senate Bill S5373

2011-2012 Legislative Session

Enacts the "adversarial medical examination procedure act"

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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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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to judiciary
Jun 24, 2011 committed to rules
Jun 14, 2011 advanced to third reading
Jun 13, 2011 2nd report cal.
Jun 07, 2011 1st report cal.1081
May 13, 2011 referred to judiciary

Votes

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Jun 7, 2011 - Judiciary committee Vote

S5373
16
0
committee
16
Aye
0
Nay
7
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Co-Sponsors

S5373 - Bill Details

See Assembly Version of this Bill:
A673
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §3121, CPLR; amd §5102, Ins L; amd §§13-a, 13-b, 13-d, 13-k, 13-l, 13-m, 13-n & 137, Work Comp L; amd §50-h, Gen Muni L; amd §17-a, Ct Claims Act
Versions Introduced in 2009-2010 Legislative Session:
A10742A, S7874A

S5373 - Bill Texts

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Enacts the "adversarial medical examination procedure act"; authorizes adversarial medical examinations and limits any physician-patient relationship resulting from such a medical examination; provides that the person subject to the examination shall have the right to representation.

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BILL NUMBER:S5373

TITLE OF BILL:
An act
to amend the civil practice law and rules, the insurance law, the
workers' compensation law,
the general municipal law and the
court of claims act,
in relation to enacting the
"adversarial medical examination procedure act"

PURPOSE:
The purpose of this bill is to ensure that physical and mental
examinations conducted in the course of civil litigation proceed
fairly and in accordance with the civil practice law and rules and
due process.

SUMMARY OF PROVISIONS:
Section 1 titles the act as the "adversarial medical examination
procedure act".

Section 2 provides the legislative findings forming the basis for the
act.

Section 3 amends section 3121 of the civil practice law and rules to
designate physical and mental examinations conducted in the course of
civil litigation as "adversarial medical examinations; to inform the
person subject to the examination of their right to have a
representative present during such examination and of their right to
record or tape such examination; to protect the person subject to the
adversarial medical examination from being required to produce any
documents or supply any written answers to questions put to them at
such examination except as in response to properly served discovery
demands made pursuant to the civil practice law and rules; and to
require that a report of the adversarial medical examination shall be
delivered to each party within thirty days.

Section 4 amends section 5102 of the insurance law prescribe
procedures for the conducting of adversarial medical examinations.

Sections 5 through 12 amends various sections of the workers'
compensation law to prescribe procedures for the conducting of
adversarial medical examinations.

Section 13 amends various sections of the general municipal law to
prescribe procedures for the conducting of adversarial medical
examinations by cities, counties, towns, villages, fire districts,
ambulance districts, school districts or public authorities.

Section 14 amends section 17 -a of the court of claims act to describe
the conducting of a physical examination as an "adversarial medical
examination."

Section 15 provides that the act shall take effect immediately and
apply to currently pending actions and proceedings, and to
proceedings commenced subsequent to such date.


JUSTIFICATION:
The conducting of physical and mental examinations in the course of
civil litigation has evolved in a manner inconsistent with the civil
practice law and rules and fundamental notions of due process.
Indeed, the commonly used term for such examinations, an "independent
medical examination," is itself a misnomer because the physician
conducting such examination is not at all independent, but is in fact
being compensated by a party or insurer whose interests are typically
adverse to those of the party being examined. Further, parties being
examined are frequently required to provide written responses to
questions outside the discovery process prescribed in the civil
practice law and rules and without the opportunity to obtain advice
of counsel, even though such written responses can and are being used
as admissions and/or to later impeach the examined party in the
course of such proceeding. Accordingly, the name by which such an
examination is called needs to be changed to reflect the true
adversarial nature of such examination; and the process for obtaining
information from the party to be examined which is necessary to the
proper conducting of the examination needs to be brought within the
carefully considered discovery process which
already exists in the civil practice law and rules.

LEGISLATIVE HISTORY:
A.10742 (2010).

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all
currently pending actions and proceedings, and to proceedings
commenced subsequent to such date.

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

                                  5373

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              May 13, 2011
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Judiciary

AN ACT to amend the civil practice law and rules, the insurance law, the
  workers' compensation law, the general municipal law and the court  of
  claims  act, in relation to enacting the "adversarial medical examina-
  tion procedure act"

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Short title.  This act shall be known and may be cited as
the "adversarial medical examination procedure act".
  S 2. The legislature hereby finds and declares that the conducting  of
physical  and  mental examinations in the course of civil litigation and
other civil proceedings has evolved in a manner  inconsistent  with  the
civil  practice  law  and  rules and fundamental notions of due process.
Indeed, a commonly used term  for  such  examinations,  an  "independent
medical  examination,"  is  itself  a  misnomer  because  the  physician
conducting such examination is not at all independent, but  is  in  fact
being  compensated  by  a party or insurer whose interests are typically
adverse to those of the party being  examined.  Further,  parties  being
examined  are  frequently required to provide written responses to ques-
tions outside the discovery process prescribed in the civil practice law
and rules or relevant claims process  and  without  the  opportunity  to
obtain advice of counsel, even though such written responses can and are
being  used  as admissions and/or to later impeach the examined party in
the course of such proceeding.  Accordingly, the name by which  such  an
examination  is  called  needs  to be changed to reflect the true adver-
sarial nature of such examination; the process for obtaining information
from the party to be examined which is necessary to the proper  conduct-
ing  of the examination needs to be brought within the carefully consid-
ered discovery process which already exists in the  civil  practice  law
and rules or claims process.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01389-02-1

