Assembly Bill A6711

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

                                  6711

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             March 25, 2011
                               ___________

Introduced  by  M.  of  A.  KOLB,  REILICH,  BURLING, BARCLAY, HAWLEY --
  Multi-Sponsored by -- M. of A. CALHOUN, COOK, CORWIN, CROUCH,  DUPREY,
  GIGLIO, JORDAN, OAKS, SAYWARD -- read once and referred to the Commit-
  tee on Labor

AN  ACT to amend the workers' compensation law, in relation to permanent
  partial disability, establishing objective medical guidelines, a bene-
  fit evaluation commission and pharmaceutical fee schedule, and provid-
  ing for penalties  for  workers'  compensation  fraud;  and  repealing
  certain provisions of such law relating thereto

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

  Section 1.  Section 13 of the workers' compensation law is amended  by
adding a new subdivision (j) to read as follows:
  (J)(1)  WHEN A CLAIMANT SUBMITS A CLAIM TO THE EMPLOYER OR ITS CARRIER
FOR PAYMENT OF PRESCRIBED MEDICINE OR FOR REIMBURSEMENT OF THE  COST  OF
PRESCRIBED MEDICINE WHICH THE EMPLOYER IS REQUIRED TO PROVIDE UNDER THIS
SECTION,  THE EMPLOYER OR CARRIER SHALL PAY THE AMOUNT PRESCRIBED BY THE
FEE SCHEDULE ADOPTED UNDER SECTION THIRTEEN-O OF THIS ARTICLE, OR IF THE
PRESCRIBED MEDICINE IS NOT INCLUDED ON THE  CURRENT  FEE  SCHEDULE,  THE
USUAL  AND CUSTOMARY CHARGES FOR SUCH PRESCRIBED MEDICINE, WITHIN FORTY-
FIVE DAYS OF RECEIPT OF THE CLAIM, UNLESS THE LIABILITY OF THE  EMPLOYER
TO PAY FOR THE PRESCRIBED MEDICINE IS NOT REASONABLY CLEAR.
  (2)  WHERE  THE LIABILITY OF THE EMPLOYER OR CARRIER FOR THE CLAIM FOR
PAYMENT  OF  PRESCRIBED  MEDICINE  OR  REIMBURSEMENT  FOR   PAYMENT   OF
PRESCRIBED  MEDICINE  IS  NOT  REASONABLY CLEAR, THE EMPLOYER OR CARRIER
SHALL PAY ANY UNDISPUTED PORTION OF THE CLAIM IN  ACCORDANCE  WITH  THIS
SECTION  AND  NOTIFY  THE  CLAIMANT IN WRITING WITHIN FORTY-FIVE DAYS OF
RECEIPT OF THE CLAIM:
  (A) THAT THE CLAIM IS NOT BEING PAID AND EXPLAINING  THE  REASONS  FOR
NONPAYMENT; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05205-01-1

              

