August 1, 2022
A special meeting of the Board of Trustees of the Village of Lakewood, N.Y., was held, Monday, August 1, 2022, 8:30 AM, with Mayor Randall G. Holcomb presiding. Trustees present were Ellen E. Barnes, R. Richard Fischer, Nancy W. Jones and Benjamin J. Troche. Also present were Village Treasurer Apryl Troutman and Fire Chief Kurt Hallberg. Village Attorney John LaMancuso and Attorney Mark Butler attended via Zoom.us. Absent were Village Clerk Mary B. Currie, Police Chief Christopher DePonceau, DPW Supervisor Thomas Pilling and Building Inspector Jeff Swanson.
DISCUSSION ON BILLING FOR EMERGENCY MEDICAL SERVICES (EMS)
Mr. Mark Butler, Esq., Snyder, NY and Special Counsel for the Village of Lakewood, clarified some of the EMS billing changes that have happened since the new law went into effect on July 8, 2022. Mr. Butler said the state legislature made a law to allow volunteer fire companies to do ambulance billing where previously it was prohibited in New York State and only transporting agencies could bill for services. He said if a village chooses not to bill that is ok, however, the village will be billed for the shared services and Advanced Life Support (ALS) services. The ALS agency is permitted under this new law to bill the Village and not the patient or their insurance company.
Mr. Butler said there are two options. One is that the Village can enter into an agreement with the ALS agencies for a set fee. They are usually set between the high three hundreds and the low four hundreds. If you don’t enter into an agreement for that flat fee then the ALS service can bill the Village with its usual and customary fees and can be more than $2,000.00. He said that is what is pushing a lot of agencies to become a billing agency and the fee cannot be passed onto the patients’ insurance company. What happens practically, is if the village ambulance responds to a call that renders Basic Life Support (BLS) services and there is an ALS assist, the village can send one bill to the patient’s insurance carrier and that bill is for both the BLS and ALS services. The practical work that comes from this is that the service provides a pre hospital care report (PCR) to the insurance agency and the outside ALS care also submits the same report. Under the new law, no uninsured person can be issued a bill.
Trustee Barnes asked Mr. Butler when he anticipates the board to vote on authorizing fees and charges.
Mr. Butler said both resolutions need to be done as soon as possible. There are a couple of contingencies that need to be addressed. One of them is recommending a proposal date for the billing services and the other is the waiver of copays. We put in there to waive the first hundred dollars of the copay. When the bill is issued the insurance company will pay the allotted amount for the services rendered. The PCR generates the medical coding and billing. Most patients would have a copay and some of those can be really high. Regulatory law from the comptroller is that you cannot collect taxes for emergency services and fees for the same service. Municipalities have waived the copay or a portion of the copay due to the taxes that the resident pays.
Mr. Butler said the question to the board is, will it waive some or all of the copay to your village residents, which would need to be a part of the resolution and the board’s decision. The only bill that will be sent out will go to the insurance companies. He said if you waive only a portion of the copay then the remainder will be billed directly to the resident.
Lakewood Volunteer Fireman, Tom Hurley, mentioned that Medicare can bill 80% and then Medicaid would pay the remaining 20% copay and asked if that would still be the case.
Mr. Butler said that is a billing question and it would have to be asked to the agency that is hired to do the billing for the Village.
Mr. Hurley asked Mr. Butler if he knows how many other fire companies are going to be doing their own billing.
Mr. Butler said he would guess somewhere between 7-10 agencies are actively pursuing this and those are just the companies that he is directly working with.
Mr. Butler said another change to the new law is a statutory limitation in which you cannot bill an uninsured patient. He said the Fire Department or an authority within its jurisdiction, will then become responsible for the ALS services. For example, the swing between being charged for ALS and charging for that recovery, for the smallest of agencies in our county which have a small number of transports, is usually in the $10,000-$15,000 range per year. For the bigger companies this number is going to be much higher, should they choose not to go with ambulance billing. He said that is why we are seeing so many agencies move towards the billing system. This statute is being built into the contracts between the municipality and its billing service so that it is black and white. The Village would only bill insurance companies, Medicare and Medicaid, which will alleviates having to send someone to collections.
Trustee Troche said Lakewood is like most of the Volunteer Fire Departments in New York State in having a dire need for volunteers. He said it is the front line of what the company thinks about and asked if the revenue from the billing services can be invested in pension plans for volunteers.
Mr. Butler said that the only program in place is Length of Service Award Programs (LOSAP) its only funding is from property taxes and ad valorem. The revenue from the billing services cannot go into the general fund, it has to be used for ambulance and emergency services. Mr. Butler’s recommendation regarding all revenue that does come in should be segregated and not co-mingled with other village funds. He said that way you can track deposits and have a budgetary base for such things as ambulance or equipment replacement. He said there is a provision that allows for a contract, in the resolutions, that allows revenue sharing between the village and the Fire Company, which will allow receiving a portion of those funds. Mr. Butler said there is a predicate in the general municipal law that surrounds fire protection, the formula is subject to the discussion and agreement between the Fire Company and the village. The Fire Company has no guidance or restrictions on how that money is spent.
Trustee Barnes asked if the Fire Company could set up their own retirement system with the funds.
Mr. Butler said no because they are not an employer.
Trustee Troche asked if the Fire Company could use the funds to purchase a fire truck since there are EMS firefighters and it is 95% of what they do.
Mr. Butler said prior to July 8, 2022, the Comptroller has not changed the wording and that these funds can be used for “Ambulances and Emergency Services”. These funds cannot be put into the general fund for general village purposes but if they are segregated to be used for ambulances and emergency services then you have the answer to your question.
