In July 2010, the New York State legislature passed a law -- Chapter 303 of the Laws of 2010 -- amending the mandatory PIP endorsement's intoxication exclusion by requiring New York no-fault insurers to pay for "necessary emergency health services rendered in a general hospital" to persons injured as a result of operating a motor vehicle while in an intoxicated condition or while the person's ability to operate the vehicle is impaired by the use of a drug. That law took effect on January 26, 2011 and earlier that month I blogged here about that new law taking effect.
Yesterday one of my no-fault insurer clients asked me a question about what qualify as necessary emergency health services that eventually led me back to my January 2011 posting for an answer. The question was this:
Question: The named insured driver did not seek or receive any emergency services at the time of a motor vehicle accident. He claimed he was told by the police that he refused treatment at the scene. He was instead arrested, and taken to the police station, fingerprinted, charged with driving while intoxicated, and released to home. The insured claimed he did not recall any conversation with the police or ambulance crew, nor did he recall the accident. Three days after the accident he went via ambulance from his home to the emergency room of a local hospital, where he was diagnosed with and treated for a mild concussion and multiple soft tissue injuries before being released back to home. The injuries relate to the motor vehicle accident. Are the ambulance and ER bills considered necessary emergency health services?
Answer: No.As I pointed out in my January 2011 posting, the then-New York State Insurance Department in its Circular Letter No. 4 (2011) said:
For the purposes of compliance with Chapter 303, the Department interprets “necessary emergency health services” to mean services rendered to a person by or under the supervision of a physician, paramedic, or emergency medical technician to treat the onset of sudden pain or injury and to stabilize the person, provided the person is transported directly from the scene of the motor vehicle accident to the general hospital. Pursuant to this interpretation, once the sudden pain or injury is treated and the person is stabilized, (generally in the emergency room) the no-fault insurance coverage ceases. In order to facilitate timely payment, a hospital should specify what portion of the bill consists of “necessary emergency health services.” If the hospital does not specify what portion consists of “necessary emergency health services,” then a no-fault insurer may request this information. (Bolding, underlining and highlighting added.)
If the insurer could prove that the claimant’s injuries were sustained “as a result of operating a motor vehicle while in an intoxicated condition”, the ambulance and ER bills could be denied as not being “necessary emergency health services” because: (1) the services were not “to stabilize” the person; and (2) there was no transport from the accident scene to the hospital.
This question made me curious to know whether the question of what constitute "necessary emergency health services" has come up and been decided in any reported New York court cases or in any New York no-fault arbitrations conducted under the auspices of the American Arbitration Association. So off to Google Scholar (New York state court cases) and the AAA's No-Fault Award Service page I went.
What I found surprised me. Somewhat.
The term "necessary emergency health services" does not appear in any reported New York state or federal court decisions. Not before or after January 2011. Not at all.
The term does, however, appear in 15 AAA New York no-fault arbitration decisions or awards, all decided since Chapter 303 of the Laws of 2010 went into effect. Digested in chronological order (oldest to newest), here are those awards:
(Arbitrator Kent L. Benzinger, Esq., dated 11/27/11)
Although Geico submitted ER records listing "an ETOH level of 232" for the assignor, the arbitrator concluded that Geico failed to carry its burden of proving that: (1) the assignor was intoxicated at the time of the accident; and (2) such intoxication was the proximate cause of the assignor's injuries. The arbitrator noted that the assignor's vehicle was rear ended in the accident and assignor was not charged with DWI:
In the instant case, the hospital record contains a diagnosis of “ETOH intoxication” and the handwritten notation of ETOH level of 232. However, the record contains no information as to how and when the blood was obtained or even the units of measurement of the final level. Although ETOH in this country is usually measured in mg/dl or milligrams per deciliter which would convert to a BAC of .232 – far above the legal limit - this arbitrator will not speculate as to the method of collection of blood, the procedures taken, or the units of measurements. The hospital record does not contain any lab sheets noting CBC blood tests, values or interpretation.
