Provides factors to be considered when a health care practitioner's opinion differs from that of referral's treating health care practitioner as to a disability; requires such health care practitioner to provide an explicit written determination and to present evidence when such practitioner's diagnosis differs from that of the treating health care practitioner who referred the patient.
TITLE OF BILL: An act to amend the social services law, in relation to establishing factors to be considered when a health care practitioner upon examination has a different opinion from an applicant's treating health care practitioner's opinion as to an applicant's disability; and requiring an explicit written determination by the health care practitioner when the diagnoses differ
PURPOSE: To ensure that the opinions and determinations of a public assistance applicant's treating health care practitioner are given sufficient weight when making disability determinations.
SUMMARY OF PROVISIONS: Section 1 amends section 332-b of the social services law, by which provides that if a public assistance applicant is sent to a practitioner to determine if the applicant has any work limitations, the practitioner must take into account the applicant's treating health care practitioner's opinion, and give it sufficient weight based on a number of factors.
EXISTING LAW: Currently it is within the evaluating practitioner's discretion what, if any, weight is given to the treating health care practitioner's opinion.
JUSTIFICATION: If an individual applying for public assistance has work limitations, disabilities, or health issues which have been identified by their treating health care practitioner, their diagnosis and recommendations should be considered to be accurate, in the absence of any contradictory findings. As the current law is written, there is little weight given to the treating health care practitioner's opinion, and if not supplied in a very timely fashion, is not even considered in making a determination on work limitations.
The social services appointed examining practitioner only sees the applicant for one short assessment, which is not always sufficient in exploring many complicated issues related to work limitations. If the applicant's treating health care practitioner has been following him or her for a long period of time, they most likely have established enough of a relationship with their patient which would allow for the discovery of hidden disabilities that the examiner may never find.
The federal government recognizes the importance of giving sufficient consideration to a physician's medical opinion, and they follow this practice explicitly in their Supplemental Security Income determination procedure, detailed in 20 CFR 416.927. This section of federal regulation outlines Evaluating Opinion Evidence, and it is after this federal regulation that this bill has been modeled after.
It is for this reason that if the examiner makes any findings contrary to the treating health care practitioner's diagnosis, the reasons for the differing diagnosis should have to be defended and explicitly stated in writing.
LEGISLATIVE HISTORY: 2009/10 - S.5547/A.1417A 2007/08 - S.1509/A.7946 2005/06 - S.1745/A.5402 2003/04 - S.624/A.9983
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: 90 Days.
STATE OF NEW YORK ________________________________________________________________________ 1326 2011-2012 Regular Sessions IN SENATE January 6, 2011 ___________Introduced by Sens. DILAN, DIAZ, PARKER -- read twice and ordered print- ed, and when printed to be committed to the Committee on Social Services AN ACT to amend the social services law, in relation to establishing factors to be considered when a health care practitioner upon exam- ination has a different opinion from an applicant's treating health care practitioner's opinion as to an applicant's disability; and requiring an explicit written determination by the health care practi- tioner when the diagnoses differ THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 332-b of the social services law is amended by adding two new subdivisions 4-a and 4-b to read as follows: 4-A. IF THE PRACTITIONER TO WHOM THE INDIVIDUAL IS REFERRED PURSUANT TO SUBDIVISION FOUR OR PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION ISSUES AN OPINION THAT DIFFERS FROM THE APPLICANT'S TREATING HEALTH CARE PRACTITIONER, THE PRACTITIONER MUST PROVIDE AN EXPLICIT WRITTEN DETERMI- NATION AS TO WHY THE PRACTITIONER DISAGREES WITH THE APPLICANT'S TREAT- ING HEALTH CARE PRACTITIONER'S DISABILITY DETERMINATION AND PRESENT EVIDENCE THAT SUPPORTS THE OPINION. 4-B. IN THE EVENT THE PRACTITIONER TO WHOM THE INDIVIDUAL IS REFERRED PURSUANT TO SUBDIVISION FOUR OR PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION ISSUES AN OPINION THAT DIFFERS FROM THE APPLICANT'S TREATING HEALTH CARE PRACTITIONER'S OPINION, THE APPLICANT'S TREATING HEALTH CARE PRACTITIONER'S OPINION IS GENERALLY CONTROLLING, SUBJECT TO, BUT NOT LIMITED TO, THE FOLLOWING FACTORS: (A) THE LENGTH AND FREQUENCY OF THE TREATMENT PROVIDED, (B) CONSISTENCY OF THE OPINION WITH THE RECORD AS A WHOLE, (C) THE DEGREE TO WHICH THE OPINION IS SUPPORTED BY CONCRETE EVIDENCE, AND (D) THE PRACTITIONER'S SPECIALTY. S 2. This act shall take effect on the ninetieth day after it shall have become a law.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04846-01-1