Questions and Answers - A Complete List

Table of Contents
I. Coinsurance, Co-payments, Deductibles and other Patient Cost Sharing Issues
II. Medicare
III. Self-Pay Patients
IV. Other Surcharge Questions
V. Out of State Payors
VI. Covered Lives
VII. Insurance Premiums
VIII. State and Local Governmental Payments
IX. Worker´s Compensation/No-Fault Payments
X. Federal Governmental Payments
XI. Election Process
XII. Interplan Telecommunications System (ITS)
XIII. Clinical Laboratories

I. Coinsurance, Co-payments, Deductibles and other Patient Cost Sharing Issues

Question Number Question Answer
1 How does the HCRA surcharge apply in fixed dollar copay arrangements? An electing payor can pay the HCRA surcharge on their insured´s copayment in one of two ways:
  1. Utilize billing example #2; this method calculates the surcharge before any payments are made, then subtracts out the fixed dollar copayment which reimburses the provider for the amount they have paid to the Public Goods Pool (PGP) for surcharge obligations owed from the amount they received from the patient.

    Hospitals will report the copayment received from the patient on Line 10 of their PGP report for payors that choose this option.

  2. Submit the associated surcharge amount on the patient´s copayment directly to the PGP via the payor´s PGP report on Line 2e. If the payor chooses this option, they must notify the billing provider in writing of such action in a timely manner.

    Designated HCRA providers receiving notification from payors of this option will report the copayment amount received from the patient on their PGP report as follows:
    • Hospital Inpatient: Line 17
    • Hospital Outpatient: Line 19
    • Comprehensive Diagnostic & Treatment Center (D&TC): Line 17
    • D&TC-Ambulatory Surgery Services: Line 18
Please note that in the absence of the electing payor notifying the provider that they have chosen option #2 above, the provider´s "default" is always to report the fixed dollar patient payment on line 10 (Line 11 for Diagnostic & Treatment Center-Ambulatory Surgery Services ) of their PGP report and pay the surcharge out of the fixed dollar payment. It is the provider´s obligation to affirmatively clarify what choice has been made. This becomes an auditable portion of a HCRA audit.
2 How does the HCRA surcharge apply in coinsurance arrangements? Where a percentage coinsurance patient obligation exists, both the payor and the patient are responsible for paying a percentage of the claim, and a percentage of the surcharge, in accordance with the terms of the subscriber contract or plan agreement. The HCRA surcharge is paid as follows:
  • Electing payor: Submits payment on the claim amount to the provider for the payor´s share of the total due; submits associated surcharges directly to the PGP on the amount they paid to the provider. The provider would report the revenue received from the electing payor on Line 5c (Line 6c for Ambulatory Surgery Centers) of their PGP report (see Billing Example #3). Additionally, if the electing payor is paying their subscriber´s surcharge portion, they must properly notify the provider, in writing, of their intent. The provider would then bill the subscriber for the balance of the claim, but not the surcharge. Upon receipt of the subscriber´s payment of the claim amount, the provider will report such payment on line 17(Co-Pay or Deductible Patient Payments) (Line 18 for Ambulatory Surgery Centers) where a surcharge is not calculated to be owed.
  • If the electing payor is not paying their subscriber´s surcharge portion, the provider will bill the patient the balance of the claim, and the elector/self pay surcharge percentage rate. The provider will report the revenue received from the patient on line 10 (line 11 for Ambulatory Surgical Centers) of their PGP report.
  • Non-electing payor: Provider assesses non-elector surcharge percentage rate on bill to non-electing payor (plus, if applicable, an additional GME percentage on inpatient services) . Non-electors submit their percentage of the total due, including their share of the billed surcharge, to the provider. The provider will then report the revenue received on Line 12 (a or b) (Line 13 for Ambulatory Surgery Centers) of their PGP report and pay the surcharge from the revenue received and reported.
  • Patient: Submits their percentage of the total due, including the billed surcharge, to the provider. The provider will then report the revenue received on Line 10 (Line 11 for Ambulatory Surgery Centers) of their PGP report and pay the surcharge from the revenue received and reported.
3 How does the HCRA surcharge apply for the payment of claims in meeting a fixed dollar deductible in a plan year? Each payor´s respective share of the total bill, of which the HCRA surcharge is part of, is determined in accordance with the terms of the respective subscriber contract or plan agreement. Where a patient´s liability is limited to a fixed dollar deductible maximum in a plan year, the patient´s liability for the deductible is limited to that fixed dollar amount. Since surcharges are considered part of the total bill, any surcharges payments made for covered services, made by the patient, are applicable in meeting the patient´s maximum deductible amount for the plan year. However, the application of the surcharge on claims that are paid by the patient cannot increase the patient´s total due to an amount that exceeds the maximum fixed dollar deductible amount.

Further, since the provider does not know where the patient is in meeting his/her deductible for the plan year, it is important that the payor, when adjudicating the claim, indicate the amount for which the provider must bill the patient. This calculation should clearly show both the amount to bill for the services performed, plus the surcharge amount to be billed.
4 Can payors use alternative approaches to calculate and segregate HCRA surcharge obligations between multiple payors? Yes. Other approaches are acceptable provided that payors using other approaches must ensure that the total value of surcharge due is fully reflected in any shared billing arrangement. All payors must concur with the payment arrangement. Further, payors must inform providers of any such approaches and payment arrangements.
5 Under coordination of benefits principles, is the total percentage allowance for the secondary payor the same percentage allowance as that of the primary payor? Yes. PHL Section 2807-j (2)(g), provides that the total percentage allowance for the secondary payor, under coordination of benefits principles, shall be the same percentage allowance applicable to payments made by the primary payor. Coordination of benefits principles generally apply to group policies or plans when an individual is covered by two or more plans providing benefits or services for the same treatment. States typically have rules or regulations designed to determine the order in establishing each payor´s liability. New York State Insurance Department has promulgated coordination of benefits regulations, which may be found in 11 NYCRR 52.23. If coordination of benefits does not apply to a particular claims situation, each payor is responsible for its individual percentage allowance, calculated based on the payor´s election status. An example of such a situation would be when an individual has coverage that is designed to supplement part of a basic package of benefits.
6 What percentage allowance should be used in situations where multiple payors that are responsible for claims but coordination of benefits principles do not apply? As indicated in the previous answer, coordination of benefits principles applies when multiple policies provide duplicative benefits. However, when one policy/plan serves to supplement the other (one provides coverage over and above that of the other), coordination of benefits does not apply and each policy/plan is treated individually for purposes of determining its applicable percentage obligation.
7 HMOs and other managed care-type plans have subscriber contracts which indicate that services rendered by network providers are paid in full subject to a copayment, which is stated as a specified dollar amount. Does HCRA mandate that such plans collect surcharges on such copayments? If so, would the plan be in violation of its subscriber contract? HMO or other managed care-type plan contracts with providers often include clauses which preclude the provider from charging an enrollee anything beyond the stated copayment amount. If HCRA requires that surcharges be collected on copayment amounts, would providers be in violation of such contracts? If the providers are precluded by contract from collecting surcharges, would the provider or the plan be responsible for payment of the surcharges? HMOs and other managed care-type plans should follow the instructions provided in the response to Question 1 of this section. The Department does not have authority over, and will not become involved in, the contractual relationships between payors, providers and covered persons. The underlying tenet of HCRA is deregulation. Furthermore, HCRA does not invalidate provisions of insurance contracts or health benefits plans which limit a covered person´s financial obligation for patient care services costs. Accordingly, contractually stated fixed dollar copayments and deductibles cannot be increased by the HCRA surcharges. Where contractual relationships between beneficiaries and payors require a fixed dollar patient copayment or deductible only, the beneficiary´s fixed dollar liability will not increase as a result of the application of the HCRA surcharges.
8 How do surcharges apply to sliding fee scale and fixed dollar payor liabilities such as when a payor has a contractual agreement to pay a laboratory or other provider a specified amount for a service? The aggregate payment obligation of a third party payor is a combination of the patient services payment plus the surcharge(s). The extent to which a patient is required to share in the cost of this aggregate payment obligation is dictated by contractual agreements reached between payors, beneficiaries and providers which the Department does not regulate.
9 Where does a provider report patient services revenue received from a non-electing secondary payor when the primary payor is an electing payor and the coordination of benefits principles apply? Although non-electing secondary payors will receive the benefit of the lower surcharge rate based on the election of the primary payor under coordination of benefits principles, they cannot pay the PGP directly; they must pay their surcharge obligations to the provider. Hospitals and Comprehensive Diagnostic and Treatment Centers will report their patient services revenue and surcharges received on line 1 and line 10 of their PGP reports. Diagnostic and Treatment Centers providing Ambulatory Surgical Services will report patient services revenue received on line 1, 2 and 11, and report received surcharges on line 2 and 11.
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II. Medicare

Question Number Question Answer
1 Do the HCRA surcharges apply to payments made under a Medigap/Medicare Carve-Out policy? Where a Medigap/Medicare Carve-Out policy is making payments to a HCRA designated provider of services as a result of providing coverage for Medicare coinsurance and/or deductibles, surcharges do not apply because the payor is not considered to be acting as a "non-Medicare" payor.

