Department of Financial Services Adoption of 2018 WCB Fee Schedule
UPDATE: On April 1, 2019, the 2018 New York Workers’ Compensation Fee Schedule will go into effect. Any chiropractor who treats Workers’ Compensation or No-Fault patients should be aware of the major changes and how this will impact them.
The Department of Financial Services has adopted Emergency Regulations (read in full below) regarding No-Fault providers and the implementation of the new 2018 Workers’ Compensation Fee Schedule. The statement addresses when the new ground rules and increased reimbursement rates will take effect. The ground rules will become applicable to No-Fault providers on April 1, 2019. However, the increased reimbursement rates for medical services rendered will not be implemented until eighteen months later on October 1, 2020. This article will seek to address how the new fee schedule relates to the treatment of No-Fault patients:
This emergency regulation establishes that the Workers’ Compensation reporting and procedural requirements found in the Fee Schedules do not apply to No-Fault. Although the general instructions and ground rules are applicable, any instructions that concern Workers’ Compensation claim forms, preauthorization approval, or dispute resolution guidelines will not apply to No-Fault unless explicitly specified in the given rule.
One of the most significant additions to the Chiropractic section of the 2018 Workers Compensation Fee Schedule is the new Ground Rule 10, which states that Chiropractors may not bill outside of their section. The significance of the implementation of Ground Rule 10 is that it will limit the services that Chiropractors currently use to treat their No-Fault patients. Chiropractic services that are not specifically found within the Chiropractic Fee Schedule section (such as manipulation under anesthesia, computer radiographic mensuration analysis, and sensory nerve testing such as Pf-NCS or Vs-NCT) will no longer be reimbursable.
Some of the other noteworthy changes that affect No-Fault providers include:
- All Providers That Administer Physical Modalities: The Maximum reimbursement per day has been increased from 8.0 RVUs to 12.0 RVUs, but there is a limit of 12 RVUs per patient per day, regardless of the number of providers.
- Range of Motion (ROM) testing and Physical Performance testing: This testing has been given an RVU of 0 and will not be reimbursable for any provider. This testing is now considered part of a comprehensive exam and is not separately reimbursable.
- Radiologists and MRI Facilities: Radiology Ground Rule #3(F) states that imaging studies taken with 7 days of the first imaging study and related to the injury or problem necessitating the first imaging study, and which could have been reasonably performed at one time, shall be subject to reduction.
The new Fee Schedule does have increased reimbursement rates from the previous fee schedule.
This increase of reimbursement rates has been long overdue and providers will see a sizeable increase in the amount they receive for the treatment of patients involved in motor vehicle accidents. However, the Department of Financial Services, which oversees all No-Fault Insurance Law, has determined in an emergency regulation that these increased rates will not become effective until October 1, 2020, eighteen months after the effective date of the Fee Schedule itself on April 1, 2019.
The Department of Financial Services has stated that the No-Fault Insurers must be given time to account for the increased reimbursement rates and to adjust their premiums accordingly. Although the increased reimbursement rates are not effective until October 1, 2020, the ground rules of the 2018 Workers’ Compensation Fee Schedule will be applicable to No-Fault treatment and billing on April 1, 2019. It should be noted that the new fee schedule only applies to healthcare services rendered on or after April 1, 2019, so treatment that was rendered prior will not be subject to the requirements of the new fee schedule.
As April 1st rapidly approaches, all No-Fault providers must take a look at how these changes will affect billing for their No-Fault patients, and ultimately, how future services will be provided to No-Fault patients under the 2018 Workers’ Compensation Fee Schedule.
This article was authored by Thomas Tona, a New York No-Fault Collections attorney and owner of the TonaLaw firm. With over 20 years of experience representing healthcare providers in the collection of No-Fault receivables as well as recovering Medicare, Medicaid, Worker’s Compensation, and health insurance liens and lost wages for Personal Injury clients whose No-Fault benefits are improperly denied. Just last year, Mr. Tona wrote the “No Stress No-Fault” healthcare provider’s guide to New York State No-Fault insurance which has been used by hundreds of practitioners across downstate New York. Share your mailing address to email@example.com to be placed on the waitlist to receive the updated 2019 edition of the guide.
For more information and updates on the adoption and implementation of the 2018 WCB Fee Schedule, please sign up below:
NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES THIRTY-FOURTH AMENDMENT TO 11 NYCRR 68
(INSURANCE REGULATION 83)
CHARGES FOR PROFESSIONAL HEALTH SERVICES
I, Linda A. Lacewell, Acting Superintendent of Financial Services, pursuant to the authority granted by Sections 202 and 302 of the Financial Services Law, and Sections 301, 2601, 5221, and Article 51 of the Insurance Law, do hereby promulgate the following Thirty-Fourth Amendment to Part 68 of Title 11 of the Official Compilation of Codes, Rules and Regulations of the State of New York (Insurance Regulation 83), to take effect upon filing with the Secretary of State of New York, to read as follows:
(NEW MATTER IS UNDERSCORED; MATTER IN BRACKETS IS DELETED)
Section 68.1 is amended to read as follows:
§ 68.1 Adoption of certain workers’ compensation schedules
- The existing fee schedules prepared and established by the [chairman] chair of the Workers’ Compensation Board for industrial accidents are hereby adopted by the Superintendent of Financial Services with appropriate modification so as to adapt such schedules for use pursuant to the provisions of [section 5108 of the] Insurance Law section 5108.
