OBS is not compensable according to Judge d’Auguste
“Finally, the parties both cite to statements published on the DOH’s website reflecting its position concerning facility fee reimbursements to OBS facilities:
Reimbursement
35. Does OBS accreditation qualify a private OBS practice to receive a “facility fee”? PHL § 230-d does not address or require reimbursement of an OBS facility fee. Accreditation status does not require a third party insurer to pay a facility fee. An OBS practice is not a health care facility under PHL Article 28 or as defined by PHL § 18. Neither Medicaid nor Medicare pays a facility fee to private physicians’ offices for office-based surgery. DOH does not establish fee schedules or billing guidelines for OBS.
Office-Based Surgery (OBS) Frequently Asked Questions (FAQ’s) for Practitioners, N. Y. State
Dep’t of Health, https://www.health.ny.gov/professionals/office-based_surgery/obs_faq.htm
(last updated Mar. 2014). These statements support the conclusion that State Farm was under no obligation to reimburse Avanguard’s facility fee. Accordingly, summary judgment should be entered in favor of State Farm and A vanguard’s complaint should be dismissed.”
5 Responses
You had me there for a second Jason … this is a civil court case. Its not GFICO v Avanguard … just another ill informed opinion by a lower court judge.
Absent OBS ability to get a facility fee, procedures will be done at an Article 28 … then what is benefit of a doctor going through all the OBS certification processes where there is no benefit for the doctor?
The judge cherry picked the legislation. Nowhere within the regulations does the PHL deny the OBS the right to collect facility fees. In fact, the Insurance Department (DFS)acknowledges that private insurance companies may accept OBS facility fees.
This is not GEICO v Avanguard, which is likely to make a final determination on the matter. It was only argued last March – 9 months ago .. and demonstrates our tax dollars at work when it comes to the 2nd Dept Appellate Division.
Thus, the appellate court still has not spoken on this issue … just one lower court by a pro carrier judge. The issue is not whether an OBS is an article 28. The issue is whether the same procedure, performed at an accredited OBS is entitled to a facility fee. Why should an Article 28 get a facility fee for a discectomy and an OBS does not? Both are permitted to perform the service. Both have the requisite credentials. Both have to go through rigorous protocols to get the certification. Only, the OBS is a bit more limited in what service it can provide.
Judge d’Auguste holds that an OBS facility is entitled to submit a claim, just not at the PAS fee schedule, so the facility gets…zero? Makes no sense. This would be the equivalent of denying a claim by a licensed acupuncturist in its entirety because there’s no fee schedule for licensed acupuncturists. That’s not how no-fault works.
There are a couple of flaws in the judge’s logic. First is that OBS began with the law in 2007. OBS predate the law, and the law did nothing to prevent them from billing. It maintained the status quo. I know of facilities that have been around since the 1990s, but they did little nofault. You would be shocked by the facility fees doctors charged for major medical cases with out-of-network benefits. It exploded when doctors were required to do OBS.
Instead, the law added reporting requirements for doctors using anesthesia. It was largely passed in response to idiotic plastic surgeons doing dangerous procedures without proper safeguards. The Legislature wasnt thinking at all about reimbursement–especially under no-fault.
Anonymous .. thank you. I used the same argument with arbitrator Maslow regarding OBS … whom some consider a no fault intellectual. No dice. He was not smart enough to get the point. Fortunately, most arbitrators – despite what carrier attorneys say, permit the facility fee for OBS. We await the pundits at the second department at this point.
“Send lawyers, guns and money…”