In addition, the record contains no evidence that any claimed intoxication was the proximate cause of the accident. The Assignor claims his vehicle was rear-ended which is also noted in the police accident report. Through a reference key accompanying the MV104a police accident report, the police officer did not list intoxication as a contributing factor as to the accident in boxes 21 and 22 pertaining to the Eligible Injured Party. The police report also does not list any VTL or criminal charges for intoxication. Finally, the Respondent/Carrier has failed to rebut Assignor’s claims and has not submitted evidence of any convictions or even pending charges for Driving While Intoxicated or alcohol involvement.
The billing at issue was not for "necessary emergency health services" (NEHS). The term appeared in the arbitrator's quotation of Insurance Law § 5103(b)(2). Award to the applicant.
(Arbitrator Sandra Adelson, Esq., dated 11/13/13)
Geico denied payment to applicant hospital "because the patient was operating the motor vehicle in an intoxicated condition.” Award to the applicant based on the arbitrator's conclusion that
[t]he evidence specifically noted that the arbitration record did not definitively establish that the patient was injured as a result of operating the vehicle while in an intoxicated condition. The police report indicated that the patient was unable to speak. There was no basis to ascertain if the patient was injured as a result of operating the vehicle while in an intoxicated condition. The police report documentation that the patient was not able to speak supports the foregoing proposition. Additionally, the patient did not plead to intoxication. Furthermore, a review of the hospital records indicates that the patient was receiving emergency care at applicant hospital. The applicable law states that “that an insurer shall not exclude such person from coverage with respect to necessary emergency health services rendered in a general hospital.”
The assignor has plead guilty to operating a vehicle ability impaired by alcohol, not to DWI.
(Arbitrator Paul Israelson, Esq., dated 5/22/13)
Although applicant's claim totaled $21,687.50, at the outset the arbitrator noted:
[P]ursuant to 11 NYCRR 65-1.1(1)(g), in the event the respondent has demonstrated that the injured person was intoxicated at the time of the subject automobile accident then the applicant would be entitled to payment for only “necessary emergency health services”.
At to the “necessary emergency health services” provided by the applicant to the injured person, the applicant has provided an invoice for emergency room services totaling $6,332.28. The respondent has not provided any evidence to rebut the applicant’s assertion that the cost of the emergency room services totaled $6,332.28, therefore, that is the amount the applicant should receive for providing “necessary emergency health services” to the injured person in the event the respondent has demonstrated that the injured person was intoxicated at the time of the subject automobile accident.
In sharp and irreconcilable contrast to what Arbitrator Benzinger (above) concluded what not sufficient evidence of intoxication, Arbitrator Israelson found:
Concerning whether or not the injured person was intoxicated at the time of the subject automobile accident, the respondent has produced the applicant’s 8/31/11 emergency room record bearing a handwritten note: “Alcohol Intox” in the section entitled, “IMPRESSION”. As well, the respondent has produced the applicant’s 8/31/11 Consultation Report, where it states on page two, under the section entitled “ASSESSMENT”, “EtOH intoxication.” In light of this evidence, it is clear that the applicant concluded that the injured person was intoxicated while in their emergency room. In that the police report for the subject automobile accident states that the accident took place on 8/31/11 at 10:22 pm and the applicant’s emergency room records note 8/31/11 at 10:55 pm as the date and time for the “IMPRESSION” “Alcohol Intox”, I conclude that this evidence demonstrates that the injured person was intoxicated at the time of the subject automobile accident.
Award to applicant for $6,322.28.
(Arbitrator Vincent Esposito, Esq., dated 6/18/13)
Applicant sought payment of fee schedule-reduced billings totaling $9,685.89. Geico timely requested verification by asking the applicant to specify which of the services billed were for "stabilization" purposes and which of the services were not. Applicant did not respond. On that basis, the arbitrator dismissed the claim without prejudice:
The respondent has submitted proof to show that the injured party was operating a vehicle while intoxicated. In spite of this, the No Fault Law section 5103 provides that a respondent would still be responsible for “necessary emergency health services.” This has commonly been referred to as stabilization. The respondent, in a timely manner, asked the applicant to specify which of the services were for stabilization purposes and which of the services were not. The applicant has not replied. The Insurance Department of the State of New York by Circular Letter #4 dated January 12, 2011 discusses this situation. The letter provides in part that if the hospital does not specify what portion consists of “necessary emergency health services” than a No Fault insurer may request this information. It is thus clear that the verification requests were proper. Since they have not been complied with, this proceeding is premature because until all verification is supplied a respondent is under no duty to pay or deny a claim.