Chief Hallberg asked Mr. Butler if there is anything he and or the Fire Department could do to help be supportive and if he has run into any mistakes that have been made by a Fire Chief or Fire Department that they can avoid.
Mr. Butler said the biggest problem for the personnel is going to be “the change”. He said there is training available in terms of the personnel filling out the (PCR), which will now serve another purpose with the billing. The Billing Company will generate periodic reports regarding the money that was received, how many PCR’s weren’t filled out correctly and the amount of claims received. The chief or the captain will want to pay attention to these reports. Items on these reports that require additional information will certainly need to be addressed.
Trustee Troche said Mr. Chuck Jordan, CEO of Professional Ambulance Billing LLC, (PAB) Williamsville, N.Y., told them that it is up to the first responder to gain the patients’ health insurance information and asked if this is something that first responders normally do.
Mr. Butler said that is normal, you can get the information from the patient, a family member, at the hospital or can be done in a post call query. He said he has seen agencies have a dedicated cell phone on the ambulance and use it to communicate with the hospital. He said there is even an app you can get to take a picture of the insurance card. Using a phone becomes second nature after your first few calls. Although billing causes a few extra steps it is beneficial to the Fire Company because the village is sharing the revenue with them.
Mr. Edward McCague, 12 Park Lane, asked why charge a specific dollar amount to the patient instead of a percentage of the copay.
Mr. Butler said its part of the Anti-Kickback Statute 29USC1304. He said he is not familiar with this statute and worries about not setting a hard set dollar amount.
Mr. McCague said if it were a percentage it would equalize these copays for village residents.
Mr. Butler said village residents are paying ad valorem taxes, not everyone’s taxes are the same. Having a set copay alleviates some threshold issues, for example, one village resident could go to the hospital three times per year and another resident could only go once. If the board decided not to seek a copay there are a couple equitable issues that could arise. There isn’t any historical data yet to know if there are copay abusers.
Trustee Troche said the Fire Companies’ hope and intention is to waive copays for village residents, would the village only bill copays to patients outside of the village.
Mayor Holcomb asked if this could cause debate with shared service patients because they have to pay the copay and a village resident does not.
Mr. Butler said the comptroller, in a sense, sees charging a village resident as double dipping because the resident pays taxes. If you are charging a copay for a patient that is not a resident and does not pay taxes, there shouldn’t be any debate.
Trustee Troche said they are contracted with the Town of Busti to cover areas of Busti, so we wouldn’t want to charge those patients either.
Mr. Butler said it could be done but it would involve some legal language and a particular resolution. He said he would also need to read the contract to make sure the wording is correct.
Trustee Barnes asked Mr. Butler about a time line for starting the billing process and the possibility of back billing.
Mr. Butler said he has seen documents with dates on them and they can back bill. There is some apprehension from the county legislature regarding the whole process and said he cannot predict a timeline.
Trustee Barnes said a representative from Med Ex Billing will be at the next Village Board meeting and should they decide to enter into a contract with them, what would the time line be for getting started.
Mr. Butler said when the village makes a decision of which ambulance service carrier you will go with, you will want them to do all the necessary filing on your behalf as part of their per PCR charge. That process can normally take anywhere from 3-8 weeks. He said he tells people to figure about two months from the time you approve the company to the time you can start billing. Mr. Butler said he believes you have to wait until you have authority from Medicare and Medicaid to do any back billing. Mr. Butler also said he would expect the billing service to come in and do trainings several times during that eight weeks, that way you can start billing right away.
Mr. Butler recommended making a decision on whether to bill or not as soon as possible since it is a legal requirement that you do it. He said that would be the first resolution with the new law.
Mr. Butler said this new billing statute has a sunset ability in it and you don’t want to lose that. The second resolutions would be to select a company. You also have to address whether you are going to waive copays or do a partial copay. Then you will be ready to go and the mechanics of making the process happen will go rather quickly. He said until the village starts billing, you are responsible for the ALS service fee to the county, to All-star and anyone else.
Trustee Troche asked if any contracts will need to be revised with the Town of Busti or the Lakewood Fire Company.
Mr. Butler said they shouldn’t have to be but he or Village Attorney LaMancuso should review the contracts.
Trustee Troche asked Mr. Butler if he has a contract they could use providing ALS services to other municipalities.
Mr. Butler said as of July 8, 2022 the law says you cannot bill for mutual aide, you can only bill within your Certificate of Need (CON) operating area. The counties operating certificate says they can operate county wide, your operating certificate says you can only operate for the Village of Lakewood and the Town of Busti.
Mr. Tom Hurley asked if a stipend would be an option with the revenue.
Mr. Butler said you cannot volunteer to do a job and then get paid for it.
Trustee Troche asked if they entered into a contract with the Lakewood Fire Company could the contract say the proceeds need to be used for recruitment and retention purposes.
Mr. Butler said yes but the Fire Company would have to agree to that.
Trustee Troche asked if the resolution concerning a percentage going to the Fire Company could be put on hold until the representatives from the Fire Company are able to look at it.
Mr. Butler said yes.
Trustee Barnes asked Mr. Butler if he knows what other municipalities are offering their fire companies and said the village wants to make sure those amounts are fair and equitable.
Mr. Butler said they are all different and suggested a meeting with a couple of Trustees and a couple of Fire Company members would be a good way to figure those numbers out.
Trustee Barnes asked when the village’s ALS reimbursement fees should be set up.
Mr. Butler said on the last page of the documents there is a schedule and an example of what the rates could be. He said the numbers suggested are just place holders, the Board of Trustees will set the rates. He also said the Billing Company you decide to go with will tell you what the going rates are at the time of hire.
Motion by Trustee Fischer, seconded by Trustee Jones to adjourn the Special Meeting at 9:43 AM.
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Julie C. Toennis, Deputy Clerk