The surcharge will apply where a Medigap/Medicare Carve-Out policy is making payments to a HCRA designated provider of services as a result of a person's exhaustion of Medicare benefits (i.e. inpatient length of stay exceeds Medicare covered maximum days), or non-covered services for which Medicare does not cover (i.e. private duty nursing, personal care items, tv and telephone) because the payor is considered to be acting as a "non-Medicare" payor.
2 Does the HCRA surcharge apply to services provided to a patient who is eligible for payments as a beneficiary under Medicare? It is important to distinguish surcharge treatment between Medicare Part A and Part B eligibility. Generally, Medicare Part A benefits are automatically available to persons on their 65th birthday. For patients eligible for payments as a beneficiary under Medicare Part A, surcharges do not apply to payments made for Medicare covered services.

Medicare Part B coverage, on the other hand, is optional on the part of the individual. The individual must apply and pay premiums in order to be eligible for payments as a beneficiary under Medicare Part B. For individuals who enroll, the applicability of the surcharges follows the same rules as Medicare Part A. For individuals not enrolled in Medicare Part B, the surcharge rate is based on the payor's election decision. For patients eligible for payments as a beneficiary under a Medicare Advantage plan, surcharges do not apply to payments made for Medicare covered services. However, where a payor is making payments to a designated provider of service as a result of a person's exhaustion of Medicare benefits, or lack of Medicare benefits for a particular service, such payor shall be subject to HCRA surcharges, at rates based on their election decision, because the payor is considered to be acting as a "non-Medicare" payor. Those patients making payments for an uncovered Medicare services and without additional insurance, would be obligated to the Self-Pay/Uninsured surcharge rate.

There is no obligation to the covered lives assessment or the regional GME percentage for Medicare beneficiaries, regardless of whether they exhaust their Medicare benefits or not.
3 Are Medicare supplemental policies or employer group policies that provide inpatient coverage for persons eligible for payments as beneficiaries of Medicare obligated to fund to a covered lives assessment (if an obligated electing payor) or a regional GME percentage surcharge (if an obligated non-electing payor)? Countable persons for purposes of covered lives assessment calculations never include persons who are eligible for payments as beneficiaries under Medicare. Likewise, for payors who have not elected into the Public Goods Pool, and incur an inpatient bill on behalf of a Medicare beneficiary, this is no regional GME percentage surcharge.
4 How does the covered lives assessment liability apply to family units where one or more members are eligible for Medicare? In a family unit of two persons where only one individual is eligible for payments as a beneficiary of Medicare, then the unit is deemed an individual unit for purposes of the covered lives assessment calculation. In a family unit of two persons where both are eligible for Medicare, there is no covered lives assessment. In a family unit of three or more and only one is eligible for Medicare, then the family unit assessment applies.
5 Do surcharges apply to employer provided health benefit plans for working individuals who are eligible for Medicare? Pursuant to the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) and the Deficit Reduction Act of 1984 (DEFRA), federal mandates, some privately insured employee health benefits plans for working Medicare eligible individuals are required to make patient service payments before Medicare. However, in such instances, the private insurer does not have a surcharge liability, unless the service is an otherwise uncovered Medicare service or where there is an exhaustion of Medicare benefits.
6 Do electing payors owe a covered lives assessment per diem on a Medicare beneficiary when that person has exhausted their Medicare benefits? Section 2807-t of the Public Health Law excludes "persons" described as Medicare beneficiaries from purposes of countable persons for the covered lives assessment per diem. Section 2807-j of the Public Health Law describes payors and payments obligated to the surcharge, which includes payments for services for persons who have exhausted their benefits. Although a person may have exhausted their Medicare benefits, for purposes of excluding them as countable persons for the covered lives assessment per diem, they are still deemed as "Medicare beneficiaries."
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III. Self-Pay Patients

Question Number Question Answer
1 How do the HCRA surcharges apply to self-pay patients? Self- pay patients are those that lack third party coverage in whole or in part, which includes those that have exhausted their health care benefits or receive services not covered by their plan. As uninsured persons, they must make surcharge payments directly to providers when billed. Since these persons are not third party payors that must make an election decision whether to elect into the Public Goods Pool or not, their surcharge obligations are limited to the Self-Pay/Uninsured/Unspecified rate. Additionally, these patients are not required to pay the regional GME percentage surcharge on inpatient services.
2 Does the 2% administrative fee that providers can deduct from their Public Goods Pool reports apply to what is collected from uninsured (self-pay) patients? No. The 2% administrative fee applies only to revenue received from those third party payors, as defined in PHL Section 2807-j, that did NOT make an election with the PGP (non-electors). Uninsured patients are not third party payors as defined in PHL Section 2807-j and cannot make an election to submit directly to the Public Goods Pool. Providers are given a 2% administrative fee for collecting the surcharge on the state´s behalf from those payors that had an election decision to make and chose to not elect(non-electors).
3 If a consumer does not have health coverage, are they obligated to pay the HCRA surcharge? Individuals lacking third party coverage in whole or in part, are obligated to pay the Self-Pay/Uninsured surcharge rate directly to the provider when billed. New York Individuals lacking third-party coverage are encouraged to contact the programs below to determine if they qualify for coverage: Child Health Plus (800)-698-4543; Family Health Plus (877)-934-7587; Healthy New York (866)-432-5849. More detailed information can be found under Health Insurance Programs found on www.nyhealth.gov.
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IV. Other Surcharge Questions

Question Number Question Answer
1 How do surcharges apply to bills for inpatients when their stay covers periods during which the surcharge percentage changes due to legislation? (e.g. 8.95% surcharge rate on 3/31/09, 9.63% surcharge rate on 4/1/09) (Example rates apply to electing payors to the Public Goods Pool and self-pay patients). When a discharge is made on or after the surcharge percentage rate changes (e.g. 4/1/09) for a patient whose inpatient stay began prior to the rate change, the surcharge percentages apply as follows:
--for those paying on a per diem rate, the applicable surcharges percentage rates apply on the days the patient was an inpatient. As an example, the patient's length of stay was from 3/29/09- 4/3/09. The 8.95% surcharge rate (for electing payors and uninsured) applies for 3/29/09- 3/31/09. The 9.63% surcharge rate applies for 4/1/09-4/3/09.

--for those paying on a per case basis (DRG methodology), the surcharge rate that is in effect at the time of discharge applies to the entire stay. Using the example above, the 9.63% surcharge rate applies from 3/29/09-4/3/09.
And, for those specified non-electing third party payors, as defined in PHL §2807-s(1-a)(b), a regional GME percentage surcharge also applies to payments made for inpatient services.
2 Where payments to providers are based on capitation and other bundled arrangements, how do providers and payors determine how much of the payment is subject to the surcharge? PHL §2807-j(3)(a) and (b) defines net patient service revenue "...as all moneys received for or on account of..." hospital services or diagnostic and treatment centers services, "...including capitation payments allocable to..." hospital and diagnostic and treatment center services.

Although the HCRA does not provide an explicit methodology as to how payors and providers should determine the appropriate allocation, surcharges are due to the Public Goods Pool on the portion of the capitated or bundled payment that covers surchargeable services. Any portion of the capitation or bundled payment that covers non-surchargeable services is exempt from the surcharge.
3 Do Independent Practice Associations (IPAs), who commonly receive capitated rates for their services, have an obligation to the HCRA? IPAs are not third party payors and therefore are not subject to the HCRA surcharge requirements on their revenue. The HMO, rather than the IPA, is responsible for making payment for the associated surcharges.
4 Is revenue received by a HCRA provider for discrete physician billings subject to a HCRA surcharge? Effective with dates of service April 1, 2011, and after, revenue received for all discrete (separately billed) physician services (M.D. or D.O. only) is no longer subject to a HCRA surcharge. Prior to April 1, 2011, only revenue received for discretely billed private practicing physician services (including faculty practice plans) were exempt from HCRA surcharges. As such, prior to April 1, 2011, employed physicians were subject to the HCRA surcharge.
5 Clarify the definition of private physician billings from surchargeable providers (e.g., hospitals, clinics) which are statutorily exempted from the surcharge requirements. Who determines whether surcharges apply to hospital and/or clinic based physician claims? The physician services must be discretely billed (thus excluded from the billing provider's institutional rates for services rendered) and the physician or faculty practice plan must be organized as a private practice. However, there are no formal standards used by the Department to validate whether a physician or faculty practice plan meets the qualifying exemption criteria as a private practice. Only the provider subject to the HCRA surcharge (e.g., hospital) is in a position to know whether its physician billings are made on behalf of private practicing physicians or on behalf of the hospital as part of its outpatient service. Therefore, the affected provider is required to make this determination based on the specific circumstances which govern the relationship between such billing entity and the associated physician or faculty practice plan. The billing provider should relay such information to the payor through the claiming process.

