Authorizes certain care and treatment to injured employees receiving workers' compensation benefits; relates to massage therapy services.

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S6380-2011 Actions

• Feb 2, 2012: REFERRED TO LABOR

S6380-2011 Memo

BILL NUMBER:S6380

TITLE OF BILL:
An act
to amend the workers' compensation law, in relation to authorizing
certain care and treatment to injured employees

PURPOSE OR GENERAL IDEA OF BILL:
Provides that the Chair of the worker's compensation board can set a
fee schedule for massage therapy services for injured employees.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 Amends section 13 of the worker's compensation law to allow
the chair of the workers' compensation board to set the fee schedule
for massage therapy services provided to injured employees upon
referral by the injured employee's physician.

JUSTIFICATION:
Although massage therapists are licensed to provide care to patients
in New York State under the provisions of Article 155 of the
Education Law, injured employees can only be reimbursed for massage
therapy services on an ad-hoc basis with some workers' compensation
carriers allowing it and others denying it.

This bill would establish a fee schedule for massage therapy in the
same manner as physical and occupational therapy and allow an injured
employee to receive reimbursement for massage therapy services.
Massage is now used in intensive care units, for children, elderly
people, babies in incubators, and patients with cancer, AIDS, heart
attacks, or strokes. Most American hospices have some kind of
body-work therapy available, and it is frequently offered in health
centers, drug treatment clinics, and pain Clinics.

An October 2003 study by the American Hospital Association (AHA), with
support from the American Massage Therapy Association shows that many
hospitals are incorporating massage therapists into their pain
management programs.

Of the 1,007 hospitals responding to the AHA survey, massage therapy
was the most prevalent CAM (complementary and alternative medicine)
offering, with 82 percent of the hospitals reporting CAM use saying
they include massage therapy. Of the hospitals with massage therapy
programs, more than 70 percent utilize massage therapy for pain
management and pain relief.

The AHA survey and the growing use of massage therapy as revealed in
annual consumer surveys suggests that hospitals and health care
organizations are positively responding to the consensus of research
and evidence highlighting the benefits of massage. Recent clinical
research on the efficacy of massage for pain management has
demonstrated that:

1. Massage therapy is more effective for chronic back pain than other
complementary therapies.

2. Massage therapy promotes relaxation and alleviates the perception of
pain and anxiety in cancer patients.

3. Massage therapy reduces post-traumatic headaches better than cold
pack treatments.

4. A pilot study conducted at Cedars-Sinai Medical Center in Los
Angeles found that massage, as part of hospital-based surgery
treatment, reduces pain and muscle spasms in patients who have
undergone heart bypass surgery.

5. Massage stimulates the brain to produce endorphins.

The National Institutes of Health (NM) has identified the management
and treatment of pain as a significant national health issue.
According to NTH, pain is the most common reason people seek medical
care and that more than one-third of all Americans will suffer from
chronic pain at some point in their lives. Chronic pain accounts for
more than $100 billion in annual losses to American businesses
(through health care expenses and lost productivity) and
approximately 14 percent of all employees take time off from work due
to pain each year.

PRIOR LEGISLATIVE HISTORY:
03/18/10 - Referred to Labor

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

S6380-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    6380

                              I N  SENATE

                              February 2, 2012
                                 ___________

  Introduced  by  Sen. MAZIARZ -- read twice and ordered printed, and when
    printed to be committed to the Committee on Labor

  AN ACT to amend the workers' compensation law, in relation to  authoriz-
    ing certain care and treatment to injured employees

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Subdivision (a) of section 13 of the workers'  compensation
  law,  as amended by chapter 6 of the laws of 2007, is amended to read as
  follows:

