1300 Health Insurance General Provisions

1312 Standards of payment for Assistants at Surgery

1.0 Authority

This regulation is adopted by the Commissioner pursuant to18 Del.C. §§311, 2304(16) and 2312. It is promulgated in accordance with 29 Del.C. Ch. 101.

2.0 Definitions

1. 2.1 For the purpose of this regulation, the following definitions shall apply:

   “Assistant at Surgery” means a physician, nurse practitioner, clinical nurse specialist, or physician assistant who is licensed and actively assists the physician in charge of a case in performing a surgical procedure.

   “Fee schedule” means the monetary allowance payable to a healthcare provider for services rendered as provided for by agreement between the health care provider and the health insurer.

   “Health Care Provider” means any entity or individual licensed, certified or otherwise permitted by law to provide health care in the ordinary course of business, practice or profession.

   “Health insurer” means health insurance companies, health maintenance organizations, health service corporations and any other entity providing a plan of health insurance or benefits subject to state insurance regulations.

   “Policyholder or Certificate Holder” means a person covered under such policy or a representative designated by such person and entitled to services provided in the policy.

3.0 Scope

This regulation shall apply to all health insurers as defined in section 2.0 above, and shall apply to all contracts for insurance and certificates of coverage issued by such entities.

4.0 Purpose

Some surgical procedures require a primary surgeon and an assistant surgeon. Federal law sets forth guidelines for the payment, under Medicare Part B, for the services of assistants at surgery. No such guidelines exist in Delaware law, and in many cases health insurers will not pay for such services. The purpose of this regulation is to require that health insurers make payment for the services of assistants at surgery in the same manner as provided for under Medicare Part B.

5.0 Guidelines for payment for the services of assistants at surgery

1. 5.1 A health insurer shall be required to make payment for the professional services of assistants at surgery. Such payment shall be made in the same manner set as forth in the Balanced Budget Act of 1997 and applicable publications issued by the Health Care Financing Administration (HCFA), including but not limited to HCFA’s regulations, the Medicare Part B Physician/Supplier Handbook, and Medicare Part B newsletters.

2. 5.2 Medicare rules governing the following aspects of claims for services of assistants at surgery shall be observed:

   1. 5.2.1 the percentage of fee schedule (as “fee schedule” is defined herein) for physicians acting as assistants at surgery;
   2. 5.2.2 the percentage of fee schedule (as “fee schedule” is defined herein) for non physicians acting as assistants at surgery; and
   3. 5.2.3 whether the surgical procedure in question is eligible for assistant at surgery services.

6.0 General Business Practice

1. 6.1 Within a 36 month period, three instances of a health insurer’s failure to pay a claim or bill for services promptly, as defined in section 5 above, shall give rise to a rebuttable presumption that the insurer is in violation of18 Del.C. §2304(16)(f).
2. 6.2 The 36 month period established in section 6.1 above shall be measured based upon the date the complaints are received at the Department. Each claim or bill, or portion of a claim or bill, pertaining to a single medical treatment or procedure provided to an individual policyholder that is processed in violation of this regulation shall constitute an “instance” as described in 6.1above.

7.0 Penalties

In addition to the imposition of penalties in accordance with18 Del.C. §2312(b), any health insurer that fails to adhere to the standards contained in this regulation may be required by order of the Commissioner to pay to the health care provider or claimant, in full settlement of the claim or bill for health care services, the amount of the claim or bill plus interest at the maximum rate allowable to lenders under 6 Del.C. §2301(a). Such interest shall be computed from the date the claim or bill for services first became due.

8.0 Causes of Action and Defenses

This regulation shall not create a cause of action for any person or entity, other than the Delaware Insurance Commissioner, against a health insurer or its representative based upon a violation of18 Del.C. §2304(16). In the same manner, nothing in this regulation shall establish a defense for any party to any cause of action based upon a violation of 18 Del.C. §2304(16).

9.0 Effective Date

This regulation shall become effective on January 1, 2000.