S. 5373                             2

  S 3. Section 3121 of the civil practice law and rules, subdivision (a)
as  amended  by  chapter  294 of the laws of 1984, is amended to read as
follows:
  S  3121.  [Physical  or  mental]  ADVERSARIAL MEDICAL examination. (a)
Notice of AN ADVERSARIAL MEDICAL examination. After commencement  of  an
action  in which the mental or physical condition or the blood relation-
ship of a party, or of an agent, employee or person in  the  custody  or
under  the  legal  control  of a party, is in controversy, any party may
serve notice on another party to submit to a physical, mental  or  blood
[examination]  "ADVERSARIAL  MEDICAL EXAMINATION" by a designated physi-
cian, or to produce for such ADVERSARIAL MEDICAL examination his OR  HER
agent,  employee or the person in his OR HER custody or under his OR HER
legal control. The notice may require  duly  executed  and  acknowledged
written authorizations permitting all parties to obtain, and make copies
of,  the records of specified hospitals relating to such mental or phys-
ical condition or blood relationship; where a party obtains a copy of  a
hospital record as a result of the authorization of another party, he OR
SHE  shall  deliver a duplicate of the copy to such party. A copy of the
notice shall be served on the person SUBJECT to [be examined] THE ADVER-
SARIAL MEDICAL EXAMINATION.  It shall specify the time, which  shall  be
not  less  than  twenty days after service of the notice, and the condi-
tions and scope of the ADVERSARIAL MEDICAL  examination,  AND  IT  SHALL
INFORM  THE  PERSON  SUBJECT  TO  THE EXAMINATION THAT HE OR SHE HAS THE
RIGHT TO HAVE A REPRESENTATIVE  PRESENT  DURING  SUCH  EXAMINATION,  AND
SHALL HAVE THE RIGHT TO RECORD OR TAPE SUCH EXAMINATION IN A MANNER SUCH
AS  NOT  TO UNREASONABLY IMPEDE SUCH EXAMINATION.  THE PERSON SUBJECT TO
THE ADVERSARIAL MEDICAL EXAMINATION SHALL NOT BE REQUIRED TO PRODUCE ANY
DOCUMENTS OR SUPPLY ANY WRITTEN ANSWERS TO QUESTIONS PUT TO HIM  OR  HER
AT  SUCH  EXAMINATION EXCEPT AS IN RESPONSE TO PROPERLY SERVED DISCOVERY
DEMANDS MADE PURSUANT TO THE CIVIL PRACTICE LAW AND RULES.
  (b) Copy of report. A copy of a detailed written report of the examin-
ing physician setting out [his] THE  findings  and  conclusions  OF  THE
ADVERSARIAL  MEDICAL EXAMINATION shall be delivered by the party seeking
the ADVERSARIAL MEDICAL examination to [any] EACH party  [requesting  to
exchange therefor a copy of each report in his control of an examination
made  with  respect  to the mental or physical condition in controversy]
WITHIN THIRTY DAYS OF SUCH EXAMINATION.
  (C) FAILURE TO EXCHANGE. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT
THE RIGHTS OF ANY PARTY FROM MOVING TO PRECLUDE  OR  FOR  SEEKING  OTHER
SANCTIONS  PURSUANT TO RULE 3124 OR SECTION 3126 FOR FAILURE TO EXCHANGE
A DETAILED WRITTEN REPORT OF AN "ADVERSARIAL MEDICAL  EXAMINATION"  UPON
OTHER PARTIES TO AN ACTION.
  S  4.    Section  5102 of the insurance law is amended by adding a new
subsection (n) to read as follows:
  (N) "ADVERSARIAL MEDICAL EXAMINATION" MEANS ANY  PHYSICAL  EXAMINATION
REQUESTED  BY  AN  INSURER  MADE IN RESPONSE TO A CLAIM MADE PURSUANT TO
BENEFITS UNDER THIS ARTICLE. THE PERSON  SUBJECT  TO  EXAMINATION  SHALL
HAVE  THE RIGHT TO HAVE A REPRESENTATIVE PRESENT DURING SUCH EXAMINATION
AND SHALL HAVE THE RIGHT TO RECORD OR TAPE SUCH EXAMINATION IN A  MANNER
SUCH  AS  NOT  TO UNREASONABLY IMPEDE SUCH EXAMINATION. THE PERSON TO BE
EXAMINED SHALL BE INFORMED OF SUCH RIGHTS AT LEAST TWENTY DAYS PRIOR  TO
SUCH  EXAMINATION.   IF SUCH EXAMINATION SHALL BE USED TO DENY, IN WHOLE
OR IN PART, ANY BENEFITS UNDER THIS SECTION,  A  COPY  OF  THE  DETAILED
WRITTEN  REPORT  OF SUCH EXAMINATION, WRITTEN BY THE EXAMINING PHYSICIAN
OR HEALTH CARE PROFESSIONAL, SHALL BE PROVIDED TO THE INJURED PARTY  AND
ANY  THIRD-PARTY  MEDICAL  PROVIDER  TO  WHOM THE INJURED PARTY MAY HAVE

S. 5373                             3

ASSIGNED HIS OR HER CLAIM OR CLAIMS FOR BENEFITS ALONG WITH  ANY  DENIAL
OF  BENEFITS. IN THE EVENT SUCH REPORT IS NOT SO PROVIDED BY THE INSURER
OR SELF-INSURER ALONG WITH THE DENIAL, THE INSURER  SHALL  BE  PRECLUDED
FROM USING SUCH REPORT TO SUPPORT ANY DENIAL OF SUCH CLAIM.
  S  5.  Subdivision 4 of section 13-a of the workers' compensation law,
as amended by chapter 473 of the laws of 2000, is  amended  to  read  as
follows:
  (4)  (a) No claim for medical or surgical treatment shall be valid and
enforceable, as  against  such  employer,  or  employee,  unless  within
forty-eight  hours  following  the  first treatment the physician giving
such treatment furnishes to the employer and directly  to  the  chair  a
preliminary  notice  of  such  injury and treatment, within fifteen days
thereafter a  more  complete  report  and  subsequent  thereto  progress
reports  if requested in writing by the chair, board, employer or insur-
ance carrier at intervals of not less than three weeks apart or at  less
frequent  intervals  if requested on forms prescribed by the chair.  The
board may excuse failure to give  such  notices  within  the  designated
periods when it finds it to be in the interest of justice to do so.
  (b)  Upon  receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each  shall  be
entitled  to have the claimant examined by a physician authorized by the
chair in accordance with sections thirteen-b and one hundred thirty-sev-
en of this chapter, at a medical facility convenient to the claimant and
in the presence of the claimant's physician, and refusal by the claimant
to submit to such [independent] ADVERSARIAL medical examination at  such
time  or  times  as  may  reasonably  be necessary in the opinion of the
board, shall bar the claimant from recovering compensation for any peri-
od during which he or she has refused to submit to such examination.  No
hospital shall be required to produce the records of any claimant  with-
out  receiving  its  customary  fees or charges for reproduction of such
records.
  (c) Where it would place an unreasonable burden upon the  employer  or
carrier  to arrange for, or for the claimant to attend, an [independent]
ADVERSARIAL medical examination by an authorized physician, the employer
or carrier shall arrange for such examination to be performed by a qual-
ified physician in a medical facility convenient to the claimant.
  (d) The [independent] ADVERSARIAL medical examiner shall provide  such
reports and shall submit to investigation as required by the chair.
  (e)  In  order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any  report  submitted  to
the  board  by an [independent] ADVERSARIAL medical examiner licensed by
the state of New York shall include the following:
  (i) a signed statement certifying that the report is a full and truth-
ful representation of the [independent] ADVERSARIAL  medical  examiner's
professional opinion with respect to the claimant's condition:
  (ii) such examiner's board issued authorization number;
  (iii) the name of the individual or entity requesting the examination;
  (iv)  if  applicable,  the  registration number as required by section
thirteen-n of this article; and
  (v) such other information as the chair may require by regulation.
  Any report by an [independent] ADVERSARIAL medical examiner who is not
authorized, and who performs an [independent] ADVERSARIAL medical  exam-
ination  in  accordance with paragraph (c) of this subdivision, which is
to be used as medical evidence under this chapter, shall include in  the
report such information as the chair may require by regulation.