(Arbitrator Pamela H. Hirschhorn, Esq., dated 10/9/13)
Geico denied payment of applicant hospital's billing because “No-Fault benefits are excluded to Operators under the influence of drugs.” Applicant argued that NEHS are not excluded even if the assignor was intoxicated and that intoxication was the proximate cause of the assignor's injuries. After applicant filed for arbitration, Geico sent the hospital's billing
Award to applicant for its claimed amount of $5,429.19.out for review to its claims support services. It appears that the claims support representative had no medical qualifications or professional coding certification as evidenced by the letter issued by this service in July, 2013. The claim’s representative indicated that the injured person was “stabilized” in the emergency room at some point prior to discharge and that the allowable fee is $2,069.19. However, respondent failed to submit any peer review or competent medical proof in support of this determination. Respondent’s claims representative’s determination does not constitute prima facie proof that the services were billed in excess of fee schedule. See, Cornell Medical, PC v. Mercury Casualty Co., 24 Misc.3d 58, 884 NYS2d 558 (App. Term 2d, 11th & 13th Dists. 2009). This arbitrator further notes that pursuant to the circular letter issued by the Insurance Department of the State of New York on January 12, 2011, if the hospital bill does not specify what portion consists of “necessary emergency health services,” then a no-fault insurer’s remedy is to request that information from the hospital that rendered the services. See, Circular Letter no. 4, No-Fault Intoxication Coverage: Chapter 303 of the Laws of 2010, State of New York Insurance Department (January 12, 2011). It is clear from a review of the record that respondent failed to issue any requests for additional verification upon receipt of the within billing. See, 11 NYCRR 65-3.5 (b); 11 NYCRR 65-3.6 (b). For all the foregoing reasons, respondent failed to establish prima facie, that the fees charged by applicant are not in accordance with fee schedule.
(Arbitrator Walter P. Higgins, Esq., dated 10/22/13)
In dispute were applicant hospital’s bills in the amount of $25,295.80, amended to the DRG rate of
$14,633.79, for hospital services provided to assignor. The assignor was involved in an automobile accident on 11/17/11 when the vehicle he was driving struck a pole. He either walked one block to his home or drove his vehicle the one block to his home, and then lost consciousness. About 10 or 12 hours later, either he left a message with his estranged wife who called one of his friends to check on him, or he called the friend. The friend then took him to Glen Cove Hospital where he was transferred to the applicant hospital. He sustained small right sided rib fractures, right second metacarpal fracture, jaw and three tooth fractures as well as facial lacerations, and was admitted to the hospital.
Allstate's timely denial of payment stated "With the exception of the rendition of necessary emergency medical services by a general hospital, No-Fault coverage does not apply to a personal injury sustained by any person as a result of operating a motor vehicle while in an intoxicated condition or while his/her ability to operate such a vehicle is impaired by the use of a drug.” In awarding payment of the amended amount to the applicant, the arbitrator concluded:
Under Section 5103(b)(2), effective 1/26/11, ten months prior to this accident, payment is authorized for emergency health services rendered in a general hospital as defined under the New York Public Health Law § 2801(10). I find that Applicant meets the definition of a general hospital as set forth in Public Health Law § 2801(10). Thus, Respondent is responsible for “necessary emergency health services”. The bill does not distinguish between “necessary emergency health services” and services it provided on a non-emergency basis, if any. In that situation, Respondent’s remedy is to request the information from the hospital that rendered the services through the verification process. See Circular Letter No. 4, No-Fault Intoxication Coverage, New York State Insurance Department, 1/12/11. Respondent failed to issue any request for additional verification to determine if any of the services rendered were performed on a non-emergency basis. Respondent instead just denied the entire claim. Since no evidence has been submitted by Respondent that any of the services were rendered on a non-emergency basis, the denial cannot be sustained.
