S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    242
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced by M. of A. CAHILL, COLTON, SIMOTAS -- read once and referred
   to the Committee on Labor
 
 AN ACT to amend the workers' compensation law, in relation to payment of
   bills for pharmaceutical services
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 13-g of the workers' compensation law, as added  by
 chapter 258 of the laws of 1935, subdivision 1 as amended by chapter 674
 of  the  laws  of  1994, subdivisions 2 and 3 as amended by section 4 of
 part GG of chapter 57 of the laws of 2013, subdivision 4 as  amended  by
 section  3 of part D of chapter 55 of the laws of 2015, subdivision 5 as
 amended by chapter 578 of the laws of 1959, and subdivision 6 as amended
 by chapter 639 of the laws of 1996, is amended to read as follows:
   § 13-g. Payment of bills for medical care. (1) Within forty-five  days
 after  a  bill has been rendered to the employer by the hospital, physi-
 cian, PHARMACIST, or self-employed physical  or  occupational  therapist
 who  has rendered treatment OR DISPENSED MEDICATION pursuant to a refer-
 ral OR PRESCRIPTION from the injured employee's authorized physician  or
 authorized  podiatrist  for  treatment  to  the  injured  employee, such
 employer must pay the bill or notify the  hospital,  physician,  PHARMA-
 CIST,  or  self-employed  physical  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,  PHARMACIST,  or self-employed physical or occupa-
 tional therapist within such forty-five day period that payment  is  not
 being  made, the hospital, physician, PHARMACIST, self-employed physical
 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 established fee schedules for any such
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD00028-01-9

 A. 242                              2
 
 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 employer,  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] CANNOT agree as to the  value  of
 medical  aid rendered under this chapter, such value shall be decided by
 arbitration if requested by  the  hospital,  physician,  PHARMACIST,  or
 self-employed physical 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, PHARMACIST, OR physical or  occupational  therapist
 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, PHARMACIST, OR physical or  occupational
 therapist,  in  accordance with the rules and regulations promulgated 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 ques-
 tions 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  employer,
 whichever is later, in accordance with rules promulgated by the chair.
   (2)  (a)  If  the  parties  fail  to agree to the value of medical aid
 rendered under this chapter and the amount of the disputed bill  is  one
 thousand  dollars or less, or if the amount of the disputed medical bill
 exceeds one thousand dollars and the health care provider  expressly  so
 requests,  such  value  shall be decided by a single arbitrator process,
 pursuant to rules promulgated by the chair. The chair  shall  appoint  a
 physician who is a member in good standing of the medical society of the
 state  of New York to determine the value of such disputed medical bill.
 Where the physician whose charges are being arbitrated is  a  member  in
 good  standing  of  the  New York osteopathic society, the value of such
 disputed bill shall be determined by a member in good  standing  of  the
 New York osteopathic society appointed by the chair. Where the physician
 whose  charges  are being arbitrated is a member in good standing of the
 New York homeopathic society, the value of such disputed bill  shall  be
 determined  by  a  member  in  good standing of the New York homeopathic
 society appointed by the chair. Where  the  value  of  physical  therapy
 services  or occupational therapy services is at issue, such value shall
 be determined by a member in good standing of a recognized  professional
 association  representing  its respective profession in the state of New
 York appointed by the chair. Decisions rendered under the  single  arbi-
 trator  process  shall be conclusive upon the parties as to the value of
 the services in dispute.
   (b) If the parties fail to agree  as  to  the  value  of  medical  aid
 rendered  under this chapter and the amount of the disputed bill exceeds
 one thousand dollars, such value shall  be  decided  by  an  arbitration
 committee  unless  the  health care provider expressly requests a single
 arbitrator process in accordance with paragraph (a) of this subdivision.