S. 5373                             4

  S 6. Subdivisions 1 and 2 of section 13-b of the workers' compensation
law,  as amended by chapter 473 of the laws of 2000, are amended to read
as follows:
  1.  Upon  the  recommendation  of the medical society of the county in
which the physician's office is located or of a board designated by such
county society or of a board representing duly  licensed  physicians  of
any  other  school  of  medical  practice  in such county, the chair may
authorize physicians licensed to practice medicine in the state  of  New
York to render medical care under this chapter and to perform [independ-
ent]  ADVERSARIAL  medical  examinations  in accordance with subdivision
four of section thirteen-a of this article. If, within sixty days  after
the  chair  requests  such  recommendations  the medical society of such
county or board fails to act, or if there is no  such  society  in  such
county,  the  chair  shall designate a board of three outstanding physi-
cians, who shall make the requisite recommendations.
  No such authorization shall be made in the absence of a recommendation
of the appropriate society or board or of a review and recommendation by
the medical appeals unit. No person shall render medical care or conduct
[independent] ADVERSARIAL medical examinations under this chapter  with-
out such authorization by the chair, provided, that:
  (a)  Any  physician  licensed to practice medicine in the state of New
York may render  emergency  medical  care  under  this  chapter  without
authorization by the chair under this section; and
  (b)  A  licensed  physician  who  is a member of a constituted medical
staff of any hospital may render medical care under this  chapter  while
an injured employee remains a patient in such hospital; and
  (c)  Under the active and personal supervision of an authorized physi-
cian medical care may be rendered by a registered nurse or other  person
trained  in laboratory or diagnostic techniques within the scope of such
person's specialized training and qualifications. This supervision shall
be evidenced by signed records of instructions for treatment and  signed
records  of the patient's condition and progress. Reports of such treat-
ment and supervision shall be made by such physician  to  the  chair  on
such forms and at such times as the chair may require.
  (d)  Upon  the  referral  which may be directive as to treatment of an
authorized physician physical therapy care may be  rendered  by  a  duly
licensed  physical  therapist.  Where  physical therapy care is rendered
records of the patient's condition and progress, together  with  records
of  instruction  for treatment, if any, shall be maintained by the phys-
ical therapist and physician. Said records shall  be  submitted  to  the
chair on such forms and at such times as the chair may require.
  (e) Upon the prescription or referral of an authorized physician occu-
pational  therapy  care  may be rendered by a duly licensed occupational
therapist. Where occupational therapy care is rendered  records  of  the
patient's  condition  and progress, together with records of instruction
for treatment, if any shall be maintained by the occupational  therapist
and physician. Said records shall be submitted to the chair on forms and
at such times as the chair may require.
  (f)  Where  it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an  [independent]
ADVERSARIAL medical examination by an authorized physician, the employer
or carrier shall arrange for such examination to be performed by a qual-
ified physician in a medical facility convenient to the claimant.
  2.  A physician licensed to practice medicine in the state of New York
who is desirous of being authorized to render medical  care  under  this
chapter and/or to conduct [independent] ADVERSARIAL medical examinations

S. 5373                             5

in  accordance  with  paragraph (b) of subdivision four of section thir-
teen-a and section one hundred thirty-seven of this chapter  shall  file
an  application  for  authorization  under this chapter with the medical
society  in  the county in which his or her office is located, or with a
board designated by such society, or with  a  board  designated  by  the
chair  as  provided  in  this section. In such application the applicant
shall state his or her training and qualifications, and shall  agree  to
limit  his  or  her  professional  activities under this chapter to such
medical care and [independent] ADVERSARIAL medical examinations, as  his
or  her experience and training qualify him or her to render. The appli-
cant shall further agree  to  refrain  from  subsequently  treating  for
remuneration,  as  a  private patient, any person seeking medical treat-
ment, or submitting to an [independent] ADVERSARIAL medical examination,
in connection with, or as a result of, any injury compensable under this
chapter, if he or she has been  removed  from  the  list  of  physicians
authorized  to  render  medical  care or to conduct [independent] ADVER-
SARIAL medical examinations under this chapter, or if the person seeking
such treatment, or submitting to an  [independent]  ADVERSARIAL  medical
examination,  has  been  transferred  from his or her care in accordance
with the provisions of this chapter. This agreement  shall  run  to  the
benefit  of  the  injured  person  so  treated or examined, and shall be
available to him or her as a defense in any action by such physician for
payment for treatment rendered by a physician after he or she  has  been
removed from the list of physicians authorized to render medical care or
to  conduct  [independent]  ADVERSARIAL  medical examinations under this
chapter, or after the injured person was transferred  from  his  or  her
care  in  accordance  with  the  provisions of this chapter. The medical
society or the board  designated  by  it,  or  the  board  as  otherwise
provided  under  this  section, if it deems such licensed physician duly
qualified, shall recommend to the chair that such physician  be  author-
ized  to  render  medical  care and/or conduct [independent] ADVERSARIAL
medical examinations under this chapter,  and  such  recommendation  and
authorization  shall specify the character of the medical care or [inde-
pendent] ADVERSARIAL medical examination which such physician is  quali-
fied  and  authorized to render under this chapter. Such recommendations
shall be advisory to the chair only and shall not be binding or  conclu-
sive  upon him or her. The licensed physician may present to the medical
society or board, evidences of additional  qualifications  at  any  time
subsequent to his or her original application. If the medical society or
board  fails to recommend to the chair that a physician be authorized to
render medical care and/or to conduct [independent] ADVERSARIAL  medical
examinations under this chapter, the physician may appeal to the medical
appeals  unit. The medical society or the board designated by it, or the
board as otherwise provided under this section, may upon its own  initi-
ative, or shall upon request of the chair, review at any time the quali-
fications  of  any  physician as to the character of the medical care or
[independent] ADVERSARIAL medical examinations which such physician  has
theretofore  been authorized to render under this chapter and may recom-
mend to the chair that such physician be authorized  to  render  medical
care or to conduct [independent] ADVERSARIAL medical examinations there-
after of the character which such physician is then qualified to render.
On  such  advisory recommendation the chair may review and after reason-
able investigation may  revise  the  authorization  of  a  physician  in
respect to the character of medical care and/or to conduct [independent]
ADVERSARIAL  medical  examinations  which  he  or  she  is authorized to
render. If the medical society or board recommends to the chair  that  a