A. 6711                             2

  (B)  TO REQUEST ALL ADDITIONAL INFORMATION REASONABLY NEEDED TO DETER-
MINE THE EMPLOYER'S OR CARRIER'S LIABILITY FOR THE CLAIM.
  UPON  RECEIPT OF THE INFORMATION REQUESTED IN SUBPARAGRAPH (B) OF THIS
PARAGRAPH, THE EMPLOYER OR CARRIER SHALL COMPLY WITH  PARAGRAPH  ONE  OF
THIS SUBDIVISION.
  (3) EACH CLAIM FOR PAYMENT OF PRESCRIBED MEDICINE OR REIMBURSEMENT FOR
PAYMENT  OF  PRESCRIBED  MEDICINE THAT IS PROCESSED IN VIOLATION OF THIS
SECTION SHALL CONSTITUTE A SEPARATE VIOLATION. IN ADDITION TO THE  OTHER
PENALTIES  PROVIDED  IN THIS CHAPTER, ANY EMPLOYER OR CARRIER THAT FAILS
TO REIMBURSE THE CLAIMANT AS REQUIRED IN THIS SECTION SHALL BE OBLIGATED
TO PAY TO THE CLAIMANT THE AMOUNT PRESCRIBED ON THE FEE SCHEDULE ADOPTED
UNDER SECTION THIRTEEN-O OF THIS ARTICLE, OR IF THE PRESCRIBED  MEDICINE
IS  NOT  INCLUDED  ON  THE CURRENT FEE SCHEDULE, THE USUAL AND CUSTOMARY
CHARGES FOR THE PRESCRIBED MEDICINE PLUS SIMPLE INTEREST AT THE RATE SET
FORTH IN SECTION FIVE THOUSAND FOUR OF THE CIVIL PRACTICE LAW AND RULES.
  (4) NOTHING IN THIS SUBDIVISION SHALL PROHIBIT EMPLOYERS  OR  CARRIERS
FROM  AGREEING TO OR ARRANGING FOR DIRECT BILLING BY THE PHARMACY TO THE
EMPLOYER OR CARRIER FOR THE COST OF PRESCRIBED MEDICINE,  IN  ORDER  FOR
CLAIMANTS TO MORE PROMPTLY RECEIVE PRESCRIBED MEDICINE FOR WHICH EMPLOY-
ERS AND CARRIERS ARE LIABLE UNDER THIS SECTION.
  S  2.    Section  13-a  of the workers' compensation law is amended by
adding a new subdivision 5-a to read as follows:
  (5-A) THE BOARD MAY, AT ITS DISCRETION, PRESCRIBE REGULATIONS TO  PRE-
AUTHORIZE   CERTAIN   SPECIALIST   CONSULTATIONS,  SURGICAL  OPERATIONS,
PHYSIOTHERAPEUTIC OR OCCUPATIONAL THERAPY PROCEDURES, X-RAY EXAMINATIONS
OR SPECIAL DIAGNOSTIC LABORATORY TESTS FOR SPECIFIED TYPES  OF  INJURIES
THAT COST OVER ONE THOUSAND DOLLARS.
  S  3.  Subdivision 3 of section 15 of the workers' compensation law is
REPEALED and a new subdivision 3 is added to read as follows:
  3. PERMANENT PARTIAL DISABILITY. A. IN CASE OF DISABILITY  PARTIAL  IN
CHARACTER  BUT  PERMANENT IN QUALITY, THAT OCCURS ON OR AFTER THE ESTAB-
LISHMENT OF OBJECTIVE MEDICAL GUIDELINES PURSUANT TO  SECTION  FIFTEEN-A
OF  THIS  ARTICLE,  THE  COMPENSATION  SHALL  BE EXCLUSIVELY BASED ON AN
IMPAIRMENT RATING ESTABLISHED PURSUANT  TO  SECTION  FIFTEEN-A  OF  THIS
ARTICLE.
  B.  COMPENSATION  UNDER  THIS SUBDIVISION SHALL BE PAID AT THE RATE OF
SIXTY-SIX AND TWO-THIRDS PER CENTUM  OF  THE  INJURED  WORKER'S  AVERAGE
WEEKLY  WAGES, NOT TO EXCEED THE MAXIMUM WEEKLY BENEFIT FOR PERMANENT OR
TEMPORARY PARTIAL DISABILITY OR FOR PERMANENT OR TEMPORARY  TOTAL  DISA-
BILITY.
  C.  A  CLAIMANT'S  ENTITLEMENT  TO COMPENSATION UNDER THIS SUBDIVISION
BEGINS THE DAY AFTER THE CLAIMANT REACHES  MAXIMUM  MEDICAL  IMPROVEMENT
AND  CONTINUES  UNTIL  THE  EARLIER  OF:  (1) THE EXPIRATION OF A PERIOD
COMPUTED AT THE RATE OF THREE WEEKS FOR EACH PERCENTAGE POINT OF IMPAIR-
MENT; OR (2) THE DEATH OF THE CLAIMANT.
  D. SUPPLEMENTAL BENEFITS SHALL BE PAYABLE TO AN INJURED WORKER WHO, AT
THE EXPIRATION OF THE PERIOD IN SUBPARAGRAPH ONE OF PARAGRAPH C OF  THIS
SUBDIVISION,  HAS  APPLIED  TO  THE  BOARD  FOR  RE-EVALUATION,  HAS NOT
RETURNED TO WORK OR HAS  RETURNED  TO  WORK  EARNING  LESS  THAN  THIRTY
PERCENT  OF THE CLAIMANT'S AVERAGE WEEKLY WAGE AS A RESULT OF THE CLAIM-
ANT'S IMPAIRMENT, AND WHO HAS IN GOOD FAITH ATTEMPTED TO OBTAIN  EMPLOY-
MENT  COMMENSURATE WITH THE CLAIMANT'S PHYSICAL ABILITY TO WORK. SUPPLE-
MENTAL BENEFITS SHALL BE PAYABLE FOR A PERIOD NOT TO EXCEED FIVE HUNDRED
WEEKS INCLUDING ANY WEEKS OF TEMPORARY OR PERMANENT DISABILITY  BENEFITS
PAYABLE  ON  ACCOUNT  OF SUCH IMPAIRMENT. SUPPLEMENTAL BENEFITS SHALL BE
PAYABLE AT SIXTY-SIX AND TWO-THIRDS PERCENT OF  THE  DIFFERENCE  BETWEEN

