S T A T E O F N E W Y O R K
________________________________________________________________________
5361--A
2011-2012 Regular Sessions
I N A S S E M B L Y
February 16, 2011
___________
Introduced by M. of A. HOYT -- read once and referred to the Committee
on Labor -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
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:
1 Section 1. Subdivision (a) of section 13 of the workers' compensation
2 law, as amended by chapter 6 of the laws of 2007, is amended to read as
3 follows:
4 (a) The employer shall promptly provide for an injured employee such
5 medical, dental, surgical, optometric or other attendance or treatment,
6 nurse and hospital service, medicine, optometric services, crutches,
7 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
8 devices, functional assistive and adaptive devices and apparatus for
9 such period as the nature of the injury or the process of recovery may
10 require. The employer shall be liable for the payment of the expenses of
11 medical, dental, surgical, optometric or other attendance or treatment,
12 nurse and hospital service, medicine, optometric services, crutches,
13 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
14 devices, functional assistive and adaptive devices and apparatus, as
15 well as artificial members of the body or other devices or appliances
16 necessary in the first instance to replace, support or relieve a portion
17 or part of the body resulting from and necessitated by the injury of an
18 employee, for such period as the nature of the injury or the process of
19 recovery may require, and the employer shall also be liable for replace-
20 ments or repairs of such artificial members of the body or such other
21 devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
22 ic devices, functional assistive and adaptive devices or appliances
23 necessitated by ordinary wear or loss or damage to a prosthesis, with or
24 without bodily injury to the employee. Damage to or loss of a prosthetic
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09319-02-1
A. 5361--A 2
1 device shall be deemed an injury except that no disability benefits
2 shall be payable with respect to such injury under section fifteen of
3 this article. Such a replacement or repair of artificial members of the
4 body or such other devices, eye-glasses, false teeth, artificial eyes,
5 orthotics, prosthetic devices, functional assistive and adaptive devices
6 or appliances or the providing of medical treatment and care as defined
7 herein shall not constitute the payment of compensation under section
8 twenty-five-a of this article. All fees and other charges for such
9 treatment and services shall be limited to such charges as prevail in
10 the same community for similar treatment of injured persons of a like
11 standard of living.
12 The chair shall prepare and establish a schedule for the state, or
13 schedules limited to defined localities, of charges and fees for such
14 medical treatment and care, and including all medical, dental, surgical,
15 optometric or other attendance or treatment, nurse and hospital service,
16 medicine, optometric services, crutches, eye-glasses, false teeth, arti-
17 ficial eyes, orthotics, prosthetic devices, functional assistive and
18 adaptive devices and apparatus in accordance with and to be subject to
19 change pursuant to rules promulgated by the chair. Before preparing such
20 schedule for the state or schedules for limited localities the chair
21 shall request the president of the medical society of the state of New
22 York and the president of the New York state osteopathic medical society
23 to submit to him or her a report on the amount of remuneration deemed by
24 such society to be fair and adequate for the types of medical care to be
25 rendered under this chapter, but consideration shall be given to the
26 view of other interested parties. In the case of physical therapy fees
27 schedules the chair shall request the president of a recognized profes-
28 sional association representing physical therapists in the state of New
29 York to submit to him or her a report on the amount of remuneration
30 deemed by such association to be fair and reasonable for the type of
31 physical therapy services rendered under this chapter, but consideration
32 shall be given to the views of other interested parties. The chair
33 shall also prepare and establish a schedule for the state, or schedules
34 limited to defined localities, of charges and fees for outpatient hospi-
35 tal services not covered under the medical fee schedule previously
36 referred to in this subdivision, to be determined in accordance with and
37 to be subject to change pursuant to rules promulgated by the chair.
