NYS Ins. Dep't: HMO lacks no-fault subrogee rights
The NYS Insurance Department recently issued an opinion letter dated January 28, 2008 indicating that, where an insured does not appeal a no-fault insurer's denial of benefits, an HMO as subrogee cannot proceed against the no-fault insurer under a claim of equitable subrogation. The opinion notes, however, that it was possible that the HMO may have "performed services that would bring it within the definition of a 'health service provider' under Insurance Law section 5102(a)(1)." Nonetheless, the Insurance Department noted that a recent decision (Health Ins. Plan of Greater New York v. Allstate Ins. Co., 2007 N.Y. Slip Op. 33925(U) (N.Y. Sup. Nov. 20, 2007)) held that an HMO was not a "provider of health care services" under 11 NYCRR section 65-3.11 and that an HMO has no right of equitable subrogation against an automobile insurer (but that it might have such a cause of action against the third-party tortfeasor). The Insurance Department concluded by noting that 11 NYCRR section 52.26 provides a no-fault exclusion that permits an HMO to "opt to exclude [no-fault] benefits from coverage" by contract.