Regulatory changes that affect no-fault claims during pandemic
These new regulations in N.Y. will affect the handling and litigation of no-fault medical claims during the COVID-19 crisis.
Most everyone has been affected, directly or indirectly, by the COVID-19 pandemic. The no-fault insurance industry is no exception. Insurers, medical providers, attorneys, claimants and others have all felt, to some extent or another, the devastating effects of the novel coronavirus. The following are some of the regulatory changes that affect the handling and litigation of no-fault claims during this pandemic.
Telemedicine for no-fault patients
The New York Worker’s Compensation Board adopted emergency regulations to permit the use of telemedicine in certain situations in order to maintain social distancing and prevent the further spread of the novel coronavirus. As the reimbursable fees for medical services in no-fault insurance claims are contained in the Workers’ Compensation Fee Schedule, these emergency regulations apply to no-fault claims. In fact, the New York Department of Financial Services published the following Health Insurance Frequently Asked Question concerning the COVID-19 coronavirus:
Q: “I am using no-fault automobile insurance to get medical treatment. Can I use telemedicine under no-fault automobile insurance?
A: Yes, the Workers’ Compensation Board adopted two emergency regulations to allow telemedicine in some circumstances for social distancing purposes due to COVID-19.”
The first emergency regulation, published in the NYS Register on April 1, 2020, and effective for dates of service between March 16, 2020, and June 13, 2020, provided for the permissive use of “Telemedicine, using interactive audio and video telecommunications system that permits real-time communication between an authorized medical provider and a claimant in accordance with guidance from the Centers for Medicare & Medicaid Services … where medically appropriate for social distancing purposes due to the outbreak of COVID-19 to assess current disability status.” “Medically appropriate” is defined as including “discussion of test results or imaging, follow-up assessments, or counseling. It does not include treatment where physical examination is a necessary component, such as initial visits or assessments, physical therapy or other types of manual therapy.”
The regulation provides that the following CPT codes are to be used by physicians and psychologists to bill for telemedicine: 99441 (telephone evaluation and management services provided to an established patient; 5-10 minutes of medical discussion), 99442 (11-20 minutes of medical discussion) and 99443 (21-30 minutes of medical discussion). Chiropractors, acupuncturists, physical therapists, and occupational therapists are limited to using only 99441.
The second emergency regulation, which superseded the previous regulation, was published in the NYS Register on Aug. 5, 2020, with an effective date of July 21, 2020 (expiring Oct. 18, 2020). This regulation expanded the use of telemedicine as follows: “Telemedicine, using two-way audio and visual electronic communication, or treatment via telephone, may be used … where medically appropriate for social distancing purposes due to the outbreak of COVID-19 during the state of emergency …. The authorized provider shall indicate on their report that such assessment was done using telemedicine by use of modifier 95 and indicating a place of service as 11, or telephonically by indicating place of service as 02. The provider shall also confirm the employee’s identity as well as provide basic information about the services the employee is receiving by telephone or telemedicine.” With respect to billing, the following CPT codes are to be used: E&M (Evaluation & Management) 99212 – 99214 (by physicians), 99212 (by chiropractors, physical and occupational therapists and acupuncturists) 90832, 90834, 90837 and 90853 (by psychologists and licensed CSW’s).
Late billing under no-fault
The No-Fault Regulations, 11 NYCRR 65-1.1, Proof of Claim; Medical, Work Loss, and Other Necessary Expenses, provide:
In the case of a claim for health service expenses, the eligible injured person or that person’s assignee or representative shall submit written proof of claim to the Company, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered …. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person or that person’s representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.
A claim for medical benefits is subject to denial, therefore, if submitted more than 45 days after the date of service, unless clear and reasonable justification for the lateness is submitted in writing. The Regulations do not define what is and is not “clear and reasonable justification” for late submission.
Would, for example, a medical provider’s or its biller’s temporary office closure or cessation of business operations due to the novel coronavirus outbreak be considered a reasonable excuse? The New York Department of Financial Services (DFS) issued its Circular Letter No. 8 (2020) to health and accident insurers to give guidance regarding the suspension of certain procedures and deadlines, including pre-authorization, concurrent review, retrospective review and appeal and submission timeframes during this outbreak.
DFS further published, on its official website, its Health Insurer Guidance on Coverage Requirements for Novel Coronavirus (COVID-19), which includes: Question 35 Does Circular Letter No. 8 apply to No Fault Insurance? “No-fault insurance does not have preauthorization or concurrent review requirements. Claims under no-fault insurance may be reviewed retrospectively. Providers have 45 days to submit claims under no-fault insurance, or later with a reasonable justification. The state of emergency for COVID-19 would be considered a reasonable justification.”
Thus, although not specifically contained in an official position letter, it is clear that DFS’s position is that a delay in billing caused by the COVID-19 state of emergency would be considered reasonable.
Tolling of the statute of limitations
For claims against an insurance company, the statute of limitations for commencing an action for no-fault insurance benefits is six years from the date a claim becomes overdue. Mandarino v. Travelers Property Casualty Ins. Co. For claims against self-insurers and MVAIC, the statute of limitations is three years. Contact Chiropractic v. New York City Transit Authority.
On March 7, 2020, Governor Cuomo issued Executive Order 202, declaring a disaster emergency in the State of New York due to the novel coronavirus, COVID-19. That executive order was supplemented 54 over the course of almost five months. Significantly, Executive Order 202.8, issued March 20, 2020, provides, inter alia:
I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020
Thus, the statute of limitations for no-fault actions, or any other court actions, was tolled through April 19, 2020.
On April 7, 2020, Executive Order 202.14 was issued, continuing the “suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order 202, for 30 days until May 7, 2020.” The tolling provisions were extended several more times. As of Aug. 6, 2020, the tolling of the statute of limitations has not been extended beyond Aug. 5, 2020. As most courts have now re-opened, at least partially, and are accepting new filings of lawsuits, there does not appear to be any reason to believe that the statute of limitations will be extended any further.
Due to the aforementioned state of emergency and the resulting court closures, the number of published court decisions appeared to decline over the past several months. Nevertheless, several no-fault decisions of interest have been issued.
David M. Barshay is a member of Sanders Barshay Grossman, PLLC, in Garden City. Steven J. Neuwirth, a member of the firm, assisted in the preparation of this article.
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