The New York State Department of Financial Services (“DFS’)
has finalized the Thirty-Third Amendment to Regulation 83 (the “33rd Amendment”), which was published in the State Register on October
25, 2017 and will affect treatment rendered on or after January 23, 2018.
Pursuant to the accompanying press release, the 33rd Amendment is designed to “limit the amount that insurers can reimburse
for healthcare services performed outside of New York State under its
no-fault insurance law.” By limiting reimbursement amounts for out-of-state no-fault healthcare
services, which are treating New York State (“NYS”) residents,
the DFS intends to “curb costs and abuses” by out-of-state
medical providers charging excessive rates.
The 33rd Amendment separates treatment by out-of-state medical providers into the
following two categories:
Out-of-state medical services, which (a) constitute emergency care, (b) are provided to non-NYS residents, and (c) are provided to patients
with a NYS domicile, who are currently living in the state where the treatment
is being rendered, for reasons unrelated to the accident.
- Out-of-state medical services provided to a NYS resident, currently living in NYS.
There is one main difference between the two categories—which state’s
no-fault fee schedule governs and must be utilized by the insurer when
reimbursing the medical provider. Simply put, if the medical services
fall into Category 1, the medical provider’s reimbursement will
be capped at the No-Fault Schedule rate for the state and region wherein
the services are provided. By contrast, if the medical services fall into
Category 2, the medical provider’s reimbursement will be capped
at the highest rate available under the New York State No-Fault Fee Schedule.
While the foregoing may be the general rule, there are nuances requiring
The reimbursement rate for medical services is now capped at the prevailing
fee in the geographical location of the provider, unless the provider
charges less. While this may not appear to be a change, the 33rd Amendment now limits the prevailing geographical rate to that area’s
local No-Fault Fee Schedule Rate. In other words, if the services are
performed in Northern New Jersey (“NJ”), the provider’s
reimbursement is limited to the NJ No-Fault Fee Schedule rate for NJ-North.
Example 1: If an Ambulatory Surgery Center (“ASC”), which renders services
in Hackensack, New Jersey (“NJ”), treats a patient, who lives
in NJ but is covered by a NY policy, then that medical provider’s
charges would be limited to the NJ No-Fault ASC Fee Schedule Rate for
Example 2: Two weeks post-accident, a full-time Rutgers University student, who
lives on campus, presents for treatment at an MRI facility located in
New Brunswick, NJ, as a result of injuries she sustained while driving
her car. Despite living on-campus in NJ, the student still maintains her
NYS driver’s license and a NY automobile policy because she plans
to return home to Queens, New York after graduation. In this instance,
the provider’s charges would be capped at the NJ No-Fault ASC Fee
Schedule Rate for Region North even though the patient’s domicile
is New York.
The reimbursement rate for medical services rendered out-of-state to a patient
living in NYS, is capped at the lowest of the following: (a) the NYS No-Fault
Fee Schedule amount for the region with the highest reimbursable rate;
(b) the fee charged by the medical provider, or (c) the prevailing fee
in the geographic location of the out-of-state medical provider, a.k.a.
that state’s No-Fault Fee Schedule rate. As the NYS No-Fault Fee
Schedule rate is generally lesser than the No-Fault Fee Schedule rate
of other states, in almost all instances, an out-of-state medical provider,
which is treating a NYS resident will be capped at the NYS No-Fault fee
schedule rate for New York City (“NYC”), which is the highest
rate in NYS.
Example 1: An Ambulatory Surgery Center (“ASC”), which renders services
in Hackensack, NJ, treats a patient, who lives in Warwick, NY and is covered
by a NYS insurance policy. In this instance, the NJ medical provider’s
charges would be limited to the highest NYS No-Fault Fee Schedule Rate
for that service, i.e. the NYC rate.
Example 2: 3 days post-accident, an 89-year-old woman, who lives in Staten Island,
NY, but is visiting her children in Short Hills, NJ presents to the emergency
room (“ER”) of a local NJ hospital, with the following symptoms:
confusion, unbalanced gait, nausea and headache. An MRI performed in the
emergency room reveals a slow-bleeding subdural hematoma. The patient
is admitted in-patient for emergency medical treatment, including surgical
decompression. In this instance, the hospital’s charges would be
limited to the highest NYS No-Fault Fee Schedule Rate for the services
rendered because the treatment was not initiated within 48 hours following
the accident. Thus, the treatment is not deemed to be “emergency
care” under the 33rd Amendment, despite the fact that the treatment was necessary to stabilize
the patient’s condition.
In order to maximize recovery without running afoul of the new fee schedule
mandates of the 33rd Amendment, out-of-state medical providers treating patients covered by
NYS No-Fault policies must be cognizant of the following when billing
for medical services rendered:
- Whether their own state or NYS has the lowest reimbursable rate for the
- The number of hours between when the motor vehicle accident occurred and
when the medical provider initiated treatment;
- The patient’s current residence and permanent domicile;
- The reason why the patient is currently residing within the state where
the treatment is rendered, if the patient is domiciled in NYS.
With these factual components now governing the applicable fee schedule
rate to be utilized by out-of-state medical providers billing a NYS No-Fault
insurer, out-of-state medical providers must ensure that said information
is obtained from the patient during the intake process. Furthermore, out-of-state
hospitals and ambulances billing a NYS No-Fault policy may no longer rely
solely on the 10th Revision of the International Statistical Classification of Diseases and
Related Health Problems (“ICD-10”) when deciding whether the
medical services they render are deemed “emergency care”.
Rather, the hospitals and ambulances must look past the nature of the
treatment rendered and determine whether they initiated said treatment
within 48 hours of the accident.
 Press Release, posted October 10, 2017, http://www.dfs.ny.gov/about/press/pr1710101.htm
 Under the 33rd Amendment, in order to constitute emergency care, the treatment must be
initiated within 48 hours of the motor vehicle accident.