S. 5373                             6

physician  be authorized to render medical care and/or to conduct [inde-
pendent] ADVERSARIAL medical examinations under this chapter of a  char-
acter  different  from  the  character  of medical care or [independent]
ADVERSARIAL  medical examinations he or she has been theretofore author-
ized to render, such physician may appeal from  such  recommendation  to
the medical appeals unit.
  S  7. The section heading and the opening paragraph and paragraphs (b)
and (g) of subdivision 2 of section 13-d of  the  workers'  compensation
law,  the  section  heading,  the opening paragraph and paragraph (g) of
subdivision 2, as amended by chapter 473 of the laws of 2000,  paragraph
(b)  of  subdivision 2, as amended by chapter 6 of the laws of 2007, are
amended to read as follows:
  Removal of physicians from lists of those authorized to render medical
care or to conduct [independent] ADVERSARIAL medical examinations.
  The chair shall remove from  the  list  of  physicians  authorized  to
render  medical  care  under  this  chapter, or to conduct [independent]
ADVERSARIAL medical examinations in accordance  with  paragraph  (b)  of
subdivision  four of section thirteen-a of this article, the name of any
physician who he or she shall find  after  reasonable  investigation  is
disqualified because such physician:
  (b)  has  exceeded the limits of his or her professional competence in
rendering  medical  care  or  in  conducting  [independent]  ADVERSARIAL
medical  examinations under the law, or has made materially false state-
ments regarding his or her qualifications in his or her application  for
the  recommendation  of  the  medical  society  or  board as provided in
section thirteen-b of this article; or
  (g) has directly or indirectly requested, received or participated  in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or prof-
ited  by  means of a credit or other valuable consideration as a commis-
sion, discount or gratuity in connection with the furnishing of  medical
or  surgical  care,  an  [independent]  ADVERSARIAL medical examination,
diagnosis or treatment  or  service,  including  X-ray  examination  and
treatment,  or  for or in connection with the sale, rental, supplying or
furnishing of clinical laboratory services or supplies, X-ray laboratory
services or supplies, inhalation therapy service or equipment, ambulance
service, hospital or medical supplies, physiotherapy or other  therapeu-
tic service or equipment, artificial limbs, teeth or eyes, orthopedic or
surgical  appliances or supplies, optical appliances, supplies or equip-
ment, devices for aid of hearing, drugs, medication or medical supplies,
or any other goods, services or supplies prescribed for medical  diagno-
sis,  care  or  treatment,  under  this  chapter; except that reasonable
payment, not exceeding the technical  component  fee  permitted  in  the
medical  fee schedule, established under this chapter for X-ray examina-
tions, diagnosis or treatment, may be made by a physician  duly  author-
ized  as  a  roentgenologist  to  any hospital furnishing facilities and
equipment for such examination, diagnosis or  treatment,  provided  such
hospital  does  not  also submit a charge for the same services. Nothing
contained in this paragraph shall prohibit such physicians who  practice
as  partners, in groups or as a professional corporation or as a univer-
sity faculty practice corporation from pooling fees and moneys received,
either by the partnership, professional corporation, university  faculty
practice  corporation  or  group  by the individual members thereof, for
professional services furnished by any individual  professional  member,
or  employee  of  such  partnership, corporation or group, nor shall the
professionals constituting the partnerships, corporations, or groups  be

S. 5373                             7

prohibited  from  sharing,  dividing or apportioning the fees and moneys
received by them or by the partnership, corporation or group in  accord-
ance with a partnership or other agreement.
  S 8. Subdivisions 2 and 3, and the opening paragraph and paragraph (g)
of  subdivision  10 of section 13-k of the workers' compensation law, as
amended by chapter 473 of the laws of  2000,  are  amended  to  read  as
follows:
  2.  An  employee  injured  under  circumstances which make such injury
compensable under this article, when care is required for an  injury  to
the  foot  which injury or resultant condition therefrom may lawfully be
treated by a duly registered and licensed podiatrist of the state of New
York, may select to treat him or her any podiatrist  authorized  by  the
chair to render podiatry care, as hereinafter provided. If the injury or
condition is one which is without the limits prescribed by the education
law  for  podiatry  care  and treatment, or the injuries involved affect
other parts of the body in addition to the  foot,  the  said  podiatrist
must  so  advise  the  said  injured employee and instruct him or her to
consult a physician of said employee's choice for appropriate  care  and
treatment.  Such physician shall thenceforth have overall supervision of
the treatment of said patient  including  the  future  treatment  to  be
administered  to the patient by the podiatrist. If for any reason during
the period when podiatry treatment and care is  required,  the  employee
wishes  to  transfer his or her treatment and care to another authorized
podiatrist he or she may do so, in accordance with rules  prescribed  by
the  chair,  provided  however that the employer shall be liable for the
proper fees of the original podiatrist for the care and treatment he  or
she  shall  have rendered. A podiatrist licensed and registered to prac-
tice podiatry in the state of New York who is desirous of being  author-
ized to render podiatry care under this section and/or to conduct [inde-
pendent]  ADVERSARIAL  medical examinations in accordance with paragraph
(b) of subdivision three of this section shall file an  application  for
authorization  under  this section with the podiatry practice committee.
In such application he or she shall agree to refrain  from  subsequently
treating  for  remuneration,  as  a  private patient, any person seeking
podiatry  treatment,  or  submitting  to  an  [independent]  ADVERSARIAL
medical  examination,  in connection with, or as a result of, any injury
compensable under this chapter, if he or she has been removed  from  the
list  of  podiatrists  authorized  to render podiatry care or to conduct
[independent] ADVERSARIAL medical examinations under this chapter, or if
the person seeking such treatment has been transferred from his  or  her
care  in  accordance with the provisions of this section. This agreement
shall run to the benefit of the injured person so treated  or  examined,
and  shall be available to him or her as a defense in any action by such
podiatrist for payment for treatment rendered by a podiatrist  after  he
or  she  has  been  removed  from  the list of podiatrists authorized to
render podiatry care or to  conduct  [independent]  ADVERSARIAL  medical
examinations  under this section, or after the injured person was trans-
ferred from his or her care in accordance with the  provisions  of  this
section.  The  podiatry  practice  committee  if  it deems such licensed
podiatrist duly qualified shall recommend to the chair that such  podia-
trist be authorized to render podiatry care and/or to conduct [independ-
ent] ADVERSARIAL medical examinations under this section. Such recommen-
dation  shall  be advisory to the chair only and shall not be binding or
conclusive upon him or her. The chair  shall  prepare  and  establish  a
schedule  for  the state, or schedules limited to defined localities, of
charges and fees for podiatry treatment and care, to  be  determined  in

S. 5373                             8

accordance with and to be subject to change pursuant to rules promulgat-
ed  by the chair. Before preparing such schedule for the state or sched-
ules for limited localities the chair shall request the  podiatry  prac-
tice  committee  to  submit  to  him  or  her  a report on the amount of
remuneration deemed by such committee to be fair and  adequate  for  the
types  of podiatry care to be rendered under this chapter, but consider-
ation shall be given to the view  of  other  interested  parties.    The
amounts payable by the employer for such treatment and services shall be
the fees and charges established by such schedule.
  3.  (a)  No  claim  for  podiatry care or treatment shall be valid and
enforceable as against the employer or  employee  unless  within  forty-
eight  hours  following  the  first treatment the podiatrist giving such
care or treatment furnish to the employer and directly to  the  chair  a
preliminary  notice  of  such  injury and treatment, within fifteen days
thereafter a  more  complete  report  and  subsequent  thereto  progress
reports  as requested in writing by the chair, board, employer or insur-
ance carrier, at intervals of not less than three weeks apart or at less
frequent intervals if requested on forms prescribed by the chair.    The
board  may excuse the failure to give such notices within the designated
periods when it finds it to be in the interest of justice to do so.
  (b) Upon receipt of the notice provided for by paragraph (a)  of  this
subdivision,  the  employer,  the carrier and the claimant each shall be
entitled to have the claimant examined by a qualified podiatrist author-
ized by the chair in accordance with subdivision two of this section and
section one hundred thirty-seven of this chapter, at a medical  facility
convenient  to the claimant and in the presence of the claimant's podia-
trist, and refusal by the  claimant  to  submit  to  such  [independent]
ADVERSARIAL  medical examination at such time or times as may reasonably
be necessary in the opinion of the board shall  bar  the  claimant  from
recovering  compensation  for  any  period  during  which  he or she has
refused to submit to such examination.
  (c) Where it would place an unreasonable burden upon the  employer  or
carrier  to arrange for, or for the claimant to attend, an [independent]
ADVERSARIAL medical examination by an authorized podiatrist, the employ-
er or carrier shall arrange for such examination to be  performed  by  a
qualified podiatrist in a medical facility convenient to the claimant.
  (d)  The  [independent]  ADVERSARIAL  podiatric examiner shall provide
such reports and shall submit to investigation as required by the chair.
  (e) In order to qualify as admissible medical evidence,  for  purposes
of  adjudicating  any  claim under this chapter, any report submitted to
the board by an [independent] ADVERSARIAL podiatric examiner licensed by
the state of New York shall include the following:
  (i) a signed statement certifying that the report is a full and truth-
ful representation of the [independent] ADVERSARIAL podiatric examiner's
professional opinion with respect to the claimant's condition,
  (ii) such examiner's board issued authorization number,
  (iii) the name of the individual or entity requesting the examination,
  (iv) if applicable, the registration number  as  required  by  section
thirteen-n of this article, and
  (v) such other information as the chair may require by regulation.
  The podiatry practice committee shall investigate, hear and make find-
ings  with respect to all charges as to professional or other misconduct
of any authorized podiatrist as herein provided under rules  and  proce-
dures  to  be  prescribed by the chair and shall report evidence of such
misconduct, with their findings and recommendation with respect thereto,
to the chair. The findings, decision and recommendation of such podiatry

