DFS-11-13-00008-ERP Unauthorized Providers of Health Services  

  • 8/7/13 N.Y. St. Reg. DFS-11-13-00008-ERP
    NEW YORK STATE REGISTER
    VOLUME XXXV, ISSUE 32
    August 07, 2013
    RULE MAKING ACTIVITIES
    DEPARTMENT OF FINANCIAL SERVICES
    NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. DFS-11-13-00008-ERP
    Filing No. 776
    Filing Date. Jul. 22, 2013
    Effective Date. Jul. 22, 2013
    Unauthorized Providers of Health Services
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Action Taken:
    Amendment of Part 65 of Title 11 NYCRR.
    Statutory authority:
    Financial Services Law, section 202 and arts. 3 and 4; Insurance Law, sections 301, 5109, and 5221 and arts. 4 and 51
    Finding of necessity for emergency rule:
    Preservation of public health, public safety and general welfare.
    Specific reasons underlying the finding of necessity:
    This regulation concerns the de-authorization of certain providers of health services. Insurance Law § 5109(a) requires the Superintendent, in consultation with the Commissioner of Health and the Commissioner of Education, to promulgate standards and procedures for investigating and suspending or removing the authorization for providers of health services to demand or request payment for health services under Article 51 of the Insurance Law upon findings of certain unlawful conduct reached after investigation, notice, and a hearing pursuant to Insurance Law § 5109.
    For years, certain owners and operators of professional service corporations and other types of corporations have abused the no-fault insurance system. These persons are involved in activities that include intentionally staging accidents and billing no-fault insurers for health services that were unnecessary or never in fact rendered. Indeed, recent federal indictments have demonstrated that organized crime has infiltrated and permeated the no-fault provider network. Such wide-scale criminal activity is estimated to have defrauded insurers of at least hundreds of millions of dollars, if not more. Insurers ultimately pass on these costs to New York consumers in the form of higher automobile premiums, and schemes such as the fraudulent staging of auto accidents endangers the innocent public. Furthermore, it places in peril the quality of care received by innocent auto accident victims and the public’s health, safety, and welfare.
    It is of the utmost importance that the Superintendent, Commissioner of Health, and Commissioner of Education be able, as soon as possible, to prohibit health service providers who engage in such activities from demanding or requesting payment from no-fault insurers.
    For the reasons stated above, emergency action is necessary for the public health, public safety, and general welfare.
    Subject:
    Unauthorized Providers of Health Services.
    Purpose:
    Establish standards and procedures for the investigation and suspension or removal of a health service provider's authorization.
    Text of emergency/revised rule:
    Section 65-5.0 Preamble.
    (a) For years, certain owners and operators of professional service corporations or other similar business entities have abused the no-fault insurance system. These persons are involved in activities that include intentionally staging accidents and billing no-fault insurers for health services that were unnecessary or never in fact rendered. This fraud costs no-fault insurers tens if not hundreds of millions of dollars, which insurers ultimately pass on to New York consumers in the form of higher automobile insurance premiums. It also threatens the affordability of health care and the public’s health, safety, and welfare.
    (b) Insurance Law section 5109 requires the Superintendent of Financial Services, in consultation with the Commissioner of Health and the Commissioner of Education, to establish standards and procedures for the investigation and suspension or removal of a provider of health services’ authorization to demand or request payment for health services provided under Insurance Law article 51. This Subpart implements Insurance Law section 5109.
    Section 65-5.1 Definitions.
    As used in this Subpart, the following terms shall have the meaning ascribed to them:
    (a) “Health services” or “medical services” means services, supplies, therapies, or other treatments as specified in Insurance Law section 5102(a)(1)(i), (ii), or (iv).
    (b) “Insurer” shall have the meaning set forth in Insurance Law section 5102(g), and also shall include the motor vehicle accident indemnification corporation and any company or corporation providing coverage for basic economic loss, as defined in Insurance Law section 5102(a), pursuant to Insurance Law section 5103(g).
    (c) “Noticing commissioner” means the Commissioner of Health or the Commissioner of Education, whomever sends a notice of hearing under this Subpart.
    (d) “Provider of health services” or “provider” means a person or entity who or that renders or has rendered health services.
    (e) “Superintendent” means the Superintendent of Financial Services.
    Section 65-5.2 Investigations.