- Notwithstanding paragraph (1) of this subdivision, and except as provided in subparagraph (ii) of this paragraph, the amendments to the fee schedules set forth in Parts 329, 333, 343, and 348 of 12 NYCRR that were promulgated by the chair of the Workers’ Compensation Board on December 11, 2018, shall take effect for purposes of Insurance Law section 5108 on October 1, 2020, and shall only apply to all charges for health services performed on or after October 1, 2020.
- The following ground rules in the amendments to the fee schedules set forth in Parts 329, 333, 343, and 348 of 12 NYCRR that were promulgated by the chair of the Workers’ Compensation Board on December 11, 2018, shall take effect for purposes of Insurance Law section 5108 on April 1, 2019, and shall apply to all charges for health services performed on or after April 1, 2019:
- (a) General Ground Rule 10 in the Workers’ Compensation Chiropractic Fee Schedule set forth in 12 NYCRR 348;
- (b) General Ground Rule 19 in the Workers’ Compensation Medical Fee Schedule set forth in 12 NYCRR 329;
- (c) General Ground Rule 13 in the Workers’ Compensation Behavioral Health Fee Schedule (formerly the Psychology Fee Schedule) set forth in 12 NYCRR 333, and;
- (d) General Ground Rule 16 in the Workers’ Compensation Podiatry Fee Schedule set forth in 12 NYCRR 343.
- The charges for services specified in [paragraph one of subsection (a) of section 5102 of the] Insurance Law section 5102(a)(1) and any further health service charges [which] that are incurred as a result of the injury and [which] that are in excess of basic economic loss, shall not exceed the charges permissible under the schedules prepared and established by the chair of the Workers’ Compensation Board for industrial accidents that are in effect for purposes of no-fault at the time the charges are incurred. However, references to workers’ compensation reporting and procedural requirements in such schedules do not apply to no-fault, e.g., requirements that provide for authorization to perform surgical procedures[, is not applicable to no-fault]. The general instructions and ground rules in the workers’ compensation fee schedules apply, but those rules [which] that refer to workers’ compensation claim forms, pre-authorization approval, time limitations within which health services must be performed, enhanced reimbursement for providers of certain designated services, and dispute resolution guidelines do not apply, unless specified in this Part.
Regulatory Impact Statement for the Thirty-Fourth Amendment to 11 NYCRR 68
(Insurance Regulation 83)
1. Statutory authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 2601, 5221, and Article 51.
- Insurance Law Section 301 and Financial Services Law Sections 202 and 302 authorize the Superintendent of Financial Services (the “Superintendent”) to prescribe regulations interpreting the provisions of the Insurance Law, and effectuate any power granted to the Superintendent under the Insurance Law.
- Insurance Law Section 2601 prohibits insurers from engaging in unfair claim settlement practices and requires insurers to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies.
- Insurance Law Section 5221 specifies the duties and obligations of the Motor Vehicle Accident Indemnification Corporation with respect to the payment of no-fault benefits to qualified persons.
- Article 51 of the Insurance Law contains the provisions authorizing the establishment of a no-fault reparations system for persons injured in motor vehicle accidents. Section 5108(b) specifically authorizes the Superintendent to adopt the fee schedules prepared and established by the Chairman of the Workers’ Compensation Board (the “Chair”) or to promulgate fee schedules for health care benefits payable under the nofault system for any services for which the Chair has not prepared and established; and subsection (c) prohibits a provider of health services, as defined in Article 51, in addition to the amount authorized pursuant to Insurance Law Section 5108.
2. Legislative objectives:
Chapter 892 of the Laws of 1977 recognized the necessity of establishing schedules of maximum permissible charges for professional health services payable as no-fault insurance benefits to contain the costs of no-fault insurance. To that end, and pursuant to Insurance Law Section 5108(b), the Superintendent adopted those fee schedules promulgated by the Chair. In addition, the Superintendent, after 2 consulting with the Chair and the Commissioner of Health, established fee schedules for those services for which the Chair has not prepared and established fee schedules.
