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Russell Friedman & Associates submitted the following comments regarding the Proposed Thirty-Third Amendment to 11 NYCRR §68 ("Regulation 83")

The Firm believes that the implementation of the revised Proposed Thirty Third Amendment to 11 NYCRR §68 (“Regulation 68”) (hereinafter “the Proposed Amendment”), which contains a forty-eight (48) hour timeframe for “emergency care services”, as afforded under Regulation 83, would not simply effect ambulatory surgery centers (“ASCs”) providing services in the State of New Jersey; rather, implementation of the Proposed Amendment would have the unintended consequence of undercutting the myriad protections afforded to New York State (“NYS”) hospitals under 11 NYCRR §65 (“Regulation 68”). Below is the Firm’s position, which was previously submitted to the DFS on behalf of its clients, during the public comment period.

Russell Friedman & Associates (“RFA” or “the Firm”) submits the following comments regarding the Proposed Thirty-Third Amendment to 11 NYCRR §68 (“Regulation 83”) (hereinafter “the Proposed Amendment”), governing the fee schedule to be applied for out-of-state, non-emergency care services. RFA appreciates the opportunity to explore the issues we see arising before the implementation of the Proposed Amendment. Experience has shown that, despite the best efforts of the Regulator, in seeking to understand the impact of changes made in the Regulations based on a perceived problem, such changes often lead to a significant future use of the Department of Financial Services’ (“DFS”) resources, as well as our clients’ resources to correct the interpretation being made by insurers of those changes.

Introduction

After a review of the original and revised Proposed Amendment, as well as a review of the Needs and Benefits, as outlined in the Revised Regulatory Impact Statement, taking into account RFA’s own broad-based experience in representing hospitals throughout the State of New York (“NYS”), the Firm believes that the definitions put forth by the DFS will be misinterpreted and/or misused, with an adverse impact on both the consumer and hospital communities, and shall cause a slippery slope of unintended consequences to develop. As such, we make the following comments.

The forty-eight (48) hour timeframe, which the DFS proposes to utilize to define “emergency medical services”, as afforded under Regulation 83, would have the unintended consequence of undercutting the myriad protections afforded to NYS hospitals under 11 NYCRR §65 (“Regulation 68”). The decision to define “emergency medical services” by means of a timeframe rather than through the nature of the patient’s underlying medical condition and the type of medical services provided, as defined by the hospitalist, would be not only a departure from the stance of all other government agencies, which allow the hospitalist to define nature of the medical services provided (via the universally accepted ICD-10 coding system but also an invitation to NYS no-fault insurers to disregard certain protections afforded to NYS hospitals treating patients in emergency settings under Regulation 68. In the recent past, NYS no-fault insurers have attempted, with fervor, to capitalize on other regulatory changes and errant court decisions, by denying otherwise valid hospital claims [e.g. the misapplication of 11 NYCRR §65-3.5(o) a.k.a. “the 120-day rule” to qualification forms, the reduction of the deadline to submit proof of claim from 180-days to 45-days, and the Mt. Sinai Hospital v. NYCM—“UB-04 issue”, which necessitated the DFS to issue Insurance Circular Letter No. 1 (2015) on February 3, 2015]. As such, there is no question in this Firm’s mind, nor should there be a question in the Regulator’s mind, that defining a timeframe for “emergency care services” would be the beginning of a slippery slope toward unintended consequences, far worse than not having a timeframe at all. Clearly, the Regulator recognizes that, by removing the timeframe for the issue of “residency”, the proper response of the insurer to questionable residency claims, would be to seek verification. Therefore, the Regulator should similarly remove the forty-eight (48) hour timeframe from the definition of “emergency care services”, as insurers already have the ability to verify charges through the verification process. This verification process is the correct method, already available to the insurer to determine whether an elective procedure is being “miscast” as an “emergency care service”.

