senate Bill S1326

2011-2012 Legislative Session

Provides factors and requirements to be considered and followed when health care practitioner's diagnosis differs from treating health care practitioner as to disability

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to social services
Jan 06, 2011 referred to social services

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S1326 - Bill Details

See Assembly Version of this Bill:
A2957
Current Committee:
Law Section:
Social Services Law
Laws Affected:
Amd §332-b, Soc Serv L
Versions Introduced in 2009-2010 Legislative Session:
S5547, A1417A

S1326 - Bill Texts

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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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BILL NUMBER:S1326

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.

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

                                  1326

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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

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