Note: Effective with dates of service April 1, 2011, and after, revenue received for all discretely billed (separately billed) physician services (M.D. and D.O.s only) is no longer subject to a HCRA surcharge. Prior to April 1, 2011, only revenue received for discretely billed private practicing physician services (including faculty practice plans) were exempt from HCRA surcharges. As such, billings prior to April 1, 2011, for employed physicians were subject to the HCRA surcharge.
6 Will providers be required to submit any surcharge or assessment amounts on cases where either the payor or patient refuses to pay the surcharges or assessments, but does pay the patient service charges? Providers make payments to the Department's Office of Pool Administration (OPA) against net patient service revenues as defined in Public Health Law 2807-j (3). Revenue received from patients is subject to provider remittance unless a specific exclusion exists in HCRA. If the patient pays for the service but not the surcharge, the provider reports what has been received and pays a surcharge to the OPA out of what was received. The provider is encouraged to pursue collection for the unpaid balance.
7 When are electing payors responsible for paying patient service surcharges? Electing payors are categorized as either monthly filers or annual filers. For electing payors that have been designated by the Department as monthly filers, Public Goods Pool reports and corresponding surcharge payments are due on the 30th day following the report month (adjusted for weekends and holidays). Since payor reports are a summary of the surchargeable claims that were paid that month, this is usually when the payor adjudicates and pays a claim, but may also include those situations where a payor has made a partial payment for patients services prior to the time a claim is formally adjudicated. For electing payors that have been designated by the Department as annual filers, Public Goods Pool reports and corresponding surcharge payments are due on the 30th day following the last day (December 31) of the reporting year, adjusted for weekends and holidays.

Non-electing payors remit surcharge payments to the designated provider for patient services when billed.
8 Is patient service revenue that a HCRA designated provider receives from another HCRA designated provider subject to the HCRA surcharge? Patient services revenue received by a HCRA designated provider, from another designated HCRA provider, presumably for sub-contracted patient services, does not have a surcharge obligation and therefore should not bill a surcharge to the provider they provided services for. The provider must still report the patient services revenue on their Public Goods Pool report but will deduct it on line 2c (3c for Ambsurgs) under Non-Assessable Revenue.

The HCRA designated provider paying for the sub-contracted service presumably will be billing for that service and depending on who they bill, may have an obligation for the surcharge on these services. The sub-contracted HCRA provider must report the revenue on their Public Goods Pool report, but will ultimately deduct it under the non-assessable portion of the report.
9 Do the HCRA surcharges apply to revenue received by a HMO-owned D&TC for health care services provided to the subscribers of that HMO? Revenue received by a HMO-owned D&TC for services provided to subscribers of that HMO is exempt from the surcharge. This exemption includes covered and uncovered services and applies whether the HMO is the primary or secondary payor.
10 Do the HCRA surcharges apply to patient services revenue recovered by a collection agency and the collection agency's fees? The surcharge is based on funds actually collected. Whether or not (collection) fees may be netted against collections before application of the surcharge, depends on how the collected funds and fees are booked. If the gross amount collected is booked as revenue and the collection fee expensed, the surcharges would be applicable to the gross amount collected. If the collection fee is offset and only the net amount booked as revenue, the surcharge would be applicable to the net amount. Oftentimes, these accounts are written off as uncollectible accounts receivable when sent to the collection agency. Collections after write off are normally recorded as "recoveries". Recoveries are then netted against current year Bad Debt expense, thereby increasing current year net profits. The same rules would apply, i.e. if the gross collections were recorded as a recovery and the collection fee expensed, the surcharge would be on the gross amount -- if netted, and the net amount recorded as a recovery, the surcharge would be on the net amount.
11 Clarify whether the surcharges apply to swing beds in a general hospital or extended care beds in a primary care hospital? Patient revenue received for swing beds and extended care beds is only exempt from surcharges when the payment is based on a nursing home payment (bed is used as a nursing home bed and the patient meets the required nursing home medical eligibility criteria for admission).
12 Do the surcharges apply to Alternate Level of Care (ALC) services provided in a general or primary care hospital? Yes, the surcharges apply to ALC services.
13 How do surcharges apply in billing situations where an insured patient pays the total bill, including the surcharges, prior to submitting the claim to their payor for reimbursement? Providers must undertake efforts to identify whether the patient's third-party payor is an active electing payor to the Public Goods Pool during the time the service was incurred, in order to apply the appropriate surcharge on the bill:

  1. Patient is insured and insurer is listed as an active electing payor for the applicable payor type category (health, workers compensation, etc) on the Department's Elector List during the service period:
    • The surcharge percentage to be added to the bill is the elector rate percentage
  2. Patient is insured for this service and insurer is not an active electing payor for the applicable payor type category (health, workers compensation, etc) on the Department's Elector List during the service period:
    • The surcharge percentage to be added to the bill is the non-elector rate percentage, plus, if applicable, an additional regional GME percentage.
    • If the patient is not insured for this service, assess the Self-Pay Uninsured rate
The provider is responsible for remitting surcharges to the Pool when payment for the services is paid by the patient. The patient would remit the bill to their payor for reimbursement and the payor would provide appropriate reimbursement for service expenses, including associated surcharges that have been paid directly by the patient. The payor would provide reimbursement to their member (patient) consistent with established subscriber contract terms. An electing payor would not have any duplicate obligation for paying this surcharge amount to the Pool since they have presumably already reimbursed the member for the surcharge.
14 There are instances where a patient may appear to be a self-pay (uninsured) patient or a provider may not know whether a patient has health insurance. Clarify whether a designated provider is responsible for determining whether a patient has health insurance. Although there may be situations where a provider may not know whether a patient has health insurance, providers should not simply bill the self pay surcharge rate in those instances. Providers should undertake reasonable efforts to identify whether a patient is insured and determine whether the third-party payor is on the Department's Elector List in order to determine the appropriate surcharge percentage.

Providers that do not pay appropriate surcharge amounts to the PGP on patient services revenue that they are responsible for due to their failure to request insurance information from patients may be incurring a liability by following such practice.

When a provider files a monthly report, its surcharge liability is based on patient services revenue received during month reporting for. While the provider has no liability related to revenue from electing payors, it has a full liability to the PGP on any revenue from non-electing payors as well as revenue from most patient payments.

The additional liability may be disclosed where a patient turns over a provider bill to its insurer or self-funded plan who in turn makes payment to the provider. The third party payor would thus be known at the time the provider makes payment to the pools and such payment liability would be based on the election status of the third party payor.
15 Are payments made to HCRA designated providers for medical services rendered to Native Americans subject to the surcharge? Payments made to HCRA designated providers for services rendered to Native Americans are not in themselves exempt from the surcharge. There is a NYS administered program that provides comprehensive dental services for the Tuscarora and Tonawanda Indian Reservations but does not provide reimbursement for inpatient services. Payments made directly by NYS under a program that does not have as a program component, direct reimbursement to hospitals for inpatient services, are exempt from the surcharge.

Self-insured plans or fully insured policies covering medical benefits for Native Americans are fully subject to the HCRA surcharges at a rate based upon the election decision of the payor providing the coverage. In addition, if the payor is a specified third-party payor as described in PHL Section 2807-s(1-a) and provides inpatient coverage to insureds whose primary residence in within NYS, it is also obligated to a covered lives assessment per diem (if an elector). If the payor is not an elector, a regional GME percentage surcharge applies (based on the region of NYS where the hospital resides) on an inpatient claim.
16 Clarify whether an insurer that offers its commercial health benefits product to its own employees is considered to be self-insured for employee health benefits. The insurer would not be considered a self-insured entity in applying the provisions of HCRA provided the benefit package is the same as that offered and marketed commercially and the insurer accounts to their state insurance department or other state oversight agency for such benefit package and otherwise complies with any state reporting requirements.
17 Are payments made to HCRA providers by the Indian Health Service subject to the HCRA surcharges? No. Payments made to HCRA providers by funds of the Indian Health Service (IHS) are exempt from HCRA surcharges since the IHS is a federally funded health program for American Indians and Alaskan natives. Payments from the IHS are also exempt from the regional GME percentage on inpatient claims.
18 What is the 2 percent administrative fee and when does it apply? Designated providers receiving surcharge payments from non-electing third party payors, are entitled to retain two percent of the surcharge owed to the PGP. It is intended to be compensation for the additional administrative responsibilities for collecting the HCRA surcharge from these payors.
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V. Out of State Payors