S. 5373                             9

practice committee shall be advisory to the chair only, and shall not be
binding or conclusive upon him or her. The chair shall remove  from  the
list  of podiatrists authorized to render podiatry care under this chap-
ter  or  to  conduct  [independent]  ADVERSARIAL medical examinations in
accordance with paragraph (b) of subdivision three of this  section  the
name  of any podiatrist who he or she shall find after reasonable inves-
tigation is disqualified because such podiatrist
  (g) has directly or indirectly requested, received or participated  in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or prof-
ited  by  means of a credit or other valuable consideration as a commis-
sion, discount or gratuity in connection with the treatment,  or  [inde-
pendent]  ADVERSARIAL  medical  examination,  of a workers' compensation
claimant.   Nothing contained in  this  paragraph  shall  prohibit  such
podiatrists  who  practice  as  partners, in groups or as a professional
corporation from pooling fees and moneys received, either by  the  part-
nership,  professional  corporation  or  group by the individual members
thereof, for professional services furnished by any  individual  profes-
sional  member,  or  employee of such partnership, corporation or group,
nor shall the professionals constituting the  partnership,  corporation,
or  group  be prohibited from sharing, dividing or apportioning the fees
and moneys received by them or by the partnership, corporation or  group
in accordance with a partnership or other agreement.
  S 9. Subdivisions 2 and 3, and the opening paragraph and paragraph (g)
of  subdivision  10 of section 13-l of the workers' compensation law, as
amended by chapter 473 of the laws of  2000,  are  amended  to  read  as
follows:
  2.  An  employee  injured  under  circumstances which make such injury
compensable under this article, when care  is  required  for  an  injury
which  consists solely of a condition which may lawfully be treated by a
chiropractor as defined in section sixty-five hundred fifty-one  of  the
education  law  may  select to treat him or her, any duly registered and
licensed chiropractor of the state of New York, authorized by the  chair
to  render  chiropractic  care as hereinafter provided. If the injury or
condition is one which is outside the limits prescribed by the education
law for chiropractic care and treatment, the said chiropractor  must  so
advise  the  said  injured employee and instruct him or her to consult a
physician of said employee's choice for appropriate care and  treatment.
Such  physician  shall  thenceforth have supervision of the treatment of
said condition including the future treatment to be administered to  the
patient  by  the chiropractor. A chiropractor licensed and registered to
practice chiropractic in the state of New York, who is desirous of being
authorized to render chiropractic care  under  this  section  and/or  to
conduct  [independent]  ADVERSARIAL  medical  examinations in accordance
with paragraph (b) of subdivision three of this section  shall  file  an
application  for  authorization under this section with the chiropractic
practice committee. In such application he or she shall agree to refrain
from subsequently treating for remuneration, as a private  patient,  any
person seeking chiropractic treatment, or submitting to an [independent]
ADVERSARIAL  medical examination, in connection with, or as a result of,
any injury compensable under this chapter, if he or she has been removed
from the list of chiropractors authorized to render chiropractic care or
to conduct [independent] ADVERSARIAL  medical  examinations  under  this
chapter,  or  if  the person seeking such treatment has been transferred
from his or her care in accordance with the provisions of this  section.
This  agreement shall run to the benefit of the injured person so treat-

S. 5373                            10

ed, or examined, and shall be available to him or her as  a  defense  in
any  action  by such chiropractor for payment rendered by a chiropractor
after he or she has been removed from the list of chiropractors  author-
ized to render chiropractic care or to conduct [independent] ADVERSARIAL
medical examinations under this section, or after the injured person was
transferred  from  his  or her care in accordance with the provisions of
this section. The chiropractic  practice  committee  if  it  deems  such
licensed  chiropractor  duly qualified shall recommend to the chair that
such be authorized to render chiropractic care and/or to conduct  [inde-
pendent]  ADVERSARIAL  medical  examinations  under  this  section. Such
recommendations shall be advisory to the chair only  and  shall  not  be
binding  or  conclusive  upon  him  or  her. The chair shall prepare and
establish a schedule for the state,  or  schedules  limited  to  defined
localities  of  charges and fees for chiropractic treatment and care, to
be determined in accordance with and to be subject to change pursuant to
rules promulgated by the chair.  Before preparing such schedule for  the
state  or  schedules  for limited localities the chair shall request the
chiropractic practice committee to submit to him or her a report on  the
amount  of remuneration deemed by such committee to be fair and adequate
for the types of chiropractic care to be rendered  under  this  chapter,
but  consideration  shall  be  given  to  the  view  of other interested
parties, the amounts payable by the  employer  for  such  treatment  and
services shall be the fees and charges established by such schedule.
  3.  (a) No claim for chiropractic care or treatment shall be valid and
enforceable as against the employer or employees  unless  within  forty-
eight  hours  following the first treatment the chiropractor giving such
care or treatment furnishes to the employer and directly to the chair  a
preliminary notice of such injury and treatment, and within fifteen days
thereafter  a  more  complete  report  and  subsequent  thereto progress
reports as requested in writing by the chair, board, employer or  insur-
ance carrier, at intervals of not less than three weeks apart or at less
frequent  intervals  if  requested on forms prescribed by the chair. The
board may excuse the failure to give such notices within the  designated
periods when it finds it to be in the interest of justice to do so.
  (b)  Upon  receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each  shall  be
entitled  to  have  the  claimant  examined  by a qualified chiropractor
authorized by the chair in  accordance  with  subdivision  two  of  this
section  and  section  one  hundred  thirty-seven  of  this chapter at a
medical facility convenient to the claimant and in the presence  of  the
claimant's  chiropractor,  and refusal by the claimant to submit to such
[independent] ADVERSARIAL medical examination at such time or  times  as
may  reasonably  be  necessary in the opinion of the board shall bar the
claimant from recovering compensation, for any period during which he or
she has refused to submit to such examination.
  (c) Where it would place an unreasonable burden upon the  employer  or
carrier  to arrange for, or for the claimant to attend, an [independent]
ADVERSARIAL medical  examination  by  an  authorized  chiropractor,  the
employer  or  carrier shall arrange for such examination to be performed
by a qualified chiropractor in a  medical  facility  convenient  to  the
claimant.
  (d)  The [independent] ADVERSARIAL chiropractic examiner shall provide
such reports and shall submit to investigation as required by the chair.
  (e) In order to  qualify  as  admissible  chiropractic  evidence,  for
purposes  of  adjudicating  any  claim  under  this  chapter, any report