    (a) The superintendent may investigate any reports made pursuant to Insurance Law section 405, allegations, or other information in the superintendent’s possession, regarding providers of health services engaging in any of the unlawful activities set forth in Insurance Law section 5109(b). After conducting an investigation, the superintendent will send to the Commissioner of Health or the Commissioner of Education, as appropriate, a list of any providers who or that the superintendent believes may have engaged in any of the unlawful activities set forth in Insurance Law section 5109(b), together with a description of the grounds for inclusion on the list. Within 45 days of receipt of the list, the Commissioner of Health or Commissioner of Education shall notify the superintendent in writing whether he or she confirms that the superintendent has a reasonable basis to proceed with notice and a hearing for determining whether any of the listed providers should be deauthorized from demanding or requesting any payment for medical services in connection with any claim under Insurance Law article 51.
    (b) The Commissioner of Health and the Commissioner of Education also may investigate any reports, allegations, or other information in their possession, regarding providers engaging in any of the unlawful activities set forth in Insurance Law section 5109(b). If either commissioner conducts an investigation, then that commissioner, or the superintendent, if requested by the commissioner, shall be responsible for providing notice and an opportunity to be heard to the providers of health services that they are subject to deauthorization from demanding or requesting any payment for medical services in connection with any claim under Insurance Law article 51. Nothing in this section, however, shall preclude the superintendent, Commissioner of Health, or Commissioner of Education from conducting joint investigations and hearings, or the Commissioner of Health or Commissioner of Education from conducting professional misconduct proceedings against the providers of health services pursuant to the Public Health Law or Title VIII of the Education Law.
    Section 65-5.3 Notice; how given.
    (a)(1) The superintendent, Commissioner of Health, or Commissioner of Education shall give notice of any hearing to a provider at least 30 days prior to the hearing, in writing, either by delivering it to the provider or by depositing the same in the United States mail, postage prepaid, registered or certified, and addressed to the last known place of business of the provider or if no such address is known, then to the residence address of the provider.
    (2) The notice shall refer to the applicable provisions of the law under which action is proposed to be taken and the grounds therefor, but failure to make such reference shall not render the notice ineffective if the provider to whom it is addressed is thereby or otherwise reasonably apprised of such grounds.
    (3) It shall be sufficient for the superintendent or noticing commissioner to give to the provider:
    (i) notice of the time and the place at which an opportunity for hearing will be afforded; and
    (ii) if the person appears at the time and place specified in the notice or any adjourned date, a hearing.
    (b) At least ten days prior to the hearing date fixed in the notice, the provider may file an answer to any charges with the superintendent or noticing commissioner.
    (c) Any hearing of which such notice is given may be adjourned from time to time without other notice than the announcement thereof at such hearing.
    (d) The statement of any regular salaried employee of the Department of Financial Services, Department of Health, or Department of Education, subscribed and affirmed by such employee as true under the penalties of perjury, stating facts that show that any notice referred to in this section has been delivered or mailed as hereinbefore provided, shall be presumptive evidence that such notice has been duly delivered or mailed, as the case may be.
    Section 65-5.4 Hearings.
    (a) Unless otherwise provided, any hearing may be held before the superintendent, Commissioner of Health or Commissioner of Education, any deputy, or any designated salaried employee of the Department of Financial Services, Department of Health, or Department of Education who is authorized by the superintendent or noticing commissioner for such purpose. The hearing shall be noticed, conducted, and administered in compliance with the State Administrative Procedure Act.
    (b) The person conducting the hearing shall have the power to administer oaths, examine and cross-examine witnesses, and receive documentary evidence, and shall report his or her findings, in writing, to the superintendent or noticing commissioner with a recommendation. The report, if adopted by the superintendent or noticing commissioner, may be the basis of any determination made by the superintendent or noticing commissioner.
    (c) Every such hearing shall be open to the public unless the superintendent or noticing commissioner, or the person authorized by the superintendent or noticing commissioner to conduct such hearing, shall determine that a private hearing would be in the public interest, in which case the hearing shall be private.
    (d) Every provider affected shall be permitted to: be present during the giving of all the testimony; be represented by counsel; have a reasonable opportunity to inspect all adverse documentary proof; examine and cross-examine witnesses; and present proof in support of the provider's interest. A stenographic record of the hearing shall be made, and the witnesses shall testify under oath.
