Air Transportation and New York No-Fault
Frank Mazzagatti and Bruce Klein
Is air transportation a covered expense under New York No-Fault Law?
From the onset, it must be stated that “medical transportation” is not defined in either Article 51 of the New York Insurance Law or Department Regulation 68 under N.Y.Comp. Codes R. & Regs. Tit. 11 § 65.
If the service that is being provided constitutes “ambulance service,” then the charges would be considered an element of “basic economic loss” under § 5102(a)(1) of the Insurance Law¹.
On the other hand, if transportation services constitute an element of basic economic loss under § 5102(a)(3) for reasonable and necessary expenses incurred, up to twenty-five ($25) dollars per day, then only the eligible injured person (the no-fault claimant) can receive reimbursement for these expenses. (N.Y. Comp. Codes R. & Regs. Tit. 11 § 65-3.11(a).) Under the foregoing portion of the no-fault regulation, the right of the no-fault claimant to be reimbursed for such expenses cannot be assigned.
On May 8, 2000, The Department of Financial Services through the Office of General Counsel issued an opinion concerning No-Fault Payments for Medical Transportation Services (http://www.dfs.ny.gov/insurance/ogco2000/rg005081.htm).
On June 7, 2006, the Department of Financial Services through the Office of General Counsel issued an opinion concerning Payment for Emergency Ambulance Services (http://www.dfs.ny.gov/insurance/ogco2006/rg060602.htm).
It would appear that if the air transport at issue constitutes ambulance services, per se, said expenses would be reimbursable as described above.²
¹ There is no restriction in the no-fault regulation against effectuating an assignment of benefits for health-related ambulance services. Be mindful; however, that certain ambulance providers are required to possess an operating certificate or registration to bill said services. (Public Health Law § 3005(1).) Certain voluntary ambulance services are exempt from such requirements under Public Health Law § 3005(5-a).
² Given the differences in ambulance response times and proximity to acute care hospitals, emergency air transportation services in certain geographic regions is more prevalent than in regions with more hospitals and greater and more timely access to definitive emergency care services.