 A. 242                              3
 
 The arbitration committee shall consist of one physician  designated  by
 the  president 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 chair of the workers' compensation board. If
 the physician 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 chair
 of the workers' compensation board. Where the value of physical  therapy
 services  is  at  issue  and the amount of the disputed bill exceeds one
 thousand dollars, 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 chair of the workers' compensation
 board provided however, that the 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  committee  so  comprised.  In  all
 other cases where the value of physical therapy services is at issue and
 the  amount of the disputed bill exceeds one thousand dollars, the arbi-
 tration committee shall be similarly selected and identical in  composi-
 tion,  provided  that  the physical therapist member shall serve without
 remuneration, and provided further that in the event a  physical  thera-
 pist  is not available, the committee shall be comprised of three physi-
 cians designated in the same manner as  in  cases  where  the  value  of
 medical aid is at issue.
   (c)  Where  the value of occupational therapy services is at issue the
 arbitration committee shall consist of a member in good  standing  of  a
 recognized professional association representing occupational therapists
 in  the  state  of New York appointed by the president of such organiza-
 tion; a physician designated by the employer or carrier and a  physician
 designated  by  the  chair  of the workers' compensation board provided,
 however, that the 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 and
 the amount of the disputed bill exceeds one thousand dollars, the  arbi-
 tration  committee shall be similarly selected and identical in composi-
 tion, provided that the occupational therapist member shall serve  with-
 out 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. The majority decision of any such arbitration
 committee shall be conclusive upon the parties as to the  value  of  the
 services in dispute.
   (3) (a) If an employer shall have notified the hospital in writing, as
 provided  in  subdivision one of this section, why the bill has not been
 paid, in part or in full, and the amount of the  disputed  bill  is  one
 thousand  dollars  or  less, or where the amount of the disputed medical
 bill  exceeds  one  thousand  dollars  and  the  hospital  expressly  so
 requests,  such  value  shall be decided by a single arbitrator process,
 pursuant to rules promulgated by the chair. The chair  shall  appoint  a
 physician  in  good  standing  licensed to practice in New York state to

 A. 242                              4
 
 determine the value of such disputed bill. Decisions rendered under  the
 administrative resolution procedure shall be conclusive upon the parties
 as to the value of the services in dispute.
   (b)  If  an  employer  shall have notified the hospital in writing, as
 provided in subdivision one of this section, why the bill has  not  been
 paid,  in  part  or in full, and the amount of the disputed bill exceeds
 one thousand dollars, the value of such bill shall be determined  by  an
 arbitration  committee  appointed  by  the chair for that purpose, which
 committee shall consider all of the charges of the hospital, unless  the
 hospital  expressly  requests  a  single  arbitrator process pursuant to
 paragraph (a) of this subdivision. The committee shall consist of  three
 physicians.  One  member  of the committee may be nominated by the chair
 upon recommendation of the president of the hospital association of  New
 York  state and one member may be nominated by the employer or insurance
 carrier. The majority decision of any such committee shall be conclusive
 upon the parties as to the value of the services rendered. The chair may
 make reasonable rules and regulations consistent with the provisions  of
 this section.
   (4)  (A) IF AN EMPLOYER SHALL HAVE NOTIFIED THE PHARMACIST IN WRITING,
 AS PROVIDED IN SUBDIVISION ONE OF THIS SECTION, WHY  THE  BILL  HAS  NOT
 BEEN PAID, IN PART OR IN FULL, AND THE PHARMACIST EXPRESSLY SO REQUESTS,
 THE VALUE AND LIABILITY SHALL BE DECIDED BY A SINGLE ARBITRATOR PROCESS,
 PURSUANT  TO  RULES  PROMULGATED BY THE CHAIR. THE CHAIR SHALL APPOINT A
 PHARMACIST IN GOOD STANDING LICENSED TO PRACTICE IN NEW  YORK  STATE  TO
 DETERMINE  THE  VALUE  AND  LIABILITY  OF  SUCH DISPUTED BILL. DECISIONS
 RENDERED UNDER THE ADMINISTRATIVE RESOLUTION PROCEDURE SHALL BE  CONCLU-
 SIVE  UPON THE PARTIES AS TO THE VALUE AND LIABILITY OF THE PRESCRIPTION
 IN DISPUTE.
   (B) IF AN EMPLOYER SHALL HAVE NOTIFIED THE PHARMACIST IN  WRITING,  AS
 PROVIDED  IN  SUBDIVISION ONE OF THIS SECTION, WHY THE BILL HAS NOT BEEN
 PAID, IN PART OR IN FULL, THE AMOUNT OF THE DISPUTED BILL  EXCEEDS  FIVE
 HUNDRED  DOLLARS, AND THE BILL HAS A COMMON VENDOR, PROVIDER, AND PAYER,
 THE VALUE OF SUCH BILL SHALL BE DETERMINED BY AN  ARBITRATION  COMMITTEE
 APPOINTED  BY THE CHAIR FOR THAT PURPOSE, WHICH COMMITTEE SHALL CONSIDER
 ALL OF THE CHARGES OF THE PHARMACIST, UNLESS  THE  PHARMACIST  EXPRESSLY
 REQUESTS  A  SINGLE ARBITRATOR PROCESS PURSUANT TO PARAGRAPH (A) OF THIS
 SUBDIVISION. THE ARBITRATION COMMITTEE SHALL CONSIST  OF  THREE  PHARMA-
 CISTS  IN GOOD STANDING LICENSED TO PRACTICE IN NEW YORK STATE TO DETER-
 MINE THE VALUE AND LIABILITY OF SUCH DISPUTED BILL.  ONE MEMBER  OF  THE
 COMMITTEE  MAY BE NOMINATED BY THE CHAIR, ONE MEMBER MAY BE NOMINATED BY
 THE PROFESSIONAL PHARMACY ASSOCIATION AFFILIATED  WITH  THE  COMPLAINANT
 AND  ONE  MEMBER  MAY BE NOMINATED BY THE EMPLOYER OR INSURANCE CARRIER.
 THE MAJORITY DECISION OF ANY SUCH COMMITTEE SHALL BE CONCLUSIVE UPON THE
 PARTIES AS TO THE VALUE OF THE SERVICES RENDERED.  THE CHAIR SHALL  MAKE
 REASONABLE  RULES AND REGULATIONS CONSISTENT WITH THE PROVISIONS OF THIS
 SECTION.
   (5) A provider initiating an arbitration, including a single  arbitra-
 tor  process,  pursuant to this section shall not pay a fee to cover the
 costs related to the conduct of such  arbitration.  Each  member  of  an
 arbitration  committee  for medical bills, [and] each member of an arbi-
 tration committee for hospital bills AND EACH MEMBER OF  AN  ARBITRATION
 COMMITTEE  FOR  PHARMACY BILLS shall be entitled to receive and shall be
 paid a fee for each day's attendance at an arbitration  session  in  any
 one  count  in an amount fixed by the chair of the workers' compensation
 board.