Furthermore, while the stated purpose of the Proposed Amendment is to protect the consumer by preventing medical providers from taking advantage of the absence of specific fee schedules by submitting excessive charges for exaggerated claims, well above the corresponding NYS fee schedule rate, which results in a NYS insured’s benefits exhausting more quickly, the instant Proposed Amendment fails to address the implications of out-of-state drivers, Deemer statutes and choice of law provisions, which also effect the consumer. If a NYS insured were to have motor vehicle accident (“MVA”) while driving in another “no-fault state”, said insureds are also entitled, by law, to opt for the insurance policy limits of either NYS or the No-Fault state in which the MVA occurred. Furthermore, if an insured seeks treatment outside of NYS (due to the severity of the injury), it is of paramount importance that said insured not be refused treatment or be forced to pay out-of-pocket for said medical services when s/he has NYS No-Fault personal injury protect (“PIP”) benefits. There should be an obligation on the part of the insurer with the coverage options available, based on the specific facts presented, in lieu of merely providing the NYS or the foreign state forms.

In support of our positions, we present the following:

  1. Government Agencies, Including DFS, Define “Emergency Medical Services” by the Nature of the Patient’s Condition and Treatment Afforded, Which Recognizes the Hospitalist’s Assessment of the Patient’s Condition at the Time the Services Were Rendered

First and foremost, it is important to note that no other government agency in NYS, which is involved with health care insurance, has defined emergency medical services or emergency medical care by reference to a set timeframe. Rather, each agency’s definition arises from the nature of patient’s condition and the treatment afforded. The following are definitional examples from various NYS governmental agencies.

NYS Medicaid Program:

“Emergency Services”—Care provided after a sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical treatment could reasonably result in:

  • serious impairment of bodily functions;
  • serious dysfunction of a bodily organ or body party; or
  • would otherwise place the enrollee’s health in serious jeopardy.

NYS Public Health Law §3001:

“Emergency Medical Service”—means initial emergency medical assistance including, but not limited to, the treatment of trauma, burns, respiratory, circulatory and obstetrical emergencies.”

The Emergency Medical Treatment and Active Labor Act (“EMTALA”)—

While this is a federal statute, it requires all hospital emergency departments (including those in NYS) that accept payments from Medicare, to provide appropriate medical screenings examinations to individuals seeking treatment for a medical condition. Furthermore, participating hospitals may not transfer or discharge patients need emergency treatment or stabilization, except where their condition requires it. EMTALA defines “emergency medical condition”.

“Emergency Medical Condition”—An emergency medical condition is defined as "a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual's health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.

N.Y. Ins. Law §3216(i)(9)(See, OGC Op. No. 08-07-07):

“Emergency Condition”-- a medical or behavioral condition, the onset of which is sudden, that manifests itself by symptoms of sufficient severity, including severe pain, that a prudent layperson, possessing an average knowledge of medicine and health, could reasonably expect the absence of immediate medical attention to result in (A) placing the health of the person afflicted with such condition in serious jeopardy, or in the case of a behavioral condition placing the health of such person or others in serious jeopardy, or (B) serious impairment to such person's bodily functions; (C) serious dysfunction of any bodily organ or part of such person; or (D) serious disfigurement of such person.

Not only are government agencies unwilling to set a concrete definition for “emergency care services” that may conflict with the diagnosis of the hospitalist, but the Courts are equally averse to make blanket rulings regarding medical treatment, without a doctor’s testimony as to the patient’s specific symptoms, disease or complaints; the Courts defer to a physician’s assessment of the individual patient’s condition.

In Hellander v. State Farm Ins. Co., the insurer argued that the provider’s services were not reimbursable because they lacked medical necessity. In support of its lack of medical necessity defense, State Farm argued that the diagnostic tool utilized by the provider—a spinal ultrasound—never has a clinical benefit, rather than having the medical expert to testify that this particular patient did not require a spinal cord ultrasound to aid in his treatment/recovery. The Court rejected the very nature of this argument, explaining as follows:

In the instant matter, we have here, not a specific symptom, not a specific disease, not a specific complaint that was addressed in a medically ineffective way, according to Defendant; rather, according to Defendant’s denial form (NF–10) the Defendants have a blanket claim that the ultrasound of the paraspinal area is ineffective, regardless of complaint or symptomology. This Court is not willing to find a diagnostic tool utilized by physicians to be ineffective in all forms of complaints concerning the spine based on teetering testimony by Defendant’s expert and guidelines instituted by the American College of Radiology which clearly establishes that doctors are to use their own judgment in ordering different tests and that their conclusions are not binding upon any medical personnel. Furthermore, we have testimony by the physician, Dr. Hellander, stating that his test would be useful to the referring physician to form a proper prognosis and diagnosis of the patient.