Since 1977, the workers’ compensation fee schedules underwent annual revisions until the mid-1990s to reflect inflationary increases and to incorporate other necessary enhancements. In turn, the Superintendent adopted those fee schedules through amendments to Insurance Regulation 83. However, in 2002, the Superintendent promulgated an amendment to Insurance Regulation 83, which prescribed that any changes the Chair made to the workers’ compensation fee schedules automatically would apply to no-fault, and therefore, no longer necessitated adoption of the workers’ compensation fee schedules as changes were made to them.
3. Needs and benefits:
In December 2018, The Chair adopted expansive amendments to its fee schedules for medical, chiropractic, behavioral health (otherwise known as the psychological fee schedule), and podiatric services (collectively the “medical fee schedules”) to take effect on April 1, 2019. The Chair contended, in its Regulatory Impact Statement in the December 26, 2018 issue of the New York State Register, that such changes were necessary to ensure that treating providers are paid a reasonable fee for their services so that injured workers may receive high quality medical care in the workers’ compensation system.
Although the expansive changes to the fee schedules may be necessary to maintain quality health services for the workers’ compensation system, the automatic adoption of such sweeping changes for use in the no-fault system within a relatively short period (April 1, 2019) would have a significant adverse impact on insurers’ ability to absorb the health-service-related costs resulting from those changes within that timeframe. Those changes will result in a substantial overall increase (at least a 10% increase has been reported) in total loss payments for no-fault-related health services, which insurers could not have anticipated. Because health service payments account for more than 90% of the total loss costs in no-fault, insurers will need time to carefully study the impact of the changes in the medical fee schedules on no-fault to appropriately adjust no-fault premium rates to absorb the noticeable increase in no-fault claims costs.
Furthermore, pursuant to Insurance Law Sections 3425 and 3426, there is a one-year “required policy period” for automobile policies, which may not be canceled during that period unless as prescribed in the statutes; therefore, policies that are already in effect could not be altered to reflect the sudden increase in loss costs. The Superintendent therefore, deems it necessary to delay for 18 months the adoption of the medical fee schedules that the Chair has prepared and established to take effect on April 1, 2019, and so those fee schedules will take effect on October 1, 2020 for use in no-fault pursuant to Insurance Law 5108.
However, this amendment to Insurance Regulation 83 will exclude certain workers’ compensation ground rules from the 18-month delay, to wit: General Ground Rule 10 in the Workers’ Compensation Chiropractic Fee Schedule, General Ground Rule 13 in the Workers’ Compensation Behavioral Health Fee Schedule, and General Ground Rule 16 in the Workers’ Compensation Podiatry Fee Schedule, which prohibit providers to whom these fee schedules apply from billing under current procedural terminology (“CPT”) codes not listed in their respective fee schedules; and General Ground Rule 19 in the Workers’ Compensation Medical Fee Schedule, which prohibits any chiropractor, podiatrist or provider of behavioral health services from billing under CPT codes in the medical fee schedule. Per the Chair, these rules are not new but clarification of existing rules; therefore, the Superintendent determined it was not necessary to delay their implementation.
Insurance Regulation 83 also is being amended to provide that any references in any workers’ compensation ground rules regarding time limitations within which health services must be performed, as well as any enhanced reimbursement for providers of certain designated services, are inapplicable to no-fault. Insurance Law Section 5102(a) specifically prescribes any time limitations on receiving necessary health-related services. With respect to enhanced reimbursement for providers (20% in addition the fee schedule rate), the Chair, in General Ground Rule 17 of the Workers’ Compensation Medical Fee Schedule, stated that this enhancement was necessary to increase the number of Board-authorized providers in the general medicine specialties. There is no requirement that providers be authorized by the Department to treat no-fault patients, nor is there a shortage of no-fault treating 4 providers in general medicine specialties. Therefore, the Superintendent determined an additional 20% reimbursement increase solely for general medicine specialty providers of no-fault-related health services is unwarranted, and will not be adopted for use pursuant to Insurance Law Section 5108.
This amendment should have no compliance cost impact on applicants for no-fault benefits, insurers, self-insurers, or state and local governments. With respect to any cost impact to health service providers not regulated by the Department, participation in the no-fault system is optional, and the Department has imposed no preauthorization or reporting requirements on these applicants for no-fault benefits. Notwithstanding, this rule only delays the adoption of changes that the Chair has made to the workers’ compensation fee schedules, which the Department is required to adopt pursuant to Insurance Law Section 5108.
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 on any persons affected by the rule.
7. Duplication: This rule will not duplicate any existing state or federal rule.
The Superintendent carefully evaluated alternatives to the 18-month delay in adopting the workers’ compensation medical fee schedules. The Superintendent determined that delaying only increases and not decreases in the fee schedules would cause significant systems issues for both insurers and health service providers, from having to utilize separate fee schedules and apply different ground rules. The Superintendent also considered a shorter implementation delay period, but determined, based on the Superintendent’s expertise as insurance regulator, that an 18-month delay was most appropriate to permit insurers sufficient time to study the cost impact of the fee schedule changes to determine when and how to adjust their rates.
