Sunday, May 4, 2008

NYS Insurance Department Office of General Counsel April 2008 Opinions

Just posted to the NYS Insurance Department's website are the Office of General Counsel opinions from the first half of April.

Online Insurance Policy Delivery System (April 1, 2008)

1. Pursuant to New York State Electronic Signatures and Records Act (“ESRA”) and the federal Electronic Signatures in Global and National Commerce Act ("E-Sign"), the use of electronic records and signatures is voluntary and no entity or person is required to use an electronic record or electronic signature unless otherwise provided by law. Accordingly, an insurer must obtain the consent of each insured before it can make the insured's insurance policies available online as electronic documents, in lieu of issuing paper copies.

2. A printout of an electronic insurance policy is admissible as evidence in a New York state court proceeding, as long as the court finds that the policy is a true and accurate representation of the electronic record.

Reproduction Cost of a Magnetic Resonance Imaging (“MRI”) Film Necessary to Verify a No-Fault Insurance Claim (April 4, 2008)

When an auto insurer requests MRI films that are necessary to verify a no-fault insurance claim from an assignee health service provider, and the provider furnishes satisfactory reproductions in lieu of the original films, the provider may, consistent with Ground Rule 8 of the New York State Workers’ Compensation Radiology Fee Schedule, charge the automobile insurer five dollars for the first sheet of duplicating film or the first compact disk (“CD”), and three dollars for each additional sheet of film or CD. If the assignee health service provider furnishes the original MRI films, then the provider may not charge the automobile insurer a fee for the films, and the auto insurer must return the films to the provider within twenty days of receiving them, if the provider so requests.

Provider Billing Patient Directly Where the Patient Executed an Assignment of No-Fault Benefits Form (April 8, 2008)

The inquirer reported that his client was involved in a motor vehicle accident and suffered various physical injuries. Shortly after one year following the accident, his client experienced symptoms associated with a Temporomandibular Joint (TMJ) disorder. She went to a dentist, who x-rayed her teeth, and placed some hardware in her mouth. She signed an assignment of no-fault benefits form with all of her TMJ doctors granting them all of her rights and remedies. The no-fault carrier denied her claim on the ground that the claimed injury was not medically ascertainable within one year after the accident.

Past OGC opinions state that a provider may not bill a patient directly where the patient executed an assignment and the insurer denied the claim on the ground that treatment was not medically necessary. The inquirer asked whether the Department's analysis would be different where the insurer denied the claim on the ground that the claimed injury was not medically ascertainable within one year after the accident. The language of the prescribed assignment of benefits (AOB) forms generally preclude the provider from billing the patient directly, except where the insurer denies the no-fault claim because there is a lack of coverage, or the patient violates a policy condition.

The OGC concluded that the "not medically ascertainable within one year of the accident" defense to no-fault benefits is one of lack of coverage. Therefore, the provider may revoke the assignment of no-fault benefits and bill the patient directly. The patient may, however, obtain reimbursement from her health insurer, provided that there is coverage under her health insurance policy.

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Recently added to the NYSID's website is a search engine for OGC opinions dating back to 2000. Check it out and bookmark it.

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