Question Number Question Answer
1 Do the HCRA surcharges and assessments apply to out of state payors? Third party payors, as defined in PHL §2807-j, regardless of their state or country domicile, must make a decision whether to elect, and pay their surcharge obligations on surchargeable claims directly to the Public Goods Pool, at a reduced percentage rate, or not elect, and pay a substantially higher surcharge percentage rate to the provider of service when billed. In addition, certain payors, whose policy provides inpatient coverage on an expense incurred basis, would be obligated to either a covered lives assessment on insureds residing in NYS, if an electing payor with the Public Goods Pool, or, a regional GME percentage surcharge when being billed for an inpatient claim, if a non-elector.
2 Clarify how the surcharges apply to out-of-state governmental programs. For dates of service prior to April 1, 2012, payments made to HCRA designated providers by governmental agencies from other states, including out-of-state Medicaid programs, were fully subject to the HCRA surcharges at rates based on their election status. For dates of service April 1, 2012 and forward, out-of-state Medicaid programs are considered Unspecified Payors, and subject to the Unspecified Payor/Self-Pay surcharge rate, when billed by the provider, but no covered lives or regional GME percentage surcharge. Providers are to ignore the Elector List with regards to electing states and their Medicaid program and assess the Unspecified Payor/Self-Pay surcharge rate on all bills to the out-of-state Medicaid program.

Please note, out-of-state governmental programs with inpatient coverage are not obligated to a covered lives assessment (if an elector) or the regional GME percentage (if a non-elector) unless the program is making payments to providers in its role as an employer for its employees. In this instance, the out-of-state governmental program would have a covered lives obligation for those insured whose primary insured's legal residence is within New York State, or, would have a regional GME percentage obligation if a non-elector, when billed.

Other out-of-state governmental programs are not affected by this April 1, 2012 decision, and must make an election in order to be obligated to the reduced surcharge percentage.
3 How do the HCRA obligations apply to worker´s compensation and/or no-fault coverage? Payments to designated providers made by payors providing coverage pursuant to any states workers' compensation law, or auto no-fault law are subject to the HCRA surcharge at rates based on the payor´s election status, but no regional GME percentage or covered lives assessment obligation.
4 Do the HCRA surcharges apply to revenue received by designated providers for medical services provided to diplomatic agents? No. Under the provisions of Article 34 of the Vienna Convention, 23 U.S.T.3242, diplomatic agents shall be exempt from all taxes, whether national, regional, or municipal. The Supremacy Clause of the US CONST., Article VI, Clause 2, provides that treaties entered into by the United States are the "Law of Land" to which state law must yield. Consequently, the Department has elected not to contest assertions of exemption from HCRA surcharges made by foreign diplomatic missions covered by the Vienna Convention which are self-insured for purposes of providing health insurance coverage to their employees. Additionally, any payments made by the foreign diplomatic agent themselves to designated providers of services for their portion due, (percentage coinsurance amount, deductible or uncovered services) will also have no surcharge obligation, or regional GME percentage.

This exemption should not be construed as one which exempts the payor of health care benefits for all foreign national or foreign governmental employees from paying surcharges. Further, this exemption would not extend to those situations where a foreign government has elected to provide health insurance coverage to its diplomatic agents through a health plan purchased from a private insurance carrier. In these situations, responsibility for payment of the HCRA surcharge rests with the private insurance carrier, at rates based on their election status, plus if applicable, a regional GME percentage, when billed.
5 How do the HCRA surcharges apply to foreign governmental agencies? Payments to designated HCRA providers made directly by foreign governmental agencies are considered "unspecified payors" or payors under the HCRA. As such, revenue received by designated providers from them is subject to the Self-Pay/Unspecified surcharge rate and no regional GME percentage or covered lives assessment.
6 How do the HCRA surcharges apply to foreign countries with nationalized healthcare systems? Payments to designated HCRA providers made directly by the foreign country´s nationalized healthcare systems are considered "unspecified" payors under the HCRA. As such, revenue received by designated providers from them is subject to the Self-Pay/Unspecified surcharge rate and no regional GME percentage or covered lives assessment.
7 How do the HCRA surcharges and covered lives assessments/GME apply to private foreign insurers or foreign self funded plans? Private foreign insurers and foreign self funded plans have the same election decision to make as domestic insurers and self funded plans. If they elect into the Public Goods Pool, their surcharge obligation is the same as the Self-Pay/Unspecified percentage rate, payable directly to the Public Goods Pool, plus, if applicable, a covered lives assessment per diem. If they don't elect, they will be obligated to the higher surcharge percentage, and if applicable, a regional GME percentage on inpatient hospital services, when billed.
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VI. Covered Lives

Question Number Question Answer
1 If a New York resident uses a New Jersey hospital, does the covered lives assessment apply to the electing payor even though the HCRA surcharge percentage does not apply to the New Jersey hospital claim? The imposition of covered lives assessments is completely unrelated to claims and is applicable without regard to whether services are rendered at all. Pursuant to Public Health Law §2807-t, covered lives assessments are based on the number of primary insured, individual/family units residing in New York State who are on a payor's membership roles for whom inpatient coverage is provided on an expense incurred basis. The primary insured's legal residence will determine which of the eight regions of the state a covered lives per diem is owed.
2 When multiple payors provide coverage for non-duplicated, inpatient hospital services, the covered lives assessment may be apportioned between/among payors. How should apportionment be calculated? Apportionment is entirely the responsibility of the payors. The Department requires each payor to pay 100 percent of the covered lives assessment unless two or more electing specified third-party payors covering separate components of inpatient care benefits for a single contract holder have entered into a written agreement to apportion the covered lives assessment. The aggregate of the apportioned covered lives assessment payments must result in the payment of 100 percent of the required assessment. Further, apportioning may occur only between payors that have elected; apportioning payors must maintain a copy of their written apportionment agreement(s) on file while the apportionment is in effect and for a minimum period of six years from the end of the year following termination thereof; apportioning payors are required to provide certified reports to the Department regarding their apportionment agreements and arrangements upon audit.
3 Are Integrated Delivery Systems treated as payors, providers or both for purposes of the patient services surcharge and the covered lives assessment? IDSs operate under Article 44 of the Public Health Law and, as such, are payors that have the option of electing to make payments directly to the Department's Office of Pool Administration (OPA). IDSs must meet all HCRA requirements applicable to payors. General hospitals and clinics providing IDS services are providers for purposes of the net patient service revenue assessment provisions of HCRA. As such, they must make payments against net patient service revenue received from any non-electing payor, including the IDS.
4 If a single card-holder has insurance from one insurer that provides hospital inpatient medical and surgical coverage, and has insurance from a second insurer that provides inpatient mental health and substance abuse coverage, can the two insurers apportion for the card-holder? Yes, as long as the two insurers have timely reached a mutual agreement in writing to such apportionment and provide unduplicated coverage for different components of inpatient coverage. The percentage of liability between the insurers must total 100%.
5 Do covered lives payment obligations apply to foreign students attending school in New York and students studying abroad? No. Foreign students attending school in New York State on student visas and students studying abroad whose legal residence is not NYS, but rather their foreign country, are not considered New York State residents for purposes of establishing covered lives obligations. It should be noted that this situation applies only to covered lives payments and not to the regional GME percentage surcharge. If the foreign insurer providing coverage to the student is a non-elector, a regional GME surcharge percentage will be applicable to inpatient hospital claims, when billed if they are a specified third party payor pursuant to PHL 2807-s(1-a).
6 How does the HCRA apply to accident-only policies (e.g., some little league, travel and homeowners policies)? Accident-only policies that provide inpatient coverage on an expense incurred basis are NOT required to participate in the Professional Education Pool established by HCRA. This exemption applies to both the covered lives assessment (if an elector) and the regional GME percentage surcharge on inpatient claims (if a non-elector).
This exemption does NOT apply to HCRA surcharges on claims for the Indigent Care and Health Care Initiatives Pool. These policies are subject to the HCRA surcharge at rates based on the payor's election status. Further, this exemption applies to accident-only policies; it does not apply to policies that provide health coverage for sickness, illness, and disease related medical claims.
7 Do specified third party payors have a covered lives obligation when the annual maximum benefits of a plan have been reached for an individual prior to the termination of the plan year? Yes. PHL §2807-t(5)(a) does not provide for an exclusion or exemption from covered lives obligations if annual maximum plan benefits are reached before the end of the plan year. Specified third party payors must continue to remit the appropriate monthly assessment amount for each individual and family unit appearing on its membership roles during any part of a given month.
8 Is there a covered lives assessment or regional GME percentage surcharge obligation on student health or student accident policies? Effective for dates of service April 1, 2005 and forward, payors providing coverage to a person covered under a student policy issued pursuant to Article 43 of the NYS Insurance Law (generally, non-profit medical and dental indemnity insurers), or a blanket student accident, blanket student health, or blanket student accident and health, are exempt from covered lives assessments, when an elector with the Public Goods Pool. "Blanket" refers to policies issued to colleges/schools as the policyholder. This exemption applies to either third party payors or self funded plans providing such coverage. This exemption does NOT apply to the Indigent Care and Health Care Initiatives Pool surcharge, which is paid by surcharges assessed on claims from designated HCRA providers, at rates based on the election status of the payor.
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VII. Insurance Premiums