    (e) Nothing herein contained shall require the observance at any such hearing of formal rules of pleading or evidence.
    Section 65-5.5 Report of hearing and findings.
    (a) Pending a final determination by the superintendent, Commissioner of Health, or Commissioner of Education, if the superintendent or noticing commissioner believes that the provider has engaged in any activity set forth in Insurance Law section 5109(b), then the superintendent or noticing commissioner may temporarily prohibit the provider from demanding or requesting any payment for medical services under Insurance Law article 51 for up to 90 days from the date of the notice of such temporary prohibition pursuant to Insurance Law section 5109(e).
    (b) The hearing officer shall issue to the superintendent or noticing commissioner the report described in Section 65-5.4(b) of this Subpart, with a recommendation. The superintendent or noticing commissioner may adopt, modify, remand, or reject the hearing officer’s report and recommendation.
    (c)(1) Upon consideration of the hearing officer’s report and recommendation, the superintendent or noticing commissioner may issue a final order prohibiting the provider from demanding or requesting any payment for medical services in connection with any claim under Insurance Law article 51 and requiring the provider to refrain from subsequently treating, for remuneration, as a private patient, any person seeking medical treatment under Insurance Law article 51, for a period specified by the superintendent or noticing commissioner.
    (2) If the superintendent or noticing commissioner issues a final order prohibiting the provider from demanding or requesting any payment for medical services in connection with any claim under Insurance Law article 51 and requiring the provider to refrain from subsequently treating, for remuneration, as a private patient, any person seeking medical treatment under Insurance Law article 51, for a period longer than three years, then the provider may, after the expiration of three years, submit a written application to the superintendent or noticing commissioner requesting that the superintendent or noticing commissioner reconsider his or her order. The written application shall explain why revising the order would not jeopardize the health, safety, and welfare of the people of this State.
    This notice is intended
    to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on March 13, 2013, I.D. No. DFS-11-13-00008-EP. The emergency rule will expire September 19, 2013.
    Emergency rule compared with proposed rule:
    Substantial revisions were made in sections 65-5.0(b), 65-5.1(d), 65-5.2 and 65-5.5(a), (c).
    Text of rule and any required statements and analyses may be obtained from:
    Camielle A. Barclay, New York State Department of Financial Services, One State Street, New York, NY 10004, (212) 480-5299, email: camielle.barclay@dfs.ny.gov
    Data, views or arguments may be submitted to:
    Same as above.
    Public comment will be received until:
    30 days after publication of this notice.
    Revised Regulatory Impact Statement
    1. Statutory authority: Section 202 and Articles 3 and 4 of the Financial Services Law, and Sections 301, 5109, and 5221 and Articles 4 and 51 of the Insurance Law. Insurance Law § 301 and Financial Services Law §§ 202 and 302 authorize the Superintendent of Financial Services (the “Superintendent”) to prescribe regulations interpreting the provisions of the Insurance Law and to effectuate any power granted to the Superintendent under the Insurance Law. Article 3 of the Financial Services Law sets forth administrative and procedural provisions, while Article 4 of the Financial Services Law confers certain powers and duties on the Superintendent with regard to financial frauds prevention. Insurance Law § 5109 requires the Superintendent to promulgate standards and procedures for investigating and suspending or removing, after notice and a hearing, the authorization of health service providers to bill no-fault insurance if they engage in certain unlawful conduct. Insurance Law § 5221 specifies the duties and obligations of the Motor Vehicle Accident Indemnification Corporation (“MVAIC”) with regard to the payment of no-fault benefits to qualified persons. In addition, Article 4 of the Insurance Law sets forth requirements for reporting and preventing fraud, while Article 51 of the Insurance Law governs the no-fault insurance system.
    2. Legislative objectives: Insurance Law § 5109 requires the Superintendent, in consultation with the Commissioner of Health and the Commissioner of Education, to promulgate standards and procedures for investigating and suspending or removing the authorization for health service providers to demand or request payment for health services under Article 51 of the Insurance Law upon findings of certain unlawful conduct reached after investigation, notice, and a hearing pursuant to § 5109. Furthermore, Insurance Law § 301 and Financial Services Law §§ 202 and 302 authorize the Superintendent to prescribe regulations interpreting the provisions of the Insurance Law and to effectuate any power granted to the Superintendent under the Insurance Law.