 A. 242                              5
 
   [(5)] (6) In claims where the employer has failed  to  secure  compen-
 sation  to  his  OR  HER  employees as required by section fifty of this
 chapter, the board may make an award for the value of medical and podia-
 try services or treatment rendered to such employees, in accordance with
 the  schedules  of  fees  and charges prepared and established under the
 provisions of SUBDIVISION (A) OF section thirteen[, subdivision a,]  and
 SUBDIVISION TWO OF section thirteen-k[, subdivision two,] of this [chap-
 ter]  ARTICLE,  and for the reasonable value of hospital care in accord-
 ance with the charges currently in force in hospitals in the same commu-
 nity for cases coming within the provisions of this chapter. Such  award
 shall  be made to the physician, podiatrist, or hospital entitled there-
 to. A default in the payment of such award may be enforced in the manner
 provided for the enforcement of compensation  awards  as  set  forth  in
 section twenty-six of this [chapter] ARTICLE.
   In all cases coming under this subdivision the payment of the claim of
 the  physician, podiatrist, or hospital for medical, podiatry, or surgi-
 cal services or treatment shall be subordinate to that of  the  claimant
 or his OR HER beneficiaries.
   [(6)]  (7)  Notwithstanding  any  inconsistent provision of law, arbi-
 tration regarding payments  for  inpatient  hospital  services  for  any
 patient  discharged  on or after January first, nineteen hundred ninety-
 one and prior to  December  thirty-first,  nineteen  hundred  ninety-six
 shall  be resolved in accordance with paragraph (d) of subdivision three
 of section twenty-eight hundred seven-c of the public health law.
   § 2. The chair of the workers'  compensation  board  shall  promulgate
 such  regulations  as  he  or  she  deems  appropriate  to carry out the
 purposes of this act. Such regulations may include, but are not  limited
 to,  what defenses, if any, may be available to employers or carriers in
 arbitration to determine the value or liability of a pharmaceutical bill
 pursuant to the provisions of this act.
   § 3. This act shall take effect on the one hundred twentieth day after
 it shall have become a law; provided that,  effective  immediately,  the
 addition,  amendment,  and/or repeal of any rules and regulations neces-
 sary to implement the provisions of this act on its effective  date  are
 authorized  and  directed  to  be  completed on or before such effective
 date.