Proposed Amendment to Regulation 83 -- Licensed Acupuncture Fees

Today the New York State Insurance Department published notice of its Proposed Thirty-Second Amendment to Regulation No. 83 (11 NYCRR 68).  The proposed regulation would add new Part L to Appendix 17-C of 11 NYCRR to read as follows:

(L)  Licensed Acupuncture fees

     (a)     A licensed acupuncturist is an individual who has complied with the requirements of Article 160 of the Education Law.

     (b)     The maximum permissible charge for treatment rendered by a licensed acupuncturist shall not exceed the maximum permissible charge for a licensed physician certified to perform acupuncture in accordance with the Official New York Workers' Compensation Medical Fee Schedule referenced in 12 NYCRR 329.3.

The Department's Regulatory Impact Statement for this proposed amendment explains the "Needs and benefits" of this proposed regulatory change as follows:

The Workers’ Compensation Board fee schedules were initially adopted in 1977 and have been revised regularly since that time in order to reflect inflationary increases and to incorporate other necessary enhancements. Similar modifications and improvements have also been applied to those fee schedules established by the Insurance Department for various health care services related to automobile accidents that are not covered in any fee schedule established by the WCB. Periodic revision to the fee schedules is a part of the ongoing process of keeping the fee schedules current and reflective of changes in the health care industry, thereby facilitating access to health care for motor vehicle accident victims while controlling costs.

The WCB currently has a fee schedule for acupuncture services performed by medical doctors certified to perform acupuncture and another fee schedule for chiropractors licensed to perform acupuncture. The WCB does not have a fee schedule for acupuncture services performed by licensed acupuncturists.

The current regulation does not establish the appropriate level of reimbursement for acupuncture treatment rendered by an acupuncturist, which leads to many fee disputes going to arbitration or court to be adjudicated. In order to reduce the number of these disputes, to assure a sufficient pool of health providers, and provide a uniform method of reimbursement by no-fault insurers, this proposed rule states that the maximum permissible charge for treatment rendered by a licensed acupuncturist shall not exceed the maximum permissible charge for a physician certified to perform acupuncture in accordance with the Workers’ Compensation Medical fee schedule contained in 12 NYCRR 329.3.

Pursuant to 11 NYCRR Part 65, Section 65-3.16(a)(6) of Regulation 68 acupuncturists must be licensed in order to be reimbursed for acupuncture treatment rendered to no-fault patients. There is no Department certification requirement for acupuncturists to handle no-fault patients. Acupuncture treatment rendered by licensed acupuncturists is the primary service they perform and for which they bill. The WCB permits an additional fee for the reimbursement of acupuncture treatment rendered by a chiropractor licensed to perform acupuncture as an adjunct service to the primary services that the chiropractor performs and for which the chiropractor bills. The WCB also establishes a fee for reimbursement of acupuncture treatment rendered by a medical doctor certified to perform acupuncture as an adjunct service to the primary services that the doctor performs and for which the doctor bills, which in many instances is greater than the fee permitted to be charged by a chiropractor. Since the acupuncture treatments are the primary service performed and billed by licensed acupuncturists and the acupuncturist is not permitted to bill for any other services, the superintendent has determined that such treatments merit reimbursement at the same rate that medical doctors receive for comparable services.

The establishment by the superintendent of fees for acupuncture treatment rendered by licensed acupuncturists will reduce disputes regarding the fees to be charged, provide for more timely payment of acupuncturist’s charges, and result in a significant reduction in litigation costs that are presently being incurred due to the lack of a fee schedule for licensed acupuncturists. Utilization of a maximum permissible fee for licensed acupuncturists should significantly reduce the number of disputes between insurers and licensed acupuncturists, resulting in more uniform, efficient, and cost-effective processing and payment of no-fault claims.

Pursuant to the accompanying Notice of Proposed Rule Making, public comment on this proposed amendment will be received until 45 days after today, its publication date, or through September 4, 2010.  Comments may be submitted to Buffy Cheung at the Department. 

If adopted and promulgated, this amendment to Regulation 83 will take effect 90 days after its publication in the New York State Register.