    3. Needs and benefits: For years, certain owners and operators of professional service corporations and other business entities have abused the no-fault insurance system. These persons are involved in activities that include intentionally staging accidents and billing no-fault insurers for health services that were unnecessary or never in fact rendered. Indeed, recent federal indictments have demonstrated that organized crime has infiltrated and permeated the no-fault provider network. Such wide-scale criminal activity is estimated to have defrauded insurers of at least hundreds of millions of dollars, if not more. Insurers ultimately pass on these costs to New York consumers in the form of higher automobile insurance premiums, and schemes such as the fraudulent staging of auto accidents endanger the innocent public. Furthermore, these activities place in peril the quality of care received by innocent auto accident victims and the public’s health, safety, and welfare.
    It is of the utmost importance that the Superintendent, Commissioner of Health, and Commissioner of Education be able, as soon as possible, to prohibit health service providers who engage in such activities from demanding or requesting payment from no-fault insurers.
    Therefore, after consultation with the Commissioner of Health and the Commissioner of Education, the Superintendent drafted this rule to promulgate standards and procedures for investigating and suspending or removing the authorization for health service providers to demand or request payment for health services under Article 51 of the Insurance Law upon findings of certain unlawful conduct reached after investigation, notice, and a hearing pursuant to § 5109.
    4. Costs: This rule does not impose compliance costs on state or local governments. The rule should reduce costs for no-fault insurers, which may include local governments who self-fund their no-fault insurance benefits, because it will permit the Superintendent, Commissioner of Health, or Commissioner of Education to prohibit, after notice and a hearing, health service providers who engage in certain unlawful conduct from demanding or requesting payment from no-fault insurers. The rule also should reduce costs for New York consumers in the form of reduced automobile insurance premiums.
    5. Local government mandates: This rule does not impose any requirement upon a city, town, village, school district, or fire district.
    6. Paperwork: This rule does not impose any additional paperwork.
    7. Duplication: This rule will not duplicate any existing state or federal rule.
    8. Alternatives: The earlier, emergency version of this rule did not indicate whether the Superintendent or noticing commissioner may prohibit a person from billing no-fault insurers for a specified period of time rather than permanently. However, there may be circumstances where it is appropriate for the Superintendent or noticing commissioner to impose the prohibition for only a limited period of time or to entertain applications to lift the prohibition after a certain number of years.
    Therefore, the rule makes clear that the Superintendent or noticing commissioner may prohibit a person from billing no-fault insurers for a period determined by the Superintendent. Under this language, if the Superintendent or noticing commissioner has prohibited a provider from billing no-fault insurers for more than three years, then the provider may, after the expiration of three years, submit a written application to the Superintendent or noticing commissioner requesting that he or she reconsider his or her order. The written application must explain why revising the order would not jeopardize the health, safety, and welfare of the people of New York State.
    9. Federal standards: There are no minimum standards of the federal government for the same or similar subject areas. The rule is consistent with federal standards or requirements.
    10. Compliance schedule: Insurance Law § 5109(a) requires notice to all health service providers of the provisions of § 5109 and this rule at least 90 days in advance of the effective date of the rule. This rule was promulgated on an emergency basis on March 9, 2012 (to take effect 95 days after filing with the Secretary of State, i.e., June 12, 2012), June 6, 2012 (to take effect on June 12, 2012), August 31, 2012, November 28, 2012, and February 25, 2013. Notice of the proposed rule was published in the State Register on March 13, 2013. The rule was re-promulgated on an emergency basis on May 24, 2013.
    The Department provided the required notice by, among other things, emailing notice of Insurance Law § 5109 and the rule on March 14, 2012 to health service provider organizations, such as the Medical Society of the State of New York, New York State Chiropractic Association, and Acupuncture Society of New York; posting a copy of the rule on its website continually since March 9, 2012; and publishing the rule in the State Register.
    Revised Regulatory Flexibility Analysis
    1. Effect of the rule: The Department of Financial Services (“Department”) finds that this rule will generally not impose reporting, recordkeeping or other requirements on small businesses or local governments. The basis for this finding is that this rule does not impose any substantive requirements on small businesses or local governments. In addition, this rule affects no-fault insurers authorized to do business in New York State and self-insurers, none of which fall within the definition of “small business” because none are both independently owned and have less than one hundred employees. Self-insurers are typically large enough to have the financial ability to self-insure losses and the Department does not have any information to indicate that any self-insurers are small businesses.