Even though the arbitrator knew of and cited to Circular Letter No. 4 (2011), Allstate's counsel apparently didn't subscribe to this blog or didn't find and review my January 2011 blog posting on the new law or that attorney could instead have argued that the billings were not for NEHS because, under Circular Letter No. 4 (2011), the assignor was not "transported directly from the scene of the motor vehicle accident to the general hospital". No verification needed to draw that conclusion.
(Arbitrator Timothy McNamara, Esq., dated 10/23/13)
Award to applicant for its billed/claimed amount of $416.68. Although Geico provided the arbitrator with "a timely denial together with proof that the eligible injured party was intoxicated at the time of the happening of the accident",
As can be seen [in Insurance Law § 5103(b)(2)], there is exception for emergency room treatments which compel an insurer to make payment for emergency room services notwithstanding the fact that the eligible injured party was intoxicated.
Scratching my head to figure out why Geico denied and defended this one.
(Arbitrator Michelle C. Entin, Esq., dated 1/10/14)
(Arbitrator Michelle C. Entin, Esq., dated 1/10/14)
Geico's denial of the bills at issue stated that assignor was operating her motor vehicle in an intoxicated condition. Geico contended that the assignor lost control of her vehicle on ice and struck a telephone pole. A copy of the police report was submitted. The hospital records provided indicate a blood alcohol level of 220 mg/dl. Geico also submitted a causality review report by Tatiana Sharahy, M.D., which noted that the blood alcohol level was above the legal limit and which stated that the assignor was stabilized in the emergency room from a hemodynamic point of view. In finding for the applicant, the arbitrator concluded:
Based upon the facts of this matter, inasmuch as the services at issue were rendered in the context of emergency urgent care, I find that Applicant is entitled to reimbursement for same as the services are found to be authorized for payment as per the Regulations, irrespective of the intoxication of the Assignor. Finally, as to the notation on the denial regarding billing subject to PPO rates, Respondent submits no evidence of same and accordingly this basis for denial is found to be unsubstantiated.
(Arbitrator Paul Israelson, Esq., dated 4/17/14)
Liberty proved that the assignor's ability to operate a motor vehicle was impaired by the use of a drug (cocaine or an opiate) at the time of the accident and that that impairment was the proximate cause of the accident and assignor's injuries. Most likely because the claim in dispute was for dates of service at the hospital starting one date after the accident and over a period of another 15 days, the award/decision does not discuss NEHS. Claim DENIED.
(Arbitrator Kenneth C. Rybacki, Jr., Esq., dated 5/2/14)
The record contained an uncertified copy of a police accident report indicating that the assignor was arrested for driving while intoxicated, although citation to the law violated is not referenced in the report. Geico requested from the applicant a copy of its ER records and a toxicology report. Geico indicated in the request that if no toxicology test was done, then Geico required written guidelines employed by the applicant regarding blood alcohol levels. If such a document did not exist, Geico required a statement from the attending physician as to why no such test was ordered.
The hospital submitted the entirety of its ER records to Geico, which received those records on 2/4/13. The records indicated that no toxicology test was done. Those records also contained the observations of the attending physicians and nurses as to their observations of the assignor. A letter sent to the respondent with the record indicated that what was sent was the entirety of the assignor’s record and that no toxicology test was performed. Geico requested nothing more from the applicant and did not pay or deny its claim within 30 days of receiving the ER records. For that reason, the arbitrator found in favor of the applicant.
(Arbitrator Teresa Girolamo, Esq., dated 5/27/14)
Upon receipt of applicant's billing for services rendered one day after the assignor's accident, Geico sent out verification letters that stated the following:
We are in receipt of your bill for treatment rendered relating to the above referenced claim. We are in possession of the police report which confirms that the claimant was charged with “Driving While Intoxicated” which emanated from the motor vehicle accident on August 19, 2012. This claim is delayed pending outcome of the criminal charges lodged against the claimant.