    (a) The employer shall promptly provide for an injured  employee  such
  medical,  dental, surgical, optometric or other attendance or treatment,
  nurse and hospital service,  medicine,  optometric  services,  crutches,
  eye-glasses,   false   teeth,  artificial  eyes,  orthotics,  prosthetic
  devices, functional assistive and adaptive  devices  and  apparatus  for
  such  period  as the nature of the injury or the process of recovery may
  require. The employer shall be liable for the payment of the expenses of
  medical, dental, surgical, optometric or other attendance or  treatment,
  nurse  and  hospital  service,  medicine, optometric services, crutches,
  eye-glasses,  false  teeth,  artificial  eyes,   orthotics,   prosthetic
  devices,  functional  assistive  and  adaptive devices and apparatus, as
  well as artificial members of the body or other  devices  or  appliances
  necessary in the first instance to replace, support or relieve a portion
  or  part of the body resulting from and necessitated by the injury of an
  employee, for such period as the nature of the injury or the process  of
  recovery may require, and the employer shall also be liable for replace-
  ments  or  repairs  of such artificial members of the body or such other
  devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
  ic devices, functional assistive  and  adaptive  devices  or  appliances
  necessitated by ordinary wear or loss or damage to a prosthesis, with or
  without bodily injury to the employee. Damage to or loss of a prosthetic
  device  shall  be  deemed  an  injury except that no disability benefits
  shall be payable with respect to such injury under  section  fifteen  of
  this  article. Such a replacement or repair of artificial members of the
  body or such other devices, eye-glasses, false teeth,  artificial  eyes,

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD09319-04-2

 S. 6380                             2

  orthotics, prosthetic devices, functional assistive and adaptive devices
  or  appliances or the providing of medical treatment and care as defined
  herein shall not constitute the payment of  compensation  under  section
  twenty-five-a  of  this  article.  All  fees  and other charges for such
  treatment and services shall be limited to such charges  as  prevail  in
  the  same  community  for similar treatment of injured persons of a like
  standard of living.
    The chair shall prepare and establish a schedule  for  the  state,  or
  schedules  limited  to  defined localities, of charges and fees for such
  medical treatment and care, and including all medical, dental, surgical,
  optometric or other attendance or treatment, nurse and hospital service,
  medicine, optometric services, crutches, eye-glasses, false teeth, arti-
  ficial eyes, orthotics, prosthetic  devices,  functional  assistive  and
  adaptive  devices  and apparatus in accordance with and to be subject to
  change pursuant to rules promulgated by the chair. Before preparing such
  schedule for the state or schedules for  limited  localities  the  chair
  shall  request  the president of the medical society of the state of New
  York and the president of the New York state osteopathic medical society
  to submit to him or her a report on the amount of remuneration deemed by
  such society to be fair and adequate for the types of medical care to be
  rendered under this chapter, but consideration shall  be  given  to  the
  view  of  other interested parties. In the case of physical therapy fees
  schedules the chair shall request the president of a recognized  profes-
  sional  association representing physical therapists in the state of New
  York to submit to him or her a report  on  the  amount  of  remuneration
  deemed  by  such  association  to be fair and reasonable for the type of
  physical therapy services rendered under this chapter, but consideration
  shall be given to the views of other  interested  parties.    The  chair
  shall  also prepare and establish a schedule for the state, or schedules
  limited to defined localities, of charges and fees for outpatient hospi-
  tal services not covered  under  the  medical  fee  schedule  previously
  referred to in this subdivision, to be determined in accordance with and
  to  be  subject  to  change  pursuant to rules promulgated by the chair.
  Before preparing such schedule for the state or  schedules  for  limited
  localities the chair shall request the president of the hospital associ-
  ation  of  New York state to submit to him or her a report on the amount
  of remuneration deemed by such association to be fair and  adequate  for
  the types of hospital outpatient care to be rendered under this chapter,
  but  consideration  shall  be  given  to  the  views of other interested
  parties. In the case of occupational therapy fees  schedules  the  chair
  shall  request  the  president  of a recognized professional association
  representing occupational therapists in the state of New York to  submit
  to  him  or  her  a  report on the amount of remuneration deemed by such
  association to be fair and reasonable for the type of occupational ther-
  apy services rendered under this chapter,  but  consideration  shall  be
  given  to  the views of other interested parties. IN THE CASE OF MASSAGE
  THERAPY FEE SCHEDULES THE CHAIR SHALL REQUEST THE PRESIDENT OF A  RECOG-
  NIZED  PROFESSIONAL ASSOCIATION REPRESENTING LICENSED MASSAGE THERAPISTS
  IN THE STATE OF NEW YORK TO SUBMIT TO HIM OR HER A REPORT ON THE  AMOUNT
  OF REMUNERATION DEEMED BY SUCH ASSOCIATION TO BE FAIR AND REASONABLE FOR
  THE  TYPE  OF OCCUPATIONAL THERAPY SERVICES RENDERED UNDER THIS CHAPTER,
  BUT CONSIDERATION SHALL BE  GIVEN  TO  THE  VIEWS  OF  OTHER  INTERESTED
  PARTIES.  The  amounts  payable  by  the employer for such treatment and
  services shall be the fees and charges  established  by  such  schedule.
  Nothing  in  this  schedule, however, shall prevent voluntary payment of
  amounts higher or lower than the fees and charges fixed therein, but  no