38 Before preparing such schedule for the state or schedules for limited
39 localities the chair shall request the president of the hospital associ-
40 ation of New York state to submit to him or her a report on the amount
41 of remuneration deemed by such association to be fair and adequate for
42 the types of hospital outpatient care to be rendered under this chapter,
43 but consideration shall be given to the views of other interested
44 parties. In the case of occupational therapy fees schedules the chair
45 shall request the president of a recognized professional association
46 representing occupational therapists in the state of New York to submit
47 to him or her a report on the amount of remuneration deemed by such
48 association to be fair and reasonable for the type of occupational ther-
49 apy services rendered under this chapter, but consideration shall be
50 given to the views of other interested parties. IN THE CASE OF MASSAGE
51 THERAPY FEE SCHEDULES THE CHAIR SHALL REQUEST THE PRESIDENT OF A RECOG-
52 NIZED PROFESSIONAL ASSOCIATION REPRESENTING LICENSED MASSAGE THERAPISTS
53 IN THE STATE OF NEW YORK TO SUBMIT TO HIM OR HER A REPORT ON THE AMOUNT
54 OF REMUNERATION DEEMED BY SUCH ASSOCIATION TO BE FAIR AND REASONABLE FOR
55 THE TYPE OF OCCUPATIONAL THERAPY SERVICES RENDERED UNDER THIS CHAPTER,
56 BUT CONSIDERATION SHALL BE GIVEN TO THE VIEWS OF OTHER INTERESTED
A. 5361--A 3
1 PARTIES. The amounts payable by the employer for such treatment and
2 services shall be the fees and charges established by such schedule.
3 Nothing in this schedule, however, shall prevent voluntary payment of
4 amounts higher or lower than the fees and charges fixed therein, but no
5 physician rendering medical treatment or care, and no physical, LICENSED
6 MASSAGE or occupational therapist rendering their respective physical,
7 MASSAGE or occupational therapy services may receive payment in any
8 higher amount unless such increased amount has been authorized by the
9 employer, or by decision as provided in section thirteen-g of this arti-
10 cle. Nothing in this section shall be construed as preventing the
11 employment of a duly authorized physician on a salary basis by an
12 authorized compensation medical bureau or laboratory.
13 S 2. Subdivisions 1 and 2 of section 13-g of the workers' compensation
14 law, subdivision 1 as amended by chapter 674 of the laws of 1994 and
15 subdivision 2 as amended by chapter 649 of the laws of 1985, are amended
16 to read as follows:
17 (1) Within forty-five days after a bill has been rendered to the
18 employer by the hospital, physician or self-employed physical, LICENSED
19 MASSAGE or occupational therapist who has rendered treatment pursuant to
20 a referral from the injured employee's authorized physician or author-
21 ized podiatrist for treatment to the injured employee, such employer
22 must pay the bill or notify the hospital, physician or self-employed
23 physical, LICENSED MASSAGE or occupational therapist in writing that the
24 bill is not being paid and explain the reasons for non-payment. In the
25 event that the employer fails to make payment or notify the hospital,
26 physician or self-employed physical, LICENSED MASSAGE or occupational
27 therapist within such forty-five day period that payment is not being
28 made, the hospital, physician, self-employed physical therapist OR
29 SELF-EMPLOYED LICENSED MASSAGE THERAPIST or self-employed occupational
30 therapist may notify the chair in writing that the bill has not been
31 paid and request that the board make an award for payment of such bill.
32 The board or the chair may make an award not in excess of the estab-
33 lished fee schedules for any such bill or part thereof which remains
34 unpaid after said forty-five day period or thirty days after all other
35 questions duly and timely raised in accordance with the provisions of
36 this chapter, relating to the employer's liability for the payment of
37 such amount, shall have been finally determined adversely to the employ-
38 er, whichever is later, in accordance with rules promulgated by the
39 chair, and such award may be collected in like manner as an award of
40 compensation. The chair shall assess the sum of fifty dollars against
41 the employer for each such award made by the board, which sum shall be
42 paid into the state treasury.