S. 5373                            11

submitted to the board by an [independent] ADVERSARIAL medical  examiner
licensed by the state of New York shall include the following:
  (i) a signed statement certifying that the report is a full and truth-
ful representation of the [independent] ADVERSARIAL chiropractic examin-
er's professional opinion with respect to the claimant's condition,
  (ii) such examiner's board issued authorization number,
  (iii) the name of the individual or entity requesting the examination,
  (iv)  if  applicable,  the  registration number as required by section
thirteen-n of this article, and
  (v) such other information as the chair may require by regulation.
  The chiropractic practice committee shall investigate, hear  and  make
findings with respect to all charges as to professional or other miscon-
duct  of  any authorized chiropractor as herein provided under rules and
procedure to be prescribed by the chair and  shall  report  evidence  of
such  misconduct,  with  their findings and recommendations with respect
thereto, to the chair. The findings, decision and recommendation of such
chiropractic practice committee shall be advisory to the chair only, and
shall not be binding or conclusive upon him  or  her.  The  chair  shall
remove  from the list of chiropractors authorized to render chiropractic
care under this chapter or to conduct [independent] ADVERSARIAL  medical
examinations  in  accordance  with paragraph (b) of subdivision three of
this section the name of any chiropractor who he or she shall find after
reasonable investigation is disqualified because such chiropractor,
  (g) has directly or indirectly requested, received or participated  in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or prof-
ited  by  means  of  a  credit  or otherwise valuable consideration as a
commission, discount or gratuity, in connection with the  treatment,  or
[independent]  ADVERSARIAL  medical  examination,  of a workers' compen-
sation claimant.   Nothing contained in this  paragraph  shall  prohibit
such  chiropractors  who practice as partners, in groups or as a profes-
sional corporation, or as a university faculty practice corporation from
pooling fees and moneys received, either  by  the  partnership,  profes-
sional  corporation, university faculty practice corporation or group by
the individual members thereof, for professional services  furnished  by
any  individual  professional  member,  or employee of such partnership,
corporation or group, nor shall the professionals constituting the part-
nership, corporation, or group be prohibited from sharing,  dividing  or
apportioning the fees and moneys received by them or by the partnership,
corporation  or  group  in accordance with a partnership or other agree-
ment.
  S 10. Subdivisions 3 and 4 and the opening paragraph of subdivision 11
of section 13-m of the workers' compensation law, as amended by  chapter
473 of the laws of 2000, are amended to read as follows:
  3.  A  psychologist, licensed and registered to practice psychology in
the state of New York, who is desirous of  being  authorized  to  render
psychological  care  under  this section and/or to conduct [independent]
ADVERSARIAL medical examinations in accordance  with  paragraph  (b)  of
subdivision  four of this section shall file an application for authori-
zation under this section with the psychology  practice  committee.  The
applicant shall agree to refrain from subsequently treating for remuner-
ation, as a private patient, any person seeking psychological treatment,
or  submitting  to  an [independent] ADVERSARIAL medical examination, in
connection with, or as a result of, any injury  compensable  under  this
chapter,  if  he  or she has been removed from the list of psychologists
authorized to render psychological care under this chapter. This  agree-

S. 5373                            12

ment  shall  run  to  the  benefit of the injured person so treated, and
shall be available as a defense in any action by such  psychologist  for
payment  for treatment rendered by such psychologist after being removed
from  the  list of psychologists authorized to render psychological care
or to conduct [independent] ADVERSARIAL medical examinations under  this
section.  The  psychology  practice  committee if it deems such licensed
psychologist duly qualified shall  recommend  to  the  chair  that  such
person  be  authorized  to  render  psychological care and/or to conduct
[independent] ADVERSARIAL medical examinations under this section.  Such
recommendations  shall  be  only  advisory to the chair and shall not be
binding or conclusive. The chair shall prepare and establish a  schedule
for  the state or schedules limited to defined localities of charges and
fees for psychological treatment and care, to be determined  in  accord-
ance  with and be subject to change pursuant to rules promulgated by the
chair. Before preparing such schedule for the  state  or  schedules  for
limited  localities  the  chair  shall  request  the psychology practice
committee to submit to such chair a report on the amount of remuneration
deemed by such committee to be  fair  and  adequate  for  the  types  of
psychological  care to be rendered under this chapter, but consideration
shall be given to the view of  other  interested  parties.  The  amounts
payable  by  the  employer  for such treatment and services shall be the
fees and charges established by such schedule.
  4. (a) No claim for psychological care or treatment shall be valid and
enforceable as against the employer or employees  unless  within  forty-
eight  hours  following the first treatment the psychologist giving such
care or treatment furnishes to the employer and directly to the chair  a
preliminary notice of such injury and treatment, and within fifteen days
thereafter  a  more  complete  report  and  subsequent  thereto progress
reports as requested in writing by the chair, board, employer or  insur-
ance carrier, at intervals of not less than three weeks apart or at less
frequent  intervals  if  requested on forms prescribed by the chair. The
board may excuse the failure to give such notices within the  designated
periods when it finds it to be in the interest of justice to do so.
  (b)  Upon  receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each  shall  be
entitled  to  have  the  claimant  examined by a qualified psychologist,
authorized by the chair in accordance with  subdivision  three  of  this
section  and  section  one  hundred  thirty-seven  of this chapter, at a
medical facility convenient to the claimant and in the presence  of  the
claimant's  psychologist,  and refusal by the claimant to submit to such
[independent] ADVERSARIAL medical examination at such time or  times  as
may  reasonably  be  necessary in the opinion of the board shall bar the
claimant from recovering compensation, for any period during which he or
she has refused to submit to such examination.
  (c) Where it would place an unreasonable burden upon the  employer  or
carrier  to arrange for, or for the claimant to attend, an [independent]
ADVERSARIAL medical  examination  by  an  authorized  psychologist,  the
employer  or  carrier shall arrange for such examination to be performed
by a qualified psychologist in a  medical  facility  convenient  to  the
claimant.
  (d)  The  [independent] ADVERSARIAL psychological examiner licensed by
the state of New York shall provide such reports  and  shall  submit  to
investigation as required by the chair.
  (e)  In  order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any  report  submitted  to