 S. 6380                             3

  physician rendering medical treatment or care, and no physical, LICENSED
  MASSAGE  or  occupational therapist rendering their respective physical,
  MASSAGE or occupational therapy services  may  receive  payment  in  any
  higher  amount  unless  such increased amount has been authorized by the
  employer, or by decision as provided in section thirteen-g of this arti-
  cle. Nothing in this  section  shall  be  construed  as  preventing  the
  employment  of  a  duly  authorized  physician  on  a salary basis by an
  authorized compensation medical bureau or laboratory.
    S 2. Subdivisions 1 and 2 of section 13-g of the workers' compensation
  law, subdivision 1 as amended by chapter 674 of the  laws  of  1994  and
  subdivision 2 as amended by chapter 649 of the laws of 1985, are amended
  to read as follows:

    (1)  Within  forty-five  days  after  a  bill has been rendered to the
  employer by the hospital, physician or self-employed physical,  LICENSED
  MASSAGE or occupational therapist who has rendered treatment pursuant to
  a  referral  from the injured employee's authorized physician or author-
  ized podiatrist for treatment to the  injured  employee,  such  employer
  must  pay  the  bill  or notify the hospital, physician or self-employed
  physical, LICENSED MASSAGE or occupational therapist in writing that the
  bill is not being paid and explain the reasons for non-payment.  In  the
  event  that  the  employer fails to make payment or notify the hospital,
  physician or self-employed physical, LICENSED  MASSAGE  or  occupational
  therapist  within  such  forty-five day period that payment is not being
  made, the  hospital,  physician,  self-employed  physical  therapist  OR
  SELF-EMPLOYED  LICENSED  MASSAGE THERAPIST or self-employed occupational
  therapist may notify the chair in writing that the  bill  has  not  been
  paid  and request that the board make an award for payment of such bill.
  The board or the chair may make an award not in  excess  of  the  estab-
  lished  fee  schedules  for  any such bill or part thereof which remains
  unpaid after said forty-five day period or thirty days after  all  other
  questions  duly  and  timely raised in accordance with the provisions of
  this chapter, relating to the employer's liability for  the  payment  of
  such amount, shall have been finally determined adversely to the employ-
  er,  whichever  is  later,  in  accordance with rules promulgated by the
  chair, and such award may be collected in like manner  as  an  award  of
  compensation.  The  chair  shall assess the sum of fifty dollars against
  the employer for each such award made by the board, which sum  shall  be
  paid into the state treasury.
    In  the event that the employer has provided an explanation in writing
  why the bill has not been paid, in part or in full, within the aforesaid
  time period, and the parties can not agree as to the  value  of  medical
  aid  rendered  under  this chapter, such value shall be decided by arbi-
  tration if requested by the hospital, physician or  self-employed  phys-
  ical, LICENSED MASSAGE or occupational therapist, in accordance with the
  provisions  of  subdivision two or subdivision three of this section, as
  appropriate, and rules and regulations promulgated by the chair.
    Where a physician, physical, LICENSED MASSAGE or  occupational  thera-
  pist bill has been determined to be due and owing in accordance with the
  provisions  of this section the board shall include in the amount of the
  award interest of not more than one and one-half per cent (1  1/2%)  per
  month  payable  to  the physician, physical, LICENSED MASSAGE or occupa-
  tional therapist, in accordance with the rules and  regulations  promul-
  gated  by  the  board. Interest shall be calculated from the forty-fifth
  day after the bill was rendered or from  the  thirtieth  day  after  all
  other questions duly and timely raised in accordance with the provisions
  of this chapter, relating to the employer's liability for the payment of