Question Number Question Answer
1 What is the HCRA obligation for "stop loss" insurance arrangements? Accident and health "stop loss" insurance generally is a product sold to a self-insured employee benefit plan that limits the financial risks to the self-insured plan. It is typically written with individual and/or aggregate deductibles. If the covered expenses paid by a self-funded plan exceed such deductibles, the self-funded plan is indemnified or covered by the "stop loss" insurer. It is important to note that the "stop loss" policy is a contract between the self-funded plan and the "stop loss" insurer. From the point of view of an insured employee or a health care provider, the "stop loss" arrangement would be invisible, since the self-funded plan or its administrator would continue to pay claims even if the individual and/or aggregate deductibles are reached. The self-funded plan is simply reimbursed by the stop-loss insurer for amounts in excess of the individual and/or aggregate deductible limits. Under these circumstances, HCRA considers the self-insured plan as the payor responsible for remitting the appropriate surcharges, based on their election decision, and, if applicable, the regional GME percentage or covered lives assessment.
2 What are "minimum premium plans" and how do HCRA surcharge obligations apply to such plans? A minimum premium plan is a fully insured plan in which the insurer, not the policyholder (employer), is responsible for the payment of plan benefits. In these types of arrangements the policyholder reduces its premium by making a special arrangement with the insurer so that the normal reserve components of the premium are not included. In its place, the policyholder establishes and funds a special account. However, the insurer pays all claims using its checks and in accordance with its policy with them. Since "minimum premium arrangements" are fully insured plans, HCRA surcharges are applicable to the insurer, rather than the policyholder, at rates based on their election decision with the Public Goods Pool, and if inpatient coverage is provided, either a regional GME percentage or covered lives assessment.
3 Do the HCRA surcharges apply to Flexible Spending Accounts (FSA), Health Savings Accounts (HSA), or Health Reimbursement Accounts (HRA)? Not directly. FSAs, HSAs, and HRAs are not considered third party payors for purposes of establishing surcharge or assessment obligations. For purposes of the HCRA surcharges and assessments, FSAs, HSAs and HRAs are considered reimbursement accounts for unreimbursed qualified medical expenses. However, since most patient services revenue that HCRA providers receive are subject to a HCRA surcharge, most invoices for their services will include a HCRA surcharge, and, possibly a regional GME percentage surcharge for inpatient claims. The information below outlines the HCRA surcharge percentages that apply to each reimbursement account for payments made for surchargeable services:

FSAs:

The FSA is strictly a reimbursement account for unreimbursed medical expenses funded by either the employee's redirected salary and /or employer contributions. As such, an FSA account is not a third party payor within the meaning of PHL §2807-j, §2807-s, or §2807-t, and therefore, plays no role in determining the surcharge percentage on a surchargeable claim.

  • If the individual has insurance coverage for the service, the surcharge percentage on the bill for services is always determined by the election status of the primary payor. Covered lives assessment obligations are applicable to the insurer if it is a specified third party payor, as described in PHL §2807-s and §2807-t, and, the insurer is an elector with the PGP. If the insurer is not an elector, and the provider is billing for inpatient services, the bill should reflect an additional regional GME percentage surcharge.
  • If the individual does not have insurance coverage, or lacks coverage for a particular service, then they are "self-pay" and the surcharge on the claim will be the Self Pay/Uninsured rate, pursuant to PHL §2807-j(2)(e), with no regional GME surcharge for inpatient claims.

HSAs:

An HSA is available to virtually anyone who has coverage under a qualifying high deductible health plan (HDHP). The HSA is strictly a reimbursement account for unreimbursed medical expenses funded by either the employee and/or employer contributions. As such, an HSA account is not a third party payor within the meaning of PHL §2807-j, §2807-s, or §2807-t, and therefore, plays no role in determining the surcharge percentage on a surchargeable claim.
  • Since the individual must have insurance coverage (HDHP) to participate in a HSA, the surcharge percentage is always determined by the election status of the primary payor. In addition, covered lives assessment obligations are applicable to the HDHP, if it is a specified third party payor, as described in PHL §2807-s and §2807-t, and, the insurer is an elector with the Public Goods Pool. If the insurer is not an elector, and the provider is billing for covered inpatient services, the bill should reflect an additional regional GME percentage surcharge, in addition to the non-elector surcharge percentage.

Example: Husband has family HDHP coverage and the wife has individual HDHP coverage. The wife's HDHP will be primary for her claims, and the husband's HDHP will be primary for his claims.

HRAs:

The HRA is strictly a reimbursement account for unreimbursed medical expenses funded solely by the employer. As such, an HRA is not a third party payor within the meaning of PHL §2807-j, §2807-s, or §2807-t, and therefore, plays no role in determining the surcharge percentage on a surchargeable claim.
  • If the individual has insurance coverage, the surcharge percentage on the claim is determined by the election status of the primary payor. In addition, covered lives assessment obligations are applicable to the insurer if it is a specified third party payor, as described in PHL §2807-s and §2807-t, and, the insurer is an elector into the Public Goods Pool. If the insurer is not an elector, and the provider is billing for covered inpatient services, the bill should reflect an additional regional GME percentage surcharge, in addition to the non-elector surcharge percentage.
  • If the individual does not have insurance coverage, or lacks coverage for a particular service, then they are "self-pay" and the surcharge on the claim will be the Self Pay/Uninsured rate, pursuant to PHL §2807-j(2)(e), with no regional GME percentage surcharge for inpatient claims.
4 Do the HCRA surcharges apply to dental plans? When dental services are provided by a HCRA designated provider, as defined in PHL §2807-j(1-a)(a), (Article 28 general hospitals, and their extension clinics, diagnostic and treatment centers providing comprehensive primary care, and, diagnostic and treatment centers providing ambulatory surgical services) the HCRA surcharge applies at rates based on the third party payor's election status with the Public Goods Pool. If the dental plan provides inpatient hospital coverage, and the plan is a specified third party payor as defined in PHL §2807-s, there is also an obligation to pay the regional GME percentage surcharge or covered lives assessment, depending on the election status of the plan.
5 Do the HCRA surcharges apply to payments made by church benefit plans? Church benefit plans which provide disability and/or health benefits to church employees are fully subject to the surcharges and assessments at rates based on their election status with the Public Goods Pool, and where inpatient hospital coverage is provided, the regional GME percentage surcharge or covered lives assessment, whichever is applicable. There is no provision in the Public Health Law that exempts payors from the surcharge requirements based on the payors' tax exempt status under the Internal Revenue Code. Benefit plans assuming risk for the provision of health benefits for covered employees are self-insured for purposes of the surcharge requirements and as such, are no different than other self-funded plans insuring their employees.
6 In situations where a trust fund exists, is it the trust fund or the entity represented by the trust fund (employer) responsible for making an election decision with the Public Goods Pool? The entity bearing risk for providing medical benefits for covered employees is the one that would elect to pay HCRA surcharges directly, if they so chose. For purposes of requirements of the HCRA, the entity is considered self insured, and as such, is subject to the surcharges, at rates based on their election status, and, either a covered lives assessment obligation for their insured residing in NYS if an elector, or a regional GME percentage surcharge on inpatient claims if a non-elector.
7 How do the surcharges apply to life annuity and/or liability policies (e.g., some life insurance and some homeowner's policies). For HCRA surcharge purposes, a distinction must be made between such policies where the contractual liability of the payor for rendered services is solely triggered by a negligent act (or some other event) and traditional health insurance policies. For example, "liability type" policies such as homeowners' policies, by design, are typically written to reimburse the homeowner/policy owner for a loss occasioned by a negligent act or some other event occurring on the property of the homeowner/policy owner. Conversely, traditional health insurance policies provide accident and health, worker's compensation, no-fault and similar types of coverage.