    This rule also affects health service providers, some of whom may be considered small businesses. However, this rule does not impose any substantive requirements on health service providers.
    Some local governments self-insure their no-fault benefits. The Department has not been able to determine the number of local governments that are self-insured. However, this rule does not impose any substantive requirements on local governments, and any impact on local governments would be positive and should reduce their costs.
    2. Compliance requirements: This rule does not impose any additional paperwork.
    3. Professional services: This rule does not require anyone to use professional services. However, if a health service provider is subject to a hearing, the provider may be represented by counsel.
    4. Compliance costs: This rule does not impose compliance costs on small businesses or local governments, because it does not impose any substantive requirements. The rule should reduce costs for no-fault insurers, which may include local governments who self-fund their no-fault insurance benefits, because it will permit the Superintendent, Commissioner of Health, or Commissioner of Education to prohibit, after notice and a hearing, health service providers who engage in certain unlawful conduct from demanding or requesting payment from no-fault insurers.
    5. Economic and technological feasibility: This rule does not impose any substantive requirements on small businesses or local governments, so there should not be any issues pertaining to economic and technological feasibility.
    6. Minimizing adverse impact: This rule affects uniformly health service providers and no-fault insurers in all parts of New York State and the rule is mandated by statute. The Department does not believe that it will have an adverse impact.
    7. Small business and local government participation: The Department issued a press release regarding the rule on March 8, 2012; emailed notice of Insurance Law § 5109 and the rule on March 14, 2012 to health service provider organizations, such as the Medical Society of the State of New York, New York State Chiropractic Association, and Acupuncture Society of New York; has posted a copy of the rule on its website since March 9, 2012; and published the rule in the State Register. In addition, interested parties were given an opportunity to comment on the proposed regulation that was published in the State Register on March 13, 2013.
    Revised Rural Area Flexibility Analysis
    1. Types and estimated number of rural areas: Health service providers, insurers, and self-insurers affected by this regulation do business in every county in this state, including rural areas as defined under Section 102(10) of the State Administrative Procedure Act. Some of the home offices of these health service providers, insurers, and self-insurers lie within rural areas. Some government entities that are self-insurers for no-fault benefits may be located in rural areas.
    2. Reporting, recordkeeping and other compliance requirements: This rule does not impose any additional paperwork.
    3. Costs: This rule does not impose compliance costs on state or local governments. The rule should reduce costs for no-fault insurers, which may include local governments who self-fund their no-fault insurance benefits, because it will permit the Superintendent, Commissioner of Health, or Commissioner of Education to prohibit, after notice and a hearing, health service providers who engage in certain unlawful conduct from demanding or requesting payment from no-fault insurers. The rule also should reduce costs for New York consumers in the form of reduced automobile insurance premiums.
    4. Minimizing adverse impact: This rule affects uniformly health service providers and no-fault insurers in both rural and non rural areas of New York State and the rule is mandated by statute. The Department of Financial Services does not believe that it will have an adverse impact on rural areas.
    5. Rural area participation: The Department issued a press release regarding the rule on March 8, 2012; emailed notice of Insurance Law § 5109 and the rule on March 14, 2012 to health service provider organizations, such as the Medical Society of the State of New York, New York State Chiropractic Association, and Acupuncture Society of New York; has posted a copy of the rule on its website continually since March 9, 2012; and published the rule in the State Register. In addition, interested parties were given an opportunity to comment on the proposed regulation that was published in the State Register on March 13, 2013.
    Revised Job Impact Statement
    Neither the proposed rule that was published in the State Register on March 13, 2013 nor the emergency measure amending 11 NYCRR 65 indicated whether the Superintendent or noticing commissioner may prohibit a person from billing a no-fault insurer for a specified period of time rather than permanently. This revised rule clarifies that the Superintendent or noticing commissioner may prohibit a person from billing no-fault insurers for a specified period as determined by the Superintendent. This revision to the rule requires no change to the JIS.
    Assessment of Public Comment
    The agency received no public comment.

Document Information

Effective Date:
7/22/2013
Publish Date:
08/07/2013