S T A T E O F N E W Y O R K
2013-2014 Regular Sessions
I N S E N A T E
February 5, 2013
Introduced by Sen. SEWARD -- read twice and ordered printed, and when
printed to be committed to the Committee on Insurance
AN ACT to amend the insurance law, in relation to providing for the use
of treatment guidelines under the comprehensive motor vehicle repara-
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 5108 of the insurance law is amended to read as
S 5108. Limit on charges by providers of health services. (a) The
charges for services specified in paragraph one of subsection (a) of
section five thousand one hundred two of this article and any further
health service charges which are incurred as a result of the injury and
which are in excess of basic economic loss, shall not exceed the charges
permissible under the schedules prepared and established by the chairman
of the workers' compensation board for industrial accidents, except
where the insurer or arbitrator determines that unusual procedures or
unique circumstances justify the excess charge, AND SHALL BE SUBJECT TO
THE TREATMENT GUIDELINES ESTABLISHED PURSUANT TO SUBSECTION (D) OF THIS
SECTION. AT NO TIME SHALL AN INSURER PAY ANY CHARGE THAT EXCEEDS THE
CHARGES PERMISSIBLE UNDER THE SCHEDULE PREPARED AND ESTABLISHED BY THE
CHAIR OF THE WORKERS' COMPENSATION BOARD.
(b) The superintendent, after consulting with the chairman of the
workers' compensation board and the commissioner of health, shall
promulgate rules and regulations implementing and coordinating the
provisions of this article and the workers' compensation law with
respect to charges for the professional health services specified in
paragraph one of subsection (a) of section five thousand one hundred two
of this article, including the establishment of schedules for all such
services for which schedules have not been prepared and established by
the chairman of the workers' compensation board, INCLUDING, BUT NOT
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
S. 3546 2
LIMITED TO, DURABLE MEDICAL EQUIPMENT OR SUPPLIES. ADDITIONALLY, THE
SUPERINTENDENT, AFTER CONSULTATION WITH THE WORKERS' COMPENSATION BOARD
AND THE COMMISSIONER OF HEALTH, SHALL PROMULGATE TREATMENT GUIDELINES
WITH RESPECT TO TREATING COVERED PERSONS. CHARGES FOR SERVICES THAT ARE
NOT SPECIFICALLY SCHEDULED BY THE SUPERINTENDENT OF INSURANCE OR THE
CHAIRMAN OF THE WORKERS' COMPENSATION BOARD, OR ARE NOT COMPENSABLE
CHARGES UNDER MEDICARE ARE NOT COMPENSABLE HEALTH SERVICE CHARGES UNDER
SUBSECTION (A) OF SECTION FIVE THOUSAND ONE HUNDRED TWO OF THIS ARTICLE.
(c) No provider of health services specified in paragraph one of
subsection (a) of section five thousand one hundred two of this article
may demand or request any payment in addition to the charges authorized
pursuant to this section. NO SUCH PROVIDER MAY BE REIMBURSED FOR ANY
SERVICES UNLESS THE PROVIDER COMPLIES WITH SUBSECTION (D) OF THIS
SECTION. Every insurer shall report to the commissioner of health any
patterns of overcharging, excessive treatment or other improper actions
by a health provider within thirty days after such insurer has knowledge
of such pattern.
(D) NOTWITHSTANDING ANY OTHER PROVISION OF STATUTE, RULE OR REGULATION
TO THE CONTRARY, THE FOLLOWING SHALL APPLY FOR ALL INDIVIDUALS OR ENTI-
TIES THAT PROVIDE, TREAT, OR CHARGE FOR SERVICES SPECIFIED IN PARAGRAPH
ONE OF SUBSECTION (A) OF SECTION FIVE THOUSAND ONE HUNDRED TWO OF THIS
(1) THE TREATING PROVIDER SHALL FOLLOW THE TREATMENT GUIDELINES ESTAB-
LISHED BY THE SUPERINTENDENT;
(2) DEVIATIONS FROM THE TREATMENT GUIDELINES MAY BE PERMITTED UNDER
THE FOLLOWING CONDITIONS:
(I) PRIOR WRITTEN OR ELECTRONIC REQUEST IS GIVEN TO THE INSURER PRIOR
TO COMMENCING TREATMENT. THE REQUEST SHALL CONTAIN JUSTIFICATION FOR THE
DEVIATION FROM THE TREATMENT GUIDELINES. THE BURDEN OF SHOWING THE
NECESSITY OF THE DEVIATION REMAINS SOLELY ON THE TREATING PROVIDER.
FAILURE TO PROVIDE THIS REQUEST SHALL RESULT IN A MAXIMUM REIMBURSEMENT
OF FIFTY PERCENT OF THE TREATMENT GUIDELINES.
(II) THE INSURER SHALL NOT BE PRECLUDED FROM EVALUATING THE DEVIATION
FOR PAYMENT DURING THE PENDENCY OF THE REVIEW, AND MAY UTILIZE PEER
REVIEW FOR EVALUATION OF THE DEVIATION.
(III) ANY DISPUTES SHALL BE RESOLVED THROUGH A PANEL OF EXPERTS WHO
HAVE BEEN TRAINED OR CERTIFIED IN THE TREATMENT GUIDELINES PURSUANT TO
SUBSECTION (E) OF SECTION FIVE THOUSAND ONE HUNDRED SIX OF THIS ARTICLE.
(3) AN INSURER MAY SCHEDULE AN INDEPENDENT MEDICAL EXAMINATION AT ANY
TIME DURING THE COURSE OF TREATMENT.
(4) SERVICES OR SUPPLIES NOT COVERED BY THE TREATMENT GUIDELINES OR
THE WORKERS' COMPENSATION FEE SCHEDULE SHALL NOT BE COMPENSABLE.
S 2. Section 5106 of the insurance law is amended by adding a new
subsection (e) to read as follows:
(E) EVERY INSURER SHALL PROVIDE THE TREATING PROVIDER WITH THE OPTION
OF SUBMITTING A DISPUTE INVOLVING A REQUEST FOR DEVIATIONS FROM THE
TREATMENT GUIDELINES UNDER SUBSECTION (D) OF SECTION FIVE THOUSAND ONE
HUNDRED EIGHT OF THIS ARTICLE TO ARBITRATION PURSUANT TO SIMPLIFIED
PROCEDURES PROMULGATED OR APPROVED BY THE SUPERINTENDENT. SUCH SIMPLI-
FIED PROCEDURES SHALL INCLUDE ARBITRATION THROUGH A PANEL OF EXPERTS WHO
HAVE BEEN TRAINED OR CERTIFIED IN THE TREATMENT GUIDELINES.
S 3. This act shall take effect immediately and shall apply to all
actions and proceedings commenced on or after such date; and shall also
apply to any action or proceeding which was commenced prior to such
effective date where, as of such date, a trial of the issues has not yet