Payors making payments to designated HCRA providers under such "liability policies", are not "third-party payors" as defined in PHL §2807-j (1-a)(c) and therefore are not obligated to make an election decision. Payors in these instances are considered unspecified payors and their surcharge liability is limited to the uninsured rate pursuant to PHL §2807-j(2)(e) with no regional GME percentage surcharge or covered lives assessment.
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VIII. State and Local Governmental Payments

Question Number Question Answer
1 Clarify whether and how the surcharges apply to state and county governmental agencies? Not all patient services revenue received directly from New York State and its local governmental agencies are subject to a surcharge when paying HCRA providers for services. Only patient services revenue received from New York State and its local governmental subdivisions that are specifically assigned pursuant to Public Health Law §2807-j(2)(d) are subject to a HCRA surcharge. The assigned obligations are identified as:
  • 1. New York State local governmental agencies for services provided to local correctional facility inmates (services provided to inmates in confinement facilities operated by any NYS county), (all other NYS local governmental programs are exempt from the HCRA surcharge on payments made, (this does NOT include local governments acting in their role as an employer for medical coverage for their employees).
  • 2. New York City Corrections, (services provided to inmates in confinement facilities operated by the City of New York), and,
  • 3. New York State governmental agencies making state administered payments that reimburse New York hospitals for rendered inpatient services to eligible individuals (NYS programs making state administered payments and authorized to pay NYS Medicaid inpatient rates in accordance with PHL §2807-c(1)(a)). This includes, but may not be limited to, NYS governmental programs making payments for eligible individuals under NYS Medicaid, NYS Department of Corrections for prison inmates, NYS Office of Mental Health for residents of state operated psychiatric centers, and, the NYS Office for People With Developmental Disabilities for residents of state operated developmental centers.
Patient services revenue received from the above mentioned entities are subject to a reduced rate (Medicaid/State Governmental Agencies rate). If the NYS governmental agency is an electing payor with the Public Goods Pool, the agency must pay their surcharge obligations directly to the Pool*. If the NYS agency is not an elector, the provider is responsible for remitting the NYS Medicaid/State Governmental Agencies surcharge percentage rate to the Pool and should bill the surcharge on the claim to the program/agency. Note that payments made to designated provider by private insurance coverage purchased through NY government programs, or by self-insured NY governmental agencies for employee health benefits are fully subject to surcharge and covered lives/GME obligations (with inpatient coverage) based upon the election decision of the organization providing coverage. Electing payors for such coverage must pay their surcharge and covered lives obligations directly to the Public Goods Pool. Providers receiving patient services revenue from non-electors are obligated to pay the higher surcharge percentage and for, inpatient services, a regional GME percentage, to the Public Goods Pool, and should assess the surcharge percentages on their claims to the non-elector. ∗ This directive does not necessarily apply to counties in NYS that have elected. If the NYS county shows payor type of "6" on the Elector List, that indicates that the county has elected in for surcharge payments attributable to medical claims for their inmates residing in county operated confinement facilities. If so, the county will pay their surcharge obligation on these claims directly to the Public Goods Pool. If the county is on the Elector List but is not a payor type "6," then some other department within that county has elected for some other program, not related to the payment of claims for their county inmates. If this is the case, providers are responsible for remitting the NYS Medicaid/State Governmental Agencies surcharge percentage rate to the Pool and should bill the surcharge on the claim to the county operated correctional facility.
2 Are New York State local governmental agencies or their programs subject to the HCRA surcharge or covered lives/regional GME percentage surcharge? There are only two instances where a New York State local government is subject to HCRA surcharges:
  • 1. When making payments for inmates in confinement facilities operated by any NYS county. The surcharge percentage is the "NYS Medicaid/State Governmental Agencies" rate, and no covered lives assessment, if an elector or regional GME percentage on inpatient claims, if a non-elector.
  • 2. When acting as an employer for the local government´s self funded employee benefit plan (i.e. workers compensation coverage or employee health insurance coverage). In this instance, the local government is treated like any other self funded plan for their employees' benefits and must make an election decision to elect in and pay their HCRA surcharge obligations and covered lives (no covered lives obligation for providing coverage pursuant to the NYS Workers Compensation Law) directly to the Public Goods Pool, or not elect and pay higher HCRA surcharge percentage and regional GME percentage obligations directly to the provider when billed.
3 What entities are defined as local correctional facilities, within NYS, for purposes of the surcharge and negotiated rate provisions of the HCRA? NYS county-sponsored correctional agencies, including those sponsored by the City of New York (the five boroughs), are subject to HCRA surcharges and reimburse designated providers in accordance with the Medicaid fee schedule. The HCRA surcharge rate is at the reduced Medicaid/State Governmental Agencies rate, (and no regional GME percentage) regardless of whether the county correctional office, or the City of New York´s correctional office elects into the Public Goods Pool or not. If the county or the City is an electing payor with the Public Goods Pool AND our Elector List on our web sites indicate payor type "6," then the county-sponsored correctional agency submitted the election application themselves (rather than another office within the county unrelated to inmate patient care) and the correctional agency will be responsible to pay their surcharge obligations directly to the Pool via Public Goods Pool payor reports. If the county is an elector, but not payor type "6", or is not on the Elector List, then the provider is responsible for remitting the surcharge to the Pool and should bill the surcharge on the claim to the county.
4 Are payments made to designated providers on behalf of persons enrolled in the Regional Pilot Projects subject to the HCRA surcharge? Payments made as the result of private insurance coverage purchased through government programs such as the Regional Pilot Projects programs are subject to the HCRA surcharge and, where inpatient hospital coverage is provided, the regional GME percentage surcharge or covered lives assessment, if applicable. The surcharge rate is based on the election decision of the organization providing coverage. The Regional Pilot Project ended March 31, 2009.
5 Are payments made to designated providers on behalf of persons enrolled in the Child Health Plus insurance program subject to HCRA surcharges? Yes. Child Health Plus (CHPlus) is a NYS public health insurance program for children under 19 years of age without health insurance and who do not qualify for Medicaid. There are multiple insurers approved to enroll children into the CHPlus program.

Payments made by CHPlus insurers to HCRA designated providers for services provided to CHPlus enrollees are subject to surcharges and a covered lives assessment for inpatient coverage*, if the payor is an elector obligated to pay the surcharges directly to the Public Goods Pool. If the CHPlus insurer is a non-elector, it would be obligated to pay the higher non-elector surcharge percentage rate directly to the provider when billed, and, where an inpatient claim is paid, a regional GME percentage surcharge.

∗ Please note that each CHPlus enrollee stands as an individual for purposes of the covered lives calculation. All policies issued under the program are individual policies and currently there is no family coverage. As such, for CHPlus electing payors providing inpatient coverage to more than one child within a family, a separate "individual unit" covered lives assessment is owed for each child.
6 Do the HCRA surcharges apply to payments made to designated HCRA providers for services provided under the NYS Medicaid Prenatal Care Assistance Program (PCAP)? Yes. The PCAP is a NYS Medicaid program. Just as with any other NYS Medicaid payment coming directly from the NYS Medicaid Program, associated surcharge payments are issued by the program to the Public Goods Pool, if the HCRA provider (Article 28 hospital, comprehensive D&TC, or ambulatory surgical center) has completed form DOH-4405, authorizing the Medicaid Program to pay the surcharges directly to the Public Goods Pool on their behalf. If the provider has not submitted form DOH-4405, associated surcharge payments are issued to the provider instead, in a check issued separately from the Medicaid payments. The provider is then statutorily obligated to remit the surcharges to the Public Goods Pool within 5 days of receipt, via the Report of Medical Assistance Surcharge, Payments for Non-Electing Providers. This report form is sent with the surcharge check(s). Failure to remit the surcharges to the Public Goods Pool within 5 days of receipt of receiving the surcharges subjects the provider to penalty and interest.

Please note that for NYS governmental entities making payments for NYS programs other than the NYS Medicaid program, and that are authorized to pay the NYS Medicaid rates for services, these governmental entities should be checked against the HCRA Elector List, found on either the Department´s Web site: www.nyhealth.gov/regulations/hcra/ or, on the Office of Pool Administration´s (OPA) Web site: www.hcrapools.org to determine if the NYS governmental entity is an elector. Providers who find the entity on the Elector List know that the program is obligated to pay their surcharge obligations directly to the Public Goods Pool. Those not listed on the Elector List should be billed the surcharge, at the reduced NYS Medicaid surcharge percentage, if they are subject to a HCRA surcharge. If providers are not sure if the NYS governmental program is subject to a HCRA surcharge, they may send an email to: bimamail@health.state.ny.us
7 Do the HCRA surcharges apply to payments made to designated providers by the NYS Liquidation Bureau from funds collected and maintained in the following "Security Fund" accounts : the New York Property/Casualty Insurance Security Fund, the Public Motor Vehicle Liability Security Fund and the Workers´ Compensation Security Fund? Yes. The Security Funds are maintained to pay claims covered by policies issued by insolvent NY insurers. The Security Fund is funded by assessments on insurance premiums, and dividends from insolvent insurers' estates'. The Security Funds pay claims covered by workers compensation, property/casualty policies, and auto no-fault policies pursuant to NYS Insurance Law.