Moreover, in reviewing the standard concerning medical necessity it is quite clear that this is to be viewed on a patient by patient basis and that testing, whether medically necessary or not, should be based upon the symptomatology and complaints and disease entities of the patient/assignor involved.

Hellander v. State Farm Ins. Co., 785 N.Y.S.2d 896, 2004 N.Y. Slip Op. 24468 (Civil Ct. Rich. Cty. 2004).

It is clear from the foregoing, that the Courts are unwilling to disregard the nature of the patient’s underlying condition and diagnosis when determining the medical necessity of the services at issue and, thus, whether those services are reimbursable. The Courts’ mindset, as evidenced by the decision in Hellander v. State Farm, is extremely important. If the Proposed Regulation passes, in its current form, with the forty-eight (48) hour timeframe intact, the Regulator would be choosing to disregard and override the hospitalist’s diagnosis of the patient’s condition at the time s/he presented at the ER, a position contrary to that expressly stated by the Courts. The EIP’s condition, as memorialized with the ICD-10 coding system, necessarily includes the severity of that condition (i.e. whether it is emergent), and the genesis of the condition.

  1. The Proposed Application of a Forty-Eight Hour Arbitrary Timeframe to “Emergency Care Services” Would Have No Bearing on the Stated Purpose of the Proposed Thirty-Third Amendment to Regulation 83

Not only would the application of the forty-eight (48) hour timeframe to “emergency care services” have the unintended consequence of eroding protections afforded to hospitals under Regulation 68, but said change would have no bearing on the stated objective of the Proposed Thirty-Third Amendment to Regulation 83: to prevent medical providers from taking advantage of the absence of specific fee schedules by submitting excessive charges for exaggerated claims, well above the corresponding New York State fee schedule rate, which results in the injured person’s benefits exhausting more quickly. The medical services which are performed outside New York, sometimes in New Jersey, are elective procedures; emergency care services and the bills, which result therefrom, are not the source of “inflated billing” from which patients must be protected from a public policy standpoint. In fact, many emergency care services a.k.a. emergency room services are often billed at a substantially lower rate than services rendered after a patient, who has been admitted or who is treated at a hospital on an elective basis. The Firm is unaware of any allegations by insurers that claim that hospitals in any state has misclassified an elective surgery as emergency care. In fact, by definition, an elective surgery cannot be an emergency medical condition. If a patient is admitted through an emergency department and is classified as “in-patient”, any surgery performed during the “in-patient” stay, it is not deemed elective.

As the Firm currently representing the largest number of hospital in NYS, in relation to no-fault billing and collections, RFA notes that there are numerous situations where an ER will not be visited for medical conditions deemed emergent until more than forty-eight hours following the motor vehicle accident (“MVA”) –as in the case of a subdural hematoma that manifests itself following a slow bleed or a herniated disc resulting in cord compression. Trauma often does not manifest itself with symptoms until days after the MVA. Furthermore, many ambulance calls to the scene of an accident lead to a follow up in the ER days later. This is not to say that a patient may not get examined on the same day as the accident, with injuries that do not require additional ER services. Our hospitals’ records are replete with examples of discharge to a patient’s private physician.

  1. The Imposition of a Forty-Eight (48) Hour Timeframe to Re-Categorize No-Fault Billing, to Something Other Than Emergency Care Services, Would Detrimentally Impact Other Protections Afforded Under Regulation 68 to All Hospitals Rendering Emergency Care Services, and Raise Significant Questions as to What the Rate Would Be Outside NYS

Regulation 68 recognizes that certain protections must be afforded to emergency care providers. Particularly, Regulation 68 is peppered with exceptions and carve outs to the normally stringent guidelines for the submission of no-fault claims, allowing hospitals treating patients in emergency settings to collect reimbursement when their claims are submitted beyond the forty-five (45) days statutory period, and even when the patient fails to comply with certain policy pre-conditions (i.e. failure to submit an NF-2). These public policy exceptions are grounded in the DFS’ understanding that hospitals, unlike any other type of medical provider, are required under federal law, to treat all patients who present to their emergency departments. See, EMTALA supra. However, should the DFS promulgate the Thirty-Third Amendment to Regulation 83, as proposed, these protections (some of which are delineated below, for purposes of example), are in jeopardy as NYS no-fault insurers will seek to limit the definition of all “emergency care services”, regardless of the state in which they are rendered, to forty-eight (48) hours from the MVA.

