S T A T E O F N E W Y O R K
________________________________________________________________________
5361
2011-2012 Regular Sessions
I N A S S E M B L Y
February 16, 2011
___________
Introduced by M. of A. HOYT -- read once and referred to the Committee
on Labor
AN ACT to amend the workers' compensation law, in relation to authoriz-
ing certain care and treatment to injured employees
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (a) of section 13 of the workers' compensation
law, as amended by chapter 6 of the laws of 2007, is amended to read as
follows:
(a) The employer shall promptly provide for an injured employee such
medical, dental, surgical, optometric or other attendance or treatment,
nurse and hospital service, medicine, optometric services, crutches,
eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
devices, functional assistive and adaptive devices and apparatus for
such period as the nature of the injury or the process of recovery may
require. The employer shall be liable for the payment of the expenses of
medical, dental, surgical, optometric or other attendance or treatment,
nurse and hospital service, medicine, optometric services, crutches,
eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
devices, functional assistive and adaptive devices and apparatus, as
well as artificial members of the body or other devices or appliances
necessary in the first instance to replace, support or relieve a portion
or part of the body resulting from and necessitated by the injury of an
employee, for such period as the nature of the injury or the process of
recovery may require, and the employer shall also be liable for replace-
ments or repairs of such artificial members of the body or such other
devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
ic devices, functional assistive and adaptive devices or appliances
necessitated by ordinary wear or loss or damage to a prosthesis, with or
without bodily injury to the employee. Damage to or loss of a prosthetic
device shall be deemed an injury except that no disability benefits
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09319-01-1
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shall be payable with respect to such injury under section fifteen of
this article. Such a replacement or repair of artificial members of the
body or such other devices, eye-glasses, false teeth, artificial eyes,
orthotics, prosthetic devices, functional assistive and adaptive devices
or appliances or the providing of medical treatment and care as defined
herein shall not constitute the payment of compensation under section
twenty-five-a of this article. All fees and other charges for such
treatment and services shall be limited to such charges as prevail in
the same community for similar treatment of injured persons of a like
standard of living.
The chair shall prepare and establish a schedule for the state, or
schedules limited to defined localities, of charges and fees for such
medical treatment and care, and including all medical, dental, surgical,
optometric or other attendance or treatment, nurse and hospital service,
medicine, optometric services, crutches, eye-glasses, false teeth, arti-
ficial eyes, orthotics, prosthetic devices, functional assistive and
adaptive devices and apparatus 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 president of the medical society of the state of New
York and the president of the New York state osteopathic medical society
to submit to him or her a report on the amount of remuneration deemed by
such society to be fair and adequate for the types of medical care to be
rendered under this chapter, but consideration shall be given to the
view of other interested parties. In the case of physical therapy fees
schedules the chair shall request the president of a recognized profes-
sional association representing physical therapists in the state of New
York to submit to him or her a report on the amount of remuneration
deemed by such association to be fair and reasonable for the type of
physical therapy services rendered under this chapter, but consideration
shall be given to the views of other interested parties. The chair
shall also prepare and establish a schedule for the state, or schedules
limited to defined localities, of charges and fees for outpatient hospi-
tal services not covered under the medical fee schedule previously
referred to in this subdivision, 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 president of the hospital associ-
ation of New York state to submit to him or her a report on the amount
of remuneration deemed by such association to be fair and adequate for
the types of hospital outpatient care to be rendered under this chapter,
but consideration shall be given to the views of other interested
parties. In the case of occupational therapy fees schedules the chair
shall request the president of a recognized professional association
representing occupational therapists in the state of New York to submit
to him or her a report on the amount of remuneration deemed by such
association to be fair and reasonable for the type of occupational ther-
apy services rendered under this chapter, but consideration shall be
given to the views of other interested parties. IN THE CASE OF MASSAGE
THERAPY FEE SCHEDULES THE CHAIR SHALL REQUEST THE PRESIDENT OF A RECOG-
NIZED PROFESSIONAL ASSOCIATION REPRESENTING LICENSED MASSAGE THERAPISTS
IN THE STATE OF NEW YORK TO SUBMIT TO HIM OR HER A REPORT ON THE AMOUNT
OF REMUNERATION DEEMED BY SUCH ASSOCIATION TO BE FAIR AND REASONABLE FOR
THE TYPE OF OCCUPATIONAL THERAPY SERVICES RENDERED UNDER THIS CHAPTER,
BUT CONSIDERATION SHALL BE GIVEN TO THE VIEWS OF OTHER INTERESTED
PARTIES. The amounts payable by the employer for such treatment and
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services shall be the fees and charges established by such schedule.