43 In the event that the employer has provided an explanation in writing
44 why the bill has not been paid, in part or in full, within the aforesaid
45 time period, and the parties can not agree as to the value of medical
46 aid rendered under this chapter, such value shall be decided by arbi-
47 tration if requested by the hospital, physician or self-employed phys-
48 ical, LICENSED MASSAGE or occupational therapist, in accordance with the
49 provisions of subdivision two or subdivision three of this section, as
50 appropriate, and rules and regulations promulgated by the chair.
51 Where a physician, physical, LICENSED MASSAGE or occupational thera-
52 pist bill has been determined to be due and owing in accordance with the
53 provisions of this section the board shall include in the amount of the
54 award interest of not more than one and one-half per cent (1 1/2%) per
55 month payable to the physician, physical, LICENSED MASSAGE or occupa-
56 tional therapist, in accordance with the rules and regulations promul-
A. 5361--A 4
1 gated by the board. Interest shall be calculated from the forty-fifth
2 day after the bill was rendered or from the thirtieth day after all
3 other questions duly and timely raised in accordance with the provisions
4 of this chapter, relating to the employer's liability for the payment of
5 such amount, shall have been finally determined adversely to the employ-
6 er, whichever is later, in accordance with rules promulgated by the
7 chair.
8 (2) If the parties fail to agree as to the value of medical aid
9 rendered under this chapter, such value shall be decided by an arbi-
10 tration committee consisting of one physician designated by the presi-
11 dent of the medical society of the county in which the medical services
12 were rendered, one physician who is a member of the medical society of
13 the state of New York, appointed by the employer or carrier, and one
14 physician, also a member of the medical society of the state of New
15 York, appointed by the [chairman] CHAIR of the workers' compensation
16 board. The majority decision of any such committee shall be conclusive
17 upon the parties as to the value of the services rendered. If the physi-
18 cian whose charges are being arbitrated is a member in good standing of
19 the New York osteopathic society or the New York homeopathic society,
20 the members of such arbitration committee shall be physicians of such
21 organization, one to be appointed by the president of that organization,
22 one by the employer or carrier and the third by the [chairman] CHAIR of
23 the workers' compensation board. Where the value of physical therapy
24 services is at issue the arbitration committee shall consist of a member
25 in good standing of a recognized professional association representing
26 physical therapists in the state of New York appointed by the president
27 of such organization, a physician designated by the employer or carrier
28 and a physician designated by the [chairman] CHAIR of the workers'
29 compensation board provided however, that the [chairman] CHAIR finds
30 that there are a sufficient number of physical therapy arbitrations in a
31 geographical area comprised of one or more counties to warrant a commit-
32 tee so comprised. In all other cases where the value of physical therapy
33 services is at issue, the arbitration committee shall be similarly
34 selected and identical in composition, provided that the physical thera-
35 pist member shall serve without remuneration, and provided further that
36 in the event a physical therapist is not available, the committee shall
37 be comprised of three physicians designated in the same manner as in
38 cases where the value of medical aid is at issue.
39 Where the value of occupational therapy services is at issue the arbi-
40 tration committee shall consist of a member in good standing of a recog-
41 nized professional association representing occupational therapists in
42 the state of New York appointed by the president of such organization; a
43 physician designated by the employer or carrier and a physician desig-
44 nated by the [chairman] CHAIR of the workers' compensation board
45 provided, however, that the [chairman] CHAIR finds that there are a
46 sufficient number of occupational therapy arbitrations in a geographical
47 area comprised of one or more counties to warrant a committee so
48 comprised. In all other cases where the value of occupational therapy
49 services is at issue, the arbitration committee shall be similarly
50 selected and identical in composition, provided that the occupational
51 therapist member shall serve without remuneration, and provided further
52 that in the event an occupational therapist is not available, the
53 committee shall be comprised of three physicians designated in the same
54 manner as in cases where the value of medical aid is at issue.
55 S 3. This act shall take effect immediately.