 S. 6380                             4

  such amount, shall have been finally determined adversely to the employ-
  er,  whichever  is  later,  in  accordance with rules promulgated by the
  chair.
    (2)  If  the  parties  fail  to  agree  as to the value of medical aid
  rendered under this chapter, such value shall be  decided  by  an  arbi-
  tration  committee  consisting of one physician designated by the presi-
  dent of the medical society of the county in which the medical  services
  were  rendered,  one physician who is a member of the medical society of
  the state of New York, appointed by the employer  or  carrier,  and  one
  physician,  also  a  member  of  the medical society of the state of New
  York, appointed by the [chairman] CHAIR  of  the  workers'  compensation
  board.  The  majority decision of any such committee shall be conclusive
  upon the parties as to the value of the services rendered. If the physi-
  cian whose charges are being arbitrated is a member in good standing  of
  the  New  York  osteopathic society or the New York homeopathic society,
  the members of such arbitration committee shall be  physicians  of  such
  organization, one to be appointed by the president of that organization,
  one  by the employer or carrier and the third by the [chairman] CHAIR of
  the workers' compensation board. Where the  value  of  physical  therapy
  services is at issue the arbitration committee shall consist of a member
  in  good  standing of a recognized professional association representing
  physical therapists in the state of New York appointed by the  president
  of  such organization, a physician designated by the employer or carrier
  and a physician designated by  the  [chairman]  CHAIR  of  the  workers'
  compensation  board  provided  however,  that the [chairman] CHAIR finds
  that there are a sufficient number of physical therapy arbitrations in a
  geographical area comprised of one or more counties to warrant a commit-
  tee so comprised. In all other cases where the value of physical therapy
  services is at issue,  the  arbitration  committee  shall  be  similarly
  selected and identical in composition, provided that the physical thera-
  pist  member shall serve without remuneration, and provided further that
  in the event a physical therapist is not available, the committee  shall
  be  comprised  of  three  physicians designated in the same manner as in
  cases where the value of medical aid is at issue.
    Where the value of occupational therapy services is at issue the arbi-
  tration committee shall consist of a member in good standing of a recog-
  nized professional association representing occupational  therapists  in
  the state of New York appointed by the president of such organization; a
  physician  designated  by the employer or carrier and a physician desig-
  nated by  the  [chairman]  CHAIR  of  the  workers'  compensation  board
  provided,  however,  that  the  [chairman]  CHAIR finds that there are a
  sufficient number of occupational therapy arbitrations in a geographical
  area comprised of one  or  more  counties  to  warrant  a  committee  so
  comprised.  In  all  other cases where the value of occupational therapy
  services is at issue,  the  arbitration  committee  shall  be  similarly
  selected  and  identical  in composition, provided that the occupational
  therapist member shall serve without remuneration, and provided  further
  that  in  the  event  an  occupational  therapist  is not available, the
  committee shall be comprised of three physicians designated in the  same
  manner as in cases where the value of medical aid is at issue.
    S 3. This act shall take effect immediately.