Nothing in this schedule, however, shall prevent voluntary payment of
amounts higher or lower than the fees and charges fixed therein, but no
physician rendering medical treatment or care, and no physical, LICENSED
MASSAGE or occupational therapist rendering their respective physical,
MASSAGE or occupational therapy services may receive payment in any
higher amount unless such increased amount has been authorized by the
employer, or by decision as provided in section thirteen-g of this arti-
cle. Nothing in this section shall be construed as preventing the
employment of a duly authorized physician on a salary basis by an
authorized compensation medical bureau or laboratory.
S 2. Subdivisions 1 and 2 of section 13-g of the workers' compensation
law, subdivision 1 as amended by chapter 674 of the laws of 1994 and
subdivision 2 as amended by chapter 649 of the laws of 1985, are amended
to read as follows:
(1) Within forty-five days after a bill has been rendered to the
employer by the hospital, physician or self-employed physical, LICENSED
MASSAGE or occupational therapist who has rendered treatment pursuant to
a referral from the injured employee's authorized physician or author-
ized podiatrist for treatment to the injured employee, such employer
must pay the bill or notify the hospital, physician or self-employed
physical, LICENSED MASSAGE 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 or self-employed physical, LICENSED MASSAGE or occupational
therapist within such forty-five day period that payment is not being
made, the hospital, physician, self-employed physical therapist OR
SELF-EMPLOYED LICENSED MASSAGE 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 estab-
lished fee schedules for any such 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 employ-
er, 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 agree as to the value of medical
aid rendered under this chapter, such value shall be decided by arbi-
tration if requested by the hospital, physician or self-employed phys-
ical, LICENSED MASSAGE 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, physical, LICENSED MASSAGE or occupational thera-
pist 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, physical, LICENSED MASSAGE or occupa-
tional therapist, in accordance with the rules and regulations promul-
gated by the board. Interest shall be calculated from the forty-fifth
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day after the bill was rendered or from the thirtieth day 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 employ-
er, whichever is later, in accordance with rules promulgated by the
chair.
(2) If the parties fail to agree as to the value of medical aid
rendered under this chapter, such value shall be decided by an arbi-
tration committee consisting of one physician designated by the presi-
dent 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 [chairman] CHAIR of the workers' compensation
board. The majority decision of any such committee shall be conclusive
upon the parties as to the value of the services rendered. If the physi-
cian 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 [chairman] CHAIR of
the workers' compensation board. Where the value of physical therapy
services is at issue 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 [chairman] CHAIR of the workers'
compensation board provided however, that the [chairman] 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 commit-
tee so comprised. In all other cases where the value of physical therapy
services is at issue, the arbitration committee shall be similarly
selected and identical in composition, provided that the physical thera-
pist member shall serve without remuneration, and provided further that
in the event a physical 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. WHERE THE VALUE OF
MASSAGE THERAPY SERVICES IS AT ISSUE THE ARBITRATION COMMITTEE SHALL
CONSIST OF A MEMBER IN GOOD STANDING OF A RECOGNIZED PROFESSIONAL ASSO-
CIATION REPRESENTING LICENSED MASSAGE THERAPISTS IN THE STATE OF NEW
YORK APPOINTED BY THE PRESIDENT OF SUCH ORGANIZATION, A PHYSICIAN DESIG-
NATED 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 MASSAGE 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 MASSAGE
THERAPY SERVICES IS AT ISSUE, THE ARBITRATION COMMITTEE SHALL BE SIMI-
LARLY SELECTED AND IDENTICAL IN COMPOSITION, PROVIDED THAT THE LICENSED
MASSAGE THERAPIST MEMBER SHALL SERVE WITHOUT REMUNERATION, AND PROVIDED
FURTHER THAT IN THE EVENT A LICENSED MASSAGE 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.
Where the value of occupational therapy services is at issue the arbi-
tration committee shall consist of a member in good standing of a recog-
nized professional association representing occupational therapists in
the state of New York appointed by the president of such organization; a
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physician designated by the employer or carrier and a physician desig-
nated by the [chairman] CHAIR of the workers' compensation board
provided, however, that the [chairman] 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, the arbitration committee shall be similarly
selected and identical in composition, provided that the occupational
therapist member shall serve without 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.
S 3. This act shall take effect immediately.