For purposes of the HCRA, the Security Fund´s surcharge obligation when billed by a HCRA designated provider is at the NYS Medicaid/State governmental agencies rate, payable directly to the HCRA designated provider. There is no covered lives obligation or regional GME percentage.
8 How do the HCRA surcharges apply to payments made by managed care organizations to HCRA designated providers on behalf of NYS prison inmates under a contract with the NYS Department of Corrections? Solely for the purposes of the HCRA surcharges, managed care organizations in such situations are considered to be acting as the agent for the state or municipality and therefore are subject to the NYS Medicaid/State Governmental Agencies surcharge rate. There is no covered lives obligation or regional GME percentage surcharge.
9 Do the HCRA surcharges apply to payments made to designated providers by NY public benefit corporations? Yes, but different obligations apply depending on the role played by the corporation. Payments made by public benefit corporations which qualify for designation as a "state government agency" (as defined in Section 1299-a (13) of the Public Authorities Law and in PHL Section 2801(7)), are subject to the NYS Medicaid/State Governmental Agencies surcharge rate when the entity is acting in its role as a state government agency. For example, payments made to a designated provider by a public transportation authority for injuries sustained by passengers using the authority´s transportation system are subject to the NYS Medicaid/State Governmental Agencies surcharge rate since such payments are being made in the authority´s role as a government agency. Some examples of a public transportation authority include passenger services provided by Metropolitan Transportation Authority (MTA), Amtrak, Capital District Transportation Authority (CDTA), and the NYS Thruway. Public transportation does not include services of a taxi cab, limousine, or a privately owned bus service.

However, payments made by public benefit corporations in connection with employee health is fully subject to the HCRA surcharges at a rate based upon the election decision of the organization providing coverage, AND where inpatient hospital coverage is provided, a covered lives obligation or regional GME surcharge. Payments made by public benefit corporations in connection with coverage for workers compensation or auto no-fault are also fully subject to the HCRA surcharges at a rate based upon the election decision of the organization providing coverage, but do not pay a covered lives or regional GME directly to the Public Goods or to a provider. Under the HCRA provisions, public benefit corporations, in these situations, are acting in their role as an employer rather than a governmental agency.
10 Do the surcharges apply to revenue a designated provider receives from the New York State Office of Temporary and Disability Assistance for medical services provided in connection with disability determinations? Payments made by the New York State Office of Temporary and Disability Assistance for medical services provided in connection with disability determinations are exempt from the HCRA surcharges since such medical services are performed for the primary purpose of determining eligibility for payments under the Social Security Act, not for the purpose of medical treatment.
11 Does the HCRA surcharge apply to revenue received by designated providers from the New York State Office of Temporary and Disability Assistance for services provided in connection with paternity testing to establish child support obligations? Payments made by the New York State Office of Temporary and Disability Assistance for medical services provided to establish child support obligations are exempt from the HCRA surcharges since such medical services are performed for the primary purpose of establishing child support obligations, not for the purpose of medical treatment.
12 Does the HCRA surcharge apply to revenue received from a municipality for durable medical equipment? When a designated provider of services receives revenue from a municipality for durable medical equipment purchased for a specific patient, the revenue is patient services revenue subject to the surcharges. When a designated provider of services receives revenue from a municipality for a bulk purchase of durable medical equipment for the county´s clinic the surcharges do not apply since such revenue is not considered to be patient services revenue.
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IX. Worker´s Compensation/No-Fault Payments

Question Number Question Answer
1 Do HCRA surcharges apply to payments made pursuant to the NYS Workers´ Compensation Law, NYS Motor Vehicles Reparations Act, NYS Volunteer Ambulance Workers Benefit Law, and NYS Firefighters Benefit Law? Payments made by payors to designated providers pursuant to the NYS Workers Compensation Law, the NYS Motor Vehicle Reparations Act, the NYS Volunteer Ambulance Workers Benefit Law, or the NYS Firefighters Benefit Law are subject to the HCRA surcharge, at rates based upon the payor´s election decision with the Public Goods Pool but no covered lives obligation or regional GME percentage surcharge.
2 Are the HCRA surcharges included in the outpatient fee schedule issued by the NYS Worker´s Compensation Board and NYS Department of Financial Services for auto no-fault? The Worker´s Compensation Board and the NYS Department of Financial Services (formerly the NYS Insurance Department) did not amend their Worker´s Compensation or Motor Vehicles Reparations Act outpatient fee schedules to include the HCRA surcharge obligations. The surcharge is applicable when the service is provided by a designated HCRA provider, at a rate based upon the election decision of the payor (but no covered lives assessment or regional GME percentage surcharge).

Electing payors are obligated to report and pay the surcharges on their Public Goods Pool payor reports. When providers receive such revenue from non-electing payors, they are obligated to pay the higher non-electing surcharge rate to the Public Goods Pool and should assess this surcharge on their bills to the non-electing payor.
3 When employers choose to make payments to designated providers for services rendered to employees with minor work-related injuries, rather than submitting the claim to their workers´ compensation carrier, what surcharge rate is applicable? Within the limited circumstances provided under Section 110 of the NYS Workers´ Compensation Law, employers making payments in these instances are considered "unspecified" payors whose HCRA liability is limited to the Self-Pay Uninsured/Unspecified rate when billed by HCRA designated providers. There is no obligation in these instances to the regional GME percentage surcharge.
4 For purposes of the HCRA surcharges, is a person´s status as a Medicare beneficiary taken into account when workers´ compensation payors are making payments to HCRA designated providers? Yes. For Medicare covered services, payments to HCRA providers by workers compensation payors are exempt from HCRA surcharges for services Medicare would cover. For services that are not eligible for coverage by Medicare, the workers compensation payor would owe a HCRA surcharge, at rates based on the election status of the workers compensation payor, but no covered lives assessment or regional GME percentage surcharge.
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X. Federal Governmental Payments

Question Number Question Answer
1 Do the HCRA surcharges apply to revenues received from federal governmental agencies? In general, payments made directly by federal governmental agencies are exempt from the HCRA surcharges. This exclusion does not automatically apply to payments made by federal governmental agencies in connection with employee health, workers' compensation and no-fault benefits (unless such payments are exempt pursuant to federal law as provided in the response to the following question) since, under the HCRA provisions, governmental agencies in this situation are acting in their role as employers rather than as governmental agencies. Consequently, payments to designated providers made by employee health benefits plans remain fully subject to the HCRA surcharges at a rate based upon the election decision of the organization providing coverage, and where inpatient hospital coverage is provided, the regional GME percentage assessment, if applicable.
2 Does the HCRA surcharge apply to payments made by federal government programs or federal health benefit plans? Payments made under the auspices of the following to designated HCRA providers are exempt from the surcharges since they are considered to be payments made directly by federal governmental agencies:
CHAMPUS
Veterans Administration (VA) provider payments
Job Corps
Federal Correctional Facilities

In its role as an employer, the payments by both the insured (patient coinsurance, copays/deductible amounts) and the following federal government plans are exempt from the surcharges and covered lives assessment or regional GME percentage assessment for covered services∗ since specific federal statute governing the benefit plans preempts HCRA:

Uniformed Services Family Health Plan
Amtrack (pursuant to the Rail Passenger Service Act)
Benefit plans covered by the Federal Employees Health Benefits Act (FEHBA), including:
  • Governmental Employees Hospital Association (GEHA)
  • Mail Handlers´ Health Benefits Plan
  • Postmasters Benefit Plan
  • Special Agents Mutual Benefit Association (SAMBA)
  • United States Air Force Group Health Plan
  • NEXCOM (Effective 10/28/04)
  • American Postal Workers Union

The above lists are not meant to serve as a comprehensive listing of federal government programs/plans that is exempt from the surcharges. The Department continues to review any claims for exemption from the surcharge.
Surcharges are applicable for payments made for services NOT covered by the above plans (includes exhaustion of benefits). If the patient has no other insurance, then the non-covered services would be subject to the Self Pay-Uninsured Rate and no regional GME percentage assessment. If the patient has other insurance, and the service is a covered service of that plan, the surcharge rate is based on the election status of the plan, plus if an inpatient claim, a covered lives or regional GME percentage assessment, if applicable.
3 Are patient coinsurance and deductible payments under benefit plans covered by the FEHBA, and the other federal government programs mentioned in the response to the previous question, subject to the surcharge provisions? PHL Section 2807-j(2)(f) provides that the total percentage allowance for patient deductibles and coinsurance amounts shall be the same percentage allowance applicable to payments by the primary payor covering the patient. Therefore, where a patient is making coinsurance and/or deductible payments to a designated provider for services covered under a benefit plan covered by one of the federal government programs mentioned in the response to the previous question, the surcharges do not apply. However, where an individual is making payments to a designated provider of service as a result of an exhaustion of benefits, or lack of benefits for a particular service, the individual shall be subject to the Self-Pay Uninsured Payor surcharge percentage.
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XI. Election Process

Question Number Question Answer
1 Can TPAs use a Power of Attorney to elect to pay directly into the PGP on behalf of the organizations they represent? A TPA may provide a Power of Attorney consent from a represented organization to elect on their behalf to pay directly into the Public Goods Pool as long as the Power of Attorney specifically authorizes the TPA to make the election on behalf of the represented organization. A general Power of Attorney which does not specifically reference the HCRA election would not be legally acceptable.