S. 5373                            13

the   board  by  an  [independent]  ADVERSARIAL  psychological  examiner
licensed by the state of New York shall include the following:
  (i) a signed statement certifying that the report is a full and truth-
ful  representation of the [independent] ADVERSARIAL psychological exam-
iner's professional opinion with respect to the claimant's condition,
  (ii) such examiner's board issued authorization number,
  (iii) the name of the individual or entity requesting the examination,
  (iv) if applicable, the registration number  as  required  by  section
thirteen-n of this article, and
  (v) such other information as the chair may require by regulation.
  The  psychology  practice  committee  shall investigate, hear and make
findings with respect to all charges as to professional or other miscon-
duct of any authorized psychologist as herein provided under  rules  and
procedures  to  be  prescribed by the chair and shall report evidence of
such misconduct, with their findings and  recommendations  with  respect
thereto, to the chair. The findings, decision and recommendation of such
psychology  practice  committee shall be advisory to the chair only, and
shall not be binding or conclusive upon him  or  her.  The  chair  shall
remove from the list of psychologists authorized to render psychological
care  under this chapter or to conduct [independent] ADVERSARIAL medical
examinations in accordance with paragraph (b)  of  subdivision  four  of
this section the name of any psychologist who he or she shall find after
reasonable investigation is disqualified because such psychologist:
  S 11. Section 13-n of the workers' compensation law, as added by chap-
ter  473  of the laws of 2000 and subdivision 3 as added by chapter 6 of
the laws of 2007, is amended to read as follows:
  S 13-n. Mandatory registration of entities which  derive  income  from
[independent]  ADVERSARIAL  medical  examinations.  1.  Any entity which
derives  income  from  [independent]  ADVERSARIAL  medical  examinations
performed  in  accordance  with  subdivision four of section thirteen-a,
subdivision three of section thirteen-k, subdivision  three  of  section
thirteen-1  and  subdivision four of section thirteen-m of this article,
whether by employing or contracting with [independent] ADVERSARIAL exam-
iners to conduct such [independent] ADVERSARIAL medical examinations  or
by  acting as a referral service or otherwise facilitating such examina-
tions, shall register with the chair by filing a statement of  registra-
tion  containing such information prescribed by the chair in regulation.
A fee may be imposed in accordance with regulations promulgated  by  the
chair. Any such fees collected shall be used for the purpose of adminis-
tering this section.
  2.  The  chair  shall  assign a registration number to the entity upon
registration. If an entity operates under more than one name, or in more
than one location, the chair may assign a series of registration numbers
which would differentiate each such sub-entity. In order to  qualify  as
admissible  medical  evidence,  for  purposes  of adjudicating any claim
under this chapter, any report submitted to the board by  an  [independ-
ent]  ADVERSARIAL medical examiner who is employed by, or has contracted
with, an entity as described in subdivision one of this section for  the
purpose  of  performing  [independent] ADVERSARIAL medical examinations,
must include the registration number of such entity.
  3. The chair, upon finding that an entity  that  derives  income  from
[independent] ADVERSARIAL medical examinations has materially altered an
[independent]  ADVERSARIAL  medical examination report, or caused such a
report to be materially altered, may revoke  the  registration  of  such
entity,  impose  a  penalty not exceeding ten thousand dollars and refer
the matter to the attorney general for prosecution.

S. 5373                            14

  S 12. Section 137 of the workers' compensation law, as added by  chap-
ter 473 of the laws of 2000, is amended to read as follows:
  S  137.  [Independent] ADVERSARIAL medical examinations. 1. (a) A copy
of each report of [independent] ADVERSARIAL medical examination shall be
submitted by the practitioner on the same day and in the same manner  to
the  board, the insurance carrier, the claimant's attending physician or
other attending practitioner,  the  claimant's  representative  and  the
claimant.
  (b)  If  a  practitioner  who  has  performed or will be performing an
[independent] ADVERSARIAL medical examination of a claimant  receives  a
request for information regarding the claimant, including faxed or elec-
tronically transmitted requests, the practitioner shall submit a copy of
the  request  for information to the board within ten days of receipt of
the request. Nothing in this subdivision shall be construed to  abrogate
the attorney-client privilege.
  (c)  Copies  of  all responses to such requests for information as are
described in paragraph (b) of this subdivision, including all  materials
which  are provided in response to such a request, shall be submitted by
the responding practitioner to the board within ten days  of  submission
of  the  response to the requestor. Nothing in this subdivision shall be
construed to abrogate the attorney-client privilege.
  2. In any open case where an award has been directed by the board  for
temporary or permanent disability at an established rate of compensation
and  there  is a direction by the board for continuation of payments, or
any closed case where an award for compensation has been made for perma-
nent total or permanent partial disability, a report of an [independent]
ADVERSARIAL medical examination shall not be the basis for suspending or
reducing payments unless and until the  rules  and  regulations  of  the
board  regarding suspending or reducing payments have been met and there
is a  determination  by  the  board  finding  that  such  suspension  or
reduction is justified.
  3.  (a)  Only a New York state licensed and board certified physician,
surgeon, podiatrist or any other person authorized to examine or  evalu-
ate  injury  or  illness  by  the board shall perform such [independent]
ADVERSARIAL medical examination. Where a claimant resides out of state a
practitioner qualified to examine or evaluate injury or illness  by  the
board shall perform such [independent] ADVERSARIAL medical examination.
  (b)  Any practitioner performing the [independent] ADVERSARIAL medical
examinations shall be paid according to  the  fee  schedule  established
pursuant to section thirteen of this chapter.
  4.   All  [independent]  ADVERSARIAL  medical  examinations  shall  be
performed in medical facilities suitable for such exam, with due  regard
and respect for the privacy and dignity of the injured worker as well as
the  access and safety of the claimant. Such facilities must be provided
in a convenient and accessible location  within  a  reasonable  distance
from the claimant's residence.
  5.   All  [independent]  ADVERSARIAL  medical  examinations  shall  be
performed by a practitioner competent to evaluate or examine the  injury
or disease from which the injured worker suffers. Such examination shall
be  performed  by  a practitioner who is licensed and board certified in
the state of New York or any other person authorized to examine or eval-
uate injury or illness by the board.
  6. No practitioner examining or evaluating a claimant under this chap-
ter nor any supervising authority or proprietor nor insurance carrier or
employer may cause, direct or encourage a  report  to  be  submitted  as
evidence  in  workers'  compensation  claim  adjudication  which differs