9. Federal standards: There are no minimum federal standards for the same or similar subject areas. The rule is consistent with federal standards or requirements.
10. Compliance schedule:
This amendment shall take effect upon filing with the Department of State. However, the 18-month delay in adopting the Chair’s amended medical fee schedules shall commence on April 1, 2019, the effective date of those fee schedules.
Regulatory Flexibility Analysis for Small Businesses and Local Governments for the Thirty-Fourth Amendment to 11 NYCRR 68 (Insurance Regulation 83)
1. Effect of the rule:
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” as defined in State Administrative Procedure Act Section 102(8), 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 of Financial Services (the “Department”) does not have any information to indicate that any selfinsurers are small businesses.
Local government units make independent determinations on the feasibility of becoming self-insured for no-fault benefits or having these benefits provided by authorized insurers. There are no requirements under the State’s financial security laws requiring local governments to report to the Department or the Department of Motor Vehicles that they are self-insured. Therefore, the Department has no way of estimating how many local government units are self-insured for no-fault benefits.
The types of small businesses affected by this rule are applicants for no-fault benefits, who are typically health service providers not regulated by the Department. Their participation in the no-fault system, however, is optional and the Department has established no preauthorization or reporting requirements with respect to these small businesses. Further, because the Department does not maintain records of either the number of applicants licensed in this state or the number of applicants providing services to injured persons eligible for no-fault benefits, it cannot provide the number of these entities that will be affected by this rule. Notwithstanding, this rule only delays for 18 months the adoption of the most recent amendments to the workers’ compensation fee schedules, which are required to be utilized in the no-fault system pursuant to Insurance Law Section 5108. Although this amendment may have a temporary impact on small businesses in that they may not bill at the higher fee schedule rate for their services until October 1, 2020, such an impact is outweighed by the need to give no- 2 fault insurers time to study the impact the fee schedule changes will have on loss costs so they may appropriately adjust premiums to cover those costs.
2. Compliance requirements:
This amendment will not impose any additional reporting, recordkeeping or other compliance requirements on any small businesses or self-insured local governments affected by this rule.
3. Professional services:
This rule does not require the use of professional services.
4. Compliance costs:
This amendment does not impose any additional compliance costs on small businesses or self-insured local governments.
5. Economic and technological feasibility:
There should not be any issues pertaining to economic or technological feasibility because this rule only delays the adoption of the most recent amendments to the workers’ compensation fee schedules for use in no-fault pursuant to Insurance Law Section 5108.
6. Minimizing adverse impact:
This rule should have no adverse impact on small businesses or local governments affected by this amendment because the amendment only delays the adoption of the most recent amendments to the workers’ compensation fee schedules for use pursuant to Insurance Law Section 5108. The Department anticipates that no small businesses subject to the rule, if any, or self-insured local governments will experience any cost increase because of this amendment.
7. Small business and local government participation:
Interested parties, including small businesses and local governments, will be given an opportunity to review and comment on the rulemaking once it is published in the New York State Register.
Rural Area Flexibility Analysis for the Thirty-Fourth Amendment to 11 NYCRR 68
(Insurance Regulation 83)
1. Types and estimated numbers 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 in State Administrative Procedure Act Section 102(10). Some government entities that are self-insurers for no-fault benefits may be located in rural areas.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
This amendment will not impose any additional reporting, recordkeeping or other compliance requirements on insurers, self-insurers, self-insured local governments, and health service providers affected by this rule. Insurers, self-insurers, self-insured local governments, and health service providers affected by this rule should not need to retain professional services to comply with this rule. This rule only delays for 18 months the adoption of the most recent amendments to the workers’ compensation fee schedules, which are required to be utilized in the no-fault system pursuant to Insurance Law Section 5108.
This amendment does not impose any additional costs on no-fault insurers, self-insurers, selfinsured local governments, and health service providers, because this rule only delays for 18 months the adoption of the most recent amendments to the workers’ compensation fee schedules, which are required to be utilized in the no-fault system pursuant to Insurance Law Section 5108.
4. Minimizing adverse impact:
This rule uniformly affects insurers, self-insurers, self-insured local governments, and health service providers throughout New York State. Therefore, it does not impose any adverse impact on rural areas.
5. Rural area participation:
Interested parties, including those located in rural areas, will be given an opportunity to review and comment on the rulemaking once it is published in the New York State Register. Statement setting forth the basis for the finding that the Thirty-Fourth Amendment to 11 NYCRR 68 (Insurance Regulation 83) will not have a substantial adverse impact on jobs and employment opportunities.
This rule should not adversely impact jobs or employment opportunities in New York State. The amendment only delays for 18 months the adoption of the workers’ compensation fee schedules for use pursuant to Insurance Law Section 5108.