A. 6711                             3

THE  INJURED  WORKER'S AVERAGE WEEKLY WAGES BEFORE AND AFTER INJURY, NOT
TO EXCEED THE RATE PROVIDED IN PARAGRAPH B OF THIS SUBDIVISION.
  E.  IN THE EVENT THE CLAIM IS CONTROVERTED PURSUANT TO SECTION TWENTY-
FIVE OF THIS ARTICLE AND THE CONTROVERSY IS RESOLVED  IN  FAVOR  OF  THE
CLAIMANT,  THE  CLAIMANT  SHALL  RECEIVE UP TO NINETY DAYS OF ADDITIONAL
BENEFITS BEYOND THE PERIOD PRESCRIBED IN PARAGRAPH D OF THIS SUBDIVISION
AND NOT TO EXCEED THE PERIOD DURING WHICH SUCH CLAIM WAS CONTROVERTED.
  S 4. Paragraph (a) of subdivision 6 of  section  15  of  the  workers'
compensation  law,  as  amended  by  chapter 689 of the laws of 2007, is
amended to read as follows:
  (a) Compensation for permanent or temporary total disability due to an
accident or disablement resulting  from  an  occupational  disease  that
occurs,  (1)  on or after January first, nineteen hundred seventy-eight,
shall not exceed one hundred twenty-five dollars per week,  that  occurs
(2)  on  or  after July first, nineteen hundred seventy-eight, shall not
exceed one hundred eighty dollars per week, that occurs (3) on or  after
January  first,  nineteen  hundred  seventy-nine,  shall  not exceed two
hundred fifteen dollars per week, that  occurs  (4)  on  or  after  July
first,  nineteen  hundred  eighty-three,  shall  not  exceed two hundred
fifty-five dollars per week, that occurs (5) on  or  after  July  first,
nineteen  hundred eighty-four, shall not exceed two hundred seventy-five
dollars per week, that occurs (6)  on  or  after  July  first,  nineteen
hundred  eighty-five,  shall  not exceed three hundred dollars per week,
that occurs (7) on or after July first, nineteen hundred  ninety,  shall
not  exceed  three  hundred  forty  dollars per week; and in the case of
temporary total disability shall not be less  than  thirty  dollars  per
week  and  in  the  case of permanent total disability shall not be less
than twenty dollars per week except that if the employee's wages at  the
time  of  injury are less than thirty or twenty dollars per week respec-
tively, he or she shall receive his or her full weekly wages.    Compen-
sation  for permanent or temporary partial disability due to an accident
or disablement resulting from an occupational disease that occurs (1) on
or after January first, nineteen hundred seventy-eight, shall not exceed
one hundred five dollars per week, that occurs  (2)  on  or  after  July
first, nineteen hundred eighty-three, shall not exceed one hundred twen-
ty-five  dollars per week, that occurs (3) on or after July first, nine-
teen hundred eighty-four,  shall  not  exceed  one  hundred  thirty-five
dollars  per  week,  that  occurs  (4)  on or after July first, nineteen
hundred eighty-five, shall not exceed  one  hundred  fifty  dollars  per
week,  that  occurs (5) on or after July first, nineteen hundred ninety,
shall not exceed two hundred eighty dollars per week; nor be  less  than
twenty dollars per week; except that if the employee's wages at the time
of injury are less than twenty dollars per week, he or she shall receive
his  or  her  full  weekly  wages.  In  no event shall compensation when
combined with decreased earnings or earning capacity exceed  the  amount
of  wages  which  the  employee  was  receiving  at  the time the injury
occurred. Compensation for permanent or temporary partial disability, or
for permanent or temporary total disability due to an accident or  disa-
blement  resulting  from  an  occupational disease that occurs (1) on or
after July first, nineteen hundred ninety-one and prior to  July  first,
nineteen  hundred  ninety-two,  shall  not  exceed  three  hundred fifty
dollars per week; (2) on or after July first, nineteen  hundred  ninety-
two  AND  PRIOR  TO THE ESTABLISHING OF OBJECTIVE MEDICAL GUIDELINES FOR
THE DETERMINATION OF PERCENTAGE  OF  PERMANENT  IMPAIRMENT  PURSUANT  TO
SECTION FIFTEEN-A OF THIS ARTICLE, shall not exceed four hundred dollars
per  week;  nor  be  less than forty dollars per week except that if the

A. 6711                             4

employee's wages at the time of injury are less than forty  dollars  per
week, the employee shall receive his or her full wages. Compensation for
permanent or temporary partial disability, or for permanent or temporary
total  disability  due  to  an accident or disablement resulting from an
occupational disease that occurs (1) on or after July first,  two  thou-
sand  seven  shall  not  exceed five hundred dollars per week, (2) on or
after July first, two thousand eight shall not exceed five hundred fifty
dollars per week, (3) on or after July first, two  thousand  nine  shall
not exceed six hundred dollars per week, and (4) on or after July first,
two  thousand  ten,  and on or after July first of each succeeding year,
shall not exceed two-thirds of the New York state  average  weekly  wage
for  the  year  in  which  it is reported. Compensation for permanent or
temporary partial disability, or for permanent or temporary total  disa-
bility  due to an accident or disablement resulting from an occupational
disease that occurs on or after July first, two thousand seven shall not
be less than one hundred dollars per week except that if the  employee's
wages  at the time of injury are less than one hundred dollars per week,
the employee shall receive his or her full  wages.  In  no  event  shall
compensation  when  combined with decreased earnings or earning capacity
exceed the amount of wages the employee was receiving at  the  time  the
injury  occurred.  Compensation for permanent or temporary partial disa-
bility, or for permanent or temporary total disability due to  an  acci-
dent  or  disablement  resulting  from an occupational disease or injury
that occurred as a result of World Trade Center rescue  activity  by  an
employee of a private voluntary hospital, who passed a physical examina-
tion  upon  employment as a rescue worker that failed to reveal evidence
of a condition that was the proximate cause of  disablement  or  occupa-
tional  disease  or  injury, shall not exceed three-quarters of a claim-
ant's wage on September eleventh, two thousand one. In  no  event  shall
compensation  when  combined with decreased earnings or earning capacity
exceed the amount of wages the employee was receiving on September elev-
enth, two thousand one.
  S 5. Subparagraph 4 of paragraph (h) of subdivision 8 of section 15 of
the workers' compensation law, as amended by section 1  of  part  QQ  of
chapter 56 of the laws of 2009, is amended to read as follows:
  (4)  As  soon  as  practicable  after  May  first in the year nineteen
hundred fifty-eight, and annually  thereafter  as  soon  as  practicable
after  January  first  in  each  succeeding year, the chair of the board
shall assess upon and collect from all self-insurers, except group self-
insurers, the state insurance fund, all  insurance  carriers  and  group
self-insurers, (A) a sum equal to one hundred [fifty] FIFTEEN per centum
of  the total disbursements made from the special disability fund during
the preceding calendar year (not including  any  disbursements  made  on
account  of  anticipated liabilities or waiver agreements funded by bond
proceeds and related earnings), less the amount of  the  net  assets  in
such  fund  as of December thirty-first of said preceding calendar year,
and (B) a sum sufficient to cover debt  service,  and  associated  costs
(the  "debt  service assessment") to be paid during the calendar year by
the dormitory authority, as calculated in accordance  with  subparagraph
five of this paragraph. Such assessments shall be allocated to (i) self-
insurers  except  group self-insurers and the state insurance fund based
upon the proportion that the total compensation  payments  made  by  all
self-insurers  except  group  self-insurers and the state insurance fund
bore to the total compensation payments made by all self-insurers except
group self-insurers, the state insurance fund,  all  insurance  carriers
and  group self-insurers, (ii) insurance carriers based upon the propor-

A. 6711                             5

tion that the total compensation payments made by all insurance carriers
bore to the total compensation  payments  by  all  self-insurers  except
group self-insurers, the state insurance fund and all insurance carriers
and  group  self-insurers during the fiscal year which ended within said
preceding calendar year, and (iii) group self-insurers  based  upon  the
proportion  that the total compensation payments made by all group self-
insurers bore to the total compensation payments made by all self-insur-
ers, the state insurance fund and  all  insurance  carriers  during  the
fiscal  year which ended within said preceding calendar year.  Insurance
carriers and self-insurers shall be  liable  for  all  such  assessments
regardless  of  the  date  on which they