The following are examples of the specific provisions in Regulation 68 that are designed to protect hospitals when they are providing emergency care services:

  • 11 NYCRR §65-3.3(d)—The written notice required by section 65-2.4 of this Part and the mandatory and additional personal injury protection endorsement(s) shall be deemed to be satisfied by the insurer's receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS Form N-F 2) forwarded to the applicant pursuant to subdivision 65-3.4(b) of this subpart or by the insurer's receipt of a completed hospital facility form (NYS Form N-F 5).
  • 11 NYCRR §65-3.5(g)-- In lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant and a verification of hospital treatment (NYS Form N-F 4), an insurer shall accept a completed hospital facility form (NYS Form N-F 5) (or an N-F 5 and Uniform Billing Form (UBF-1) which together supply all the information requested by the N-F 5) submitted by a provider of health services with respect to the claim of such provider.
  • 11 NYCRR §65-3.5(l)—The insurer shall establish standards for review of its determinations that applicants have provided late notice of claim or late proof of claim. In the case of notice of claim, such standards shall include, but not be limited to, appropriate consideration for pedestrians and non-related occupants of motor vehicles who may have difficulty ascertaining the identity of the insurer. In the case of proof of claim, such standards shall include, but not be limited to, appropriate consideration for emergency care providers, demonstrated difficulty in ascertaining the identity of the insurer and inadvertent submission to the incorrect insurer. The insurer shall establish procedures, based upon objective criteria, to ensure due consideration of denial of claims based upon late notice or late submission of proof of claim, including supervisory review of all such determinations. Insurer standards shall be available for review by Department examiners.

Should the DFS promulgate the Thirty-Third Amendment to Regulation 83, as proposed, it will only be a matter of time before no-fault insurers seek to apply the forty-eight (48) hour “emergency care services” timeframe inside NYS. Insurers will argue that these protections, as provided by Regulation 68, should not be afforded to NYS hospitals which render treatment to patients beyond the first forty-eight (48) following the MVA. It is an absolute certainty that said NYS no-fault insurers will argue that any medical treatment rendered outside of the first forty-eight (48) hours, regardless of nature of the patient’s condition or the nature of the service rendered or the ICD-10 code assigned by the hospitalist, cannot, by definition, be deemed emergency care services. And thus, the billing stemming therefrom, should not be entitled to any of the protections afforded to “emergency care services” under Regulation 68.

  1. The DFS Must Ensure that NYS Consumer’s Right to Elect Coverage is Protected with the Implementation of the Proposed Amendment

There are two situations where a NYS insured has to elect whether the no-fault insurance coverage to be afforded is to be under the NYS no-fault policy or under the no-fault benefits of the state in which the accident occurred: (a) NYS policy holders are afforded coverage for out-of-state accidents, as a passenger in a commercial vehicle since commercial vehicles do not provide personal injury protection benefits (“PIP”) benefits to passengers, and (b) as a passenger in any other vehicle, where coverage follows the eligible injured party (“EIP”) rather than the car in which that party is riding.

Regulation 83, and thus the Proposed Amendment, only apply to those EIPs who elect NYS coverage for a foreign accident. Thus, should the insurer not be required, under the Proposed Amendment, to advise the consumer his/her coverage options in the event s/he is involved in an out-of-state accident? By way of further example, unlike NYS and NJ, Michigan has multi-million-dollar limit. In this scenario, there would be an incentive on the part of the NYS no-fault insurer to have the NYS resident-insured elect NYS no-fault benefits, even if s/he is involved in a foreign accident. Therefore, should there not be a requirement that the NYS no-fault insurer advise the consumer of his/her right to elect coverage? Upon notifying the NYS no-fault insurer of the out-of-state accident, which forms will be supplied to the EIP?

CONCLUSION

For the reasons set forth above, which include examples of NYS no-fault insurers overreaching to avoid payment of valid claims made by NYS hospitals, the Firm believes that due consideration should be given to our position that the forty-eight (48) hour timeframe should be removed from the Proposed Amendment. Therefore, we must ask the Regulator to revisit Needs and Benefits for this Proposed Amendment. It is elective care, which by definition is not emergency care, that is the subject of this change.

For further clarification of our position, please contact Erin Stamper, Supervising No-Fault Associate, via the contact information provided below.

Submitted by Russell Friedman & Associates, on behalf of the Firm’s hospital clients.