Not surprisingly, the arbitrator found that "the letters generated to Applicant did not toll the Respondent’s time to pay or deny this claim." Can't just wait for related DWI criminal charges to be resolved. Award for applicant.
(Arbitrator Mary Anne Theiss, Esq., dated 6/23/14)
No proof of intoxication or proximate ("contributing") cause. Plus, the billing was for emergency room services and
based on Insurance Law §5103, provides that No-Fault coverage shall not be provided in a personal injury sustained by any person as a result of operating a motor vehicle while in an intoxicated condition. Effective January 26, 2011, §5013(b)(2) indicates that payment is authorized for emergency health service rendered in a general hospital, as defined under the New York Public Health Law, §2801(10). This provides that the Respondent is responsible for "necessary emergency health services." Additionally, see Circular Letter No. 4, No-Fault Intoxication Coverage New York State Insurance Department, 1-12-11.
Award to applicant for the claimed amount.
(Arbitrator Stephen Czuchman, Esq., dated 8/14/14)
Allstate delayed payment of applicant's ER billing based on not having received an NF-2 from the assignor.
However, it is well-settled that an insurer must accept a hospital facility form NF-5 submitted on behalf of a provider of health services in lieu of a NF-2 (See, 11 NYCRR § 65-3.5(g)) and may not delay a hospital claim for the patient’s NF-2. Nyack Hosp. v. Encompass Ins. Co., 23 AD3D (2d Dept 2005). Accordingly, I find it was improper for respondent to delay the claim for a NF-2. With respect to the intoxication defense, pursuant to a 2011 Insurance Department Circular Letter, as of 1/26/11, no-fault insurers are prohibited from excluding from coverage necessary emergency health services rendered in a general hospital, including emergency health services like those at issue here. New York Department of Insurance, Circular Letter No. 4. 01-12-11. For the foregoing reasons, based on a fair preponderance of the credible evidence, I find denial of this claim is overdue.
(Arbitrator Lester R. Hill, Esq., dated 9/26/14)
At issue in this arbitration was whether what medical services which were provided to the intoxicated EIP to stabilize the EIP’s condition.
The EIP was involved in a motor vehicle accident on September 11, 2011. The EIP was transported to the applicant's facility from the scene of the accident and was hospitalized through September 20, 2011. The EIP pled guilty to Vehicular Assault in the First Degree and Driving while Intoxicated. The arbitrator found, based upon the toxicology reports contained in the hospital record of the applicant, that the EIP was in fact driving while intoxicated at the time this motor vehicle accident.
Allstate sought verification of the claim by asking the applicant to advise which portion the hospital bill was for NEHS. A doctor from the applicant sent a letter advising Allstate that the EIP was transferred from the ICU unit to the hospital floor on the third day of the admission and that in the doctor's opinion the first two days of the hospital admission were for NEHS.
The applicant's one-page bill for the entire 10-day hospitalization totaled $20,924.79. When the EIP arrived at the emergency room he was unconscious and was subsequently treated for multiple fractures and a cerebral hemorrhage. The hospital bill did not delineate what services were provided, with the appropriate CPT codes, and on which dates in the hospital admission the services were provided to enable Allstate or the arbitrator to determine the appropriate reimbursement for the "necessary emergency health services".
For this reason, the arbitrator continued this case for eight weeks for the applicant to provide a breakdown of the emergency medical services that were provided in the first two dates of the admission (pursuant to the applicant's doctor's letter), the CPT codes for those procedures, and the DRG rate for those services.
Despite the arbitrator's directive, the applicant made no post-hearing submission. Without such a
submission, the arbitrator lacked information to determine what medical services were provided to the EIP that were to be reimbursed pursuant to Insurance Law 5103 for “necessary emergency
health services”. For that reason, the arbitrator dismissed applicant's claim without prejudice.