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.

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S428-2013 Actions

• Feb 12, 2013: DEFEATED IN SOCIAL SERVICES
• Jan 9, 2013: REFERRED TO SOCIAL SERVICES

S428-2013 Meetings

Social Services: Feb 12, 2013

S428-2013 Votes

S428-2013 Memo

BILL NUMBER:S428

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:
2011/12 - S.1326/A.2957  - Passed Assembly
2009/10 - S.5547/A.1417A- Passed Assembly

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
90 Days.

S428-2013 Text

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

                                     428

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by  Sen.  DILAN  -- read twice and ordered printed, 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.
                                                             LBD00404-01-3