S. 5373                            15

substantially from the professional opinion of the examining practition-
er. Such an action shall be considered within the  jurisdiction  of  the
workers'  compensation  fraud inspector general and may be referred as a
fraudulent practice.
  7.  The  claimant shall receive notice by mail of the scheduled [inde-
pendent] ADVERSARIAL medical examination at least  seven  business  days
prior  to such examination. Such notice shall advise the claimant if the
practitioner intends to record or video tape the examination, and  shall
advise the claimant of their right to video tape or otherwise record the
examination. Claimants shall be advised of their right to be accompanied
during the exam by an individual or individuals of their choosing.
  8.  [Independent]  ADVERSARIAL medical examinations shall be performed
during regular business hours  except  with  the  consent  and  for  the
convenience of the claimant. Claimants subject to such examination shall
be  notified  at the time of the exam in writing of the available travel
reimbursement under law.
  9. A practitioner is not eligible to perform an  [independent]  ADVER-
SARIAL medical examination of a claimant if the practitioner has treated
or  examined  the claimant for the condition for which the [independent]
ADVERSARIAL medical examination is being requested or if another  member
of  a  preferred provider organization or managed care provider to which
the practitioner belongs has treated or examined the  claimant  for  the
condition for which the [independent] ADVERSARIAL medical examination is
being requested.
  10.  The  ability of a claimant to appear for an exam or hearing shall
not be dispositive in the determination of disability, extent  of  disa-
bility or eligibility for benefits.
  11.  At  the time of the [independent] ADVERSARIAL medical examination
the claimant shall receive a  notice  from  the  entity  performing  the
[independent]  ADVERSARIAL medical examination, on a form which shall be
approved and promulgated by the chair,  stating  the  rights  and  obli-
gations  of the claimant and the practitioner with respect to such exam,
and such notice shall include but not be limited to a statement that the
claimant's receipt of benefits could be denied, terminated,  or  reduced
as a result of a determination which may be based upon the medical eval-
uation  made  after  such [independent] ADVERSARIAL medical examination,
and the claimant's rights to challenge or appeal such a determination.
  S 13. Subdivisions 1, 2 and 3 of section 50-h of the general municipal
law, subdivision 1 as amended by chapter 24 of the laws of 1988,  subdi-
vision 2 as amended by chapter 254 of the laws of 1990 and subdivision 3
as  added  by  chapter  393  of the laws of 1958, are amended to read as
follows:
  1. Wherever a notice of claim is filed against a city,  county,  town,
village,  fire  district,  ambulance  district  [or], school district OR
PUBLIC AUTHORITY the city, county, town, village, fire  district,  ambu-
lance  district [or], school district OR PUBLIC AUTHORITY shall have the
right to demand an examination of the claimant relative  to  the  occur-
rence  and  extent  of  the injuries or damages for which claim is made,
which examination shall be upon oral questions unless the parties other-
wise stipulate and may include [a physical] AN ADVERSARIAL MEDICAL exam-
ination of the claimant by a duly qualified physician. If the  party  to
be  examined  desires, he or she is entitled to have such examination in
the presence of his or her own personal physician and such  relative  or
other  person  as he or she may elect.  THE PERSON SUBJECT TO THE ADVER-
SARIAL MEDICAL EXAMINATION SHALL NOT BE REQUIRED TO  PRODUCE  ANY  DOCU-
MENTS  OR  SUPPLY  ANY WRITTEN ANSWERS TO QUESTIONS PUT TO HIM OR HER AT

S. 5373                            16

SUCH ADVERSARIAL MEDICAL EXAMINATION. Exercise of the right to demand  a
physical  examination  of the claimant as provided in this section shall
in no way affect the right  of  a  city,  county,  town,  village,  fire
district,  ambulance  district [or], school district OR PUBLIC AUTHORITY
in a subsequent action brought upon the claim to demand [a physical]  AN
ADVERSARIAL  MEDICAL examination of the plaintiff pursuant to statute or
court rule.
  2. The demand for examination as provided in subdivision one  of  this
section  shall be made by the chief executive officer or, where there is
no such officer, by the chairman of the  governing  body  of  the  city,
county,  town,  village,  fire  district [or], school district OR PUBLIC
AUTHORITY or by such officer, agent or employee as may be designated  by
him  OR  HER for that purpose.  The demand shall be in writing and shall
be served personally or by registered or certified mail upon the  claim-
ant  unless the claimant is represented by an attorney, when it shall be
served personally or by mail upon his OR HER attorney. The demand  shall
give  reasonable  notice  of  the examination. It shall state the person
before whom the examination is to be held, the time, place  and  subject
matter  thereof  and, if [a physical] AN ADVERSARIAL MEDICAL examination
is to be required, it shall so state. If the  place  of  examination  is
located  outside  the  municipality against which the claim is made, the
claimant may demand, within ten days of such service, that the  examina-
tion be held at a location within such municipality. Such location shall
be  determined  by  the  municipality.    If [a physical] AN ADVERSARIAL
MEDICAL examination is to be required and there is no appropriate  place
for  such an examination within the municipality, such examination shall
be given at a location as close to such municipality as practicable.  No
demand  for  examination shall be effective against the claimant for any
purpose unless it shall be served as provided in this subdivision within
ninety days from the date of filing of the notice of claim.
  3. In any examination required pursuant  to  the  provisions  of  this
section  the claimant shall have the right to be represented by counsel.
The examination shall be conducted upon oath or affirmation. The officer
or person before whom the examination is had shall take down or cause to
be taken down every question and answer unless the parties consent  that
only the substance of the testimony be inserted. The testimony so taken,
together  with  the report of the examining physician where [a physical]
AN ADVERSARIAL MEDICAL examination is  required,  shall  constitute  the
record  of the examination.  The transcript of the record of an examina-
tion shall not be subject to or available for public inspection,  except
upon  court  order  upon good cause shown, but shall be furnished to the
claimant or his OR HER attorney upon request.
  S 14. Subdivisions 1, 2 and 3 of section 17-a of the court  of  claims
act, as added by chapter 189 of the laws of 1990, are amended to read as
follows:
  1.  Wherever  a  notice  of  intention  to file a claim is served, the
defendant shall have the right to demand an examination of the  claimant
relative  to  the  occurrence  and extent of the injuries or damages for
which claim is made, which examination  shall  be  upon  oral  questions
unless  the  parties otherwise stipulate and may include [a physical] AN
ADVERSARIAL MEDICAL examination of the  claimant  by  a  duly  qualified
physician. If the party to be examined desires, he or she is entitled to
have  such [physical] AN ADVERSARIAL MEDICAL examination in the presence
of his or her own personal physician and such relative or  other  person
as  he or she may elect. Exercise of the right to demand [a physical] AN
ADVERSARIAL MEDICAL examination of the  claimant  as  provided  in  this

S. 5373                            17

section  shall in no way affect the right of a defendant in a subsequent
claim brought upon the notice of intention to file a claim to demand  [a
physical] AN ADVERSARIAL MEDICAL examination of the claimant pursuant to
statute or court rule.
  2.  The  demand for examination as provided in subdivision one of this
section shall be made by the attorney for the defendant or by such offi-
cer, agent or employee as may be designated by him for that purpose. The
demand shall be in writing and shall be served personally or  by  regis-
tered or certified mail upon the claimant unless the claimant is repres-
ented by an attorney, when it shall be served personally or by mail upon
his  or  her  attorney.  The  demand shall give reasonable notice of the
examination. It shall state the person before whom the examination is to
be held, the time, place and subject matter thereof and, if [a physical]
AN ADVERSARIAL MEDICAL examination is to be required, it shall so state.
No demand for examination shall be effective against  the  claimant  for
any  purpose  unless  it shall be served as provided in this subdivision
within ninety days from the date of service of the notice  of  intention
to file a claim.
  3.  In  any  examination  required  pursuant to the provisions of this
section the claimant shall have the right to be represented by  counsel.
The examination shall be conducted upon oath or affirmation. The officer
or  person  before whom the examination is held shall take down or cause
to be taken down every question and answer unless  the  parties  consent
that  only  the substance of the testimony be inserted. The testimony so
taken, together with the report of  the  examining  physician  where  [a
physical]  AN ADVERSARIAL MEDICAL examination is required, shall consti-
tute the record of the examination.  The transcript of the record of  an
examination,  including  a copy of the report of the examining physician
shall not be subject to or available for public inspection, except  upon
court  order upon good cause shown, but shall be furnished to the claim-
ant or his or her attorney upon request.
  S 15. This act shall take effect immediately and shall  apply  to  all
currently  pending actions and proceedings, and to proceedings commenced
subsequent to such date.

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