation 83) provides:
(b) if the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent. (Emphasis added).
For further information one may contact Supervising Attorney Lawrence M. Fuchsberg at the New York City Office.