For example, the Department suggests that the following powers be included in the Power of Attorney consent:

  • Execution and delivery of any and all documents or instruments necessary or appropriate in connection with compliance within the provisions of the HCRA. "The power hereby granted to the attorney-in-fact includes, but is not limited to, the execution and delivery of any and all documents or instruments necessary or appropriate in connection with the election regarding direct payment of surcharges and the covered lives assessment provided for in New York´s Public Health Law (PHL) §2807-j and §2807-t."
  • "By executing this Power of Attorney, the undersigned hereby specifically ratifies any action undertaken by the attorney-in-fact prior to the date hereof in connection with the election provided for in §2807-j and §2807-t of the PHL and hereby expressly consents to such election and the conditions enumerated in §2807-j(5)(a)(iii) and §2807-t(3)(a)."
2 How long after payor or third party administrator election applications are submitted does an organization become effective as an elector with the Public Goods Pool? An election application received from any payor or third party administrator shall begin on the first day of the month following the date the application was received, unless a future date is specified on the form. For instance, an election application with a received date of March 5th will have an effective date of April 1. In order for the application to be processed, form DOH-4399, Payor Election Application, or form DOH-4400, TPA/ASO Election Application, must be accompanied by form DOH-4264, Electronic Filing User ID Application.
3 How does an electing payor notify the Public Goods Pool of a change to their status? Each electing payor is obligated to notify the Public Goods Pool of any changes in their status. The type of status change will dictate which form is required:

  • DOH-4402 (Payor Status Change) is submitted by electing payors that have become fully insured, closed, gone out-of business or have filed for bankruptcy.
  • DOH-4403 (TPA/ASO Status Change) is submitted by electing payors that added or changed their TPA or ASO.
  • DOH-4406 (Merger-Acquisition) is submitted by electing payors who have acquired, been acquired, and/or merged with another payor.
4 How does an electing TPA/ASO notify the Public Goods Pool of any changes to their list of covered organizations? The TPA/ASO would be required to submit one of the following, either electronically via the hcrapools.org website, or hard copy form:

  • DOH-4401 (TPA/ASO Client List Addendum-Additions) for TPAs/ASOs to notify the Public Goods Pool of new clients for which they will responsible to file Public Goods Pool reports on behalf of.
  • DOH-4411 (TPA/ASO Client List Addendum-Deletions) for TPAs/ASOs to notify the Public Goods Pool of electing clients that are no longer clients of theirs.
5 As a new elector with the Public Goods Pool, what data is to be reported on the Public Goods Pool reports? For all electing payors, and in particular newly elected payors, the surcharge portion of the Public Goods Pool reports is a summary of the surchargeable claims you paid that period (for new electors, this will be a monthly report initially). However, this only includes claim payment data with dates of service that occur on or after the effective date of the election. Any claims with dates of service prior to the effective date must be paid directly to the provider, and when billed, will include the surcharge percentage rate applicable to non-electing payors, plus, on an inpatient claim, a regional GME percentage, if applicable.

The second part of the report, Report of Covered Lives Assessment, is a summary of the number of insureds covered by your plan/policy, for which you cover inpatient coverage for, segregated by the regions in NYS where the insured lives, segregated by individual or family coverage provided. The covered lives region is always determined by where the primary insured resides.
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XII. Interplan Telecommunications System (ITS)

Question Number Question Answer
1 How do the HCRA surcharge obligations and election provisions of HCRA apply to a self-funded plan that uses an out-of-state BCBS plan as their TPA? The HCRA filing requirements for many out-of-state BCBS plans are affected by a special agreement between the DOH and Empire BCBS (Empire). In short summary, Empire acts as a conduit for the payment of claims in NYS through the Interplan Telecommunications System (ITS) for out-of-state BCBS plans. As such, Empire is the payor for purposes of HCRA. Therefore, when services are provided by designated providers to beneficiaries of out-of-state BCBS plans, and Empire is the agreed conduit for HCRA, Empire is considered the payor of the claim, and as the payor, is obligated to remit the PGP reports, surcharge payments and covered lives, if applicable, to the Office of Pool Administration.

Consequently, for claims that fall within the ITS, and have Empire act as their conduit to the PGP, Empire's election into the PGP protects these out-of-state plans from paying the higher surcharge. Empire files the PGP reports and submits the surcharge under their election and bills the out-of-state BCBS plans. If Empire is not the agreed conduit for ITS claims and PGP reporting, then the out of state BCBS plan (as an insurer) or the plan itself (as the payor assuming risk for claims) must be an elector in order to receive the advantages of the election. As an elector, they would be obligated to file the obligated PGP reports, and submit surcharge and covered lives assessments, if applicable.

For claims that fall outside of ITS, the payor of the claim (either the out-of-state BCBS plan as an insurer or the self-funded client of the out-of-state BCBS plan) must have their own election on file to be able to pay the lower surcharge rate. Under this scenario, the payor is required to fulfill their HCRA obligations consistent with their election regardless of whether they incur any non-ITS surchargeable claims or not. Failure to meet these obligations could jeopardize their election status.

Similar to the HCRA surcharge, if the self-funded clients of an out-of-state BCBS plan have a covered lives obligation, Empire will remit the required reports and payments under its own election and bill the out-of-state BCBS plan.
2 Does a negotiated rate agreement between a designated provider and a NY- based BCBS plan apply to out-of-state BCBS plans? A negotiated rate agreement between a designated provider and a NY based BCBS plan applies to out-of-state BCBS plans provided: 1) the out-of-state plans are participating in the NY based BCBS plan's ITS (most likely Empire); and 2) the contractual agreement between the designated provider and the NY- based BCBS plan contains provisions which specifically provide that NY negotiated rates apply to such out-of-state BCBS plans.
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XIII. Clinical Laboratories

Question Number Question Answer
1 What situations do the surcharges not apply to revenue received for clinical laboratory services rendered by a designated provider of services? The surcharge obligations established under Public Health Law Section 2807-j are applicable to revenue received for patient services related to a preadmission, inpatient, outpatient, or post-discharge visit, including all items or services as are necessary for such care, except where excluded in §2807-j. Examples of revenues which fall outside this definition include: (revenue received for "referred" lab services (discussed below), revenue received for clinical laboratory tests performed in connection with the screening of employees for drug use, revenue received for clinical laboratory tests and/or physical examinations performed in connection with applications for life insurance, health insurance, disability insurance or employment, revenue received for clinical laboratory tests performed for the purpose of establishing paternity, revenue received for forensic laboratory testing, revenue received from sponsoring agencies for clinical laboratory tests performed in accordance with approved research protocols for the primary purpose of medical research, revenue received for clinical laboratory tests performed in accordance with OHSA requirements. In each of these instances, exemption status is allowed since related diagnostic procedures are not primarily or directly linked to the potential for an admission as an inpatient, or an outpatient for treatment. Additionally, revenue received for veterinary laboratory testing falls outside the definition of net patient services revenue since such procedures are not primarily or directly linked to the potential for human treatment. Please note, effective for dates of service claims October 1, 2000, and forward, "referred" laboratory services are no longer subject to a HCRA surcharge. For general hospitals, referred (ordered) ambulatory care laboratory services are defined as clinical laboratory services provided to non-registered patients upon the order and referral of a qualified physician, physician´s assistant, dentist, or podiatrist to test or diagnose a specimen taken from a patient. For purposes of the specific service being ordered for a specific patient, the physician ordering the service may not be employed by or under contract to provide direct patient care for the hospital, and including any extension clinics operated by the hospital. For diagnostic and treatment centers (D&TC), referred (ordered) ambulatory care laboratory services are defined as clinical laboratory services provided to non-registered patients of the D&TC (i.e., persons who are not registered with the comprehensive diagnostic and treatment center or ambulatory surgery center as patients for purposes of the specific clinical services being ordered) upon the order and referral of a qualified physician, physician´s assistant, dentist, or podiatrist to test or diagnose a specimen taken from a patient. For purposes of the specific service being ordered for a specific patient, the physician ordering the service may not be employed by or under contract to provide direct patient care for the D&TC. It should be noted that "pre-admission" clinical laboratory testing ordered due to impending ambulatory surgery or inpatient or outpatient treatment and performed by the licensed hospital or D&TC providing such treatment, is not considered referred ambulatory laboratory testing because it is a service delivered in direct conjunction with a surchargeable service. Consequently, revenue associated with such laboratory testing is not excludable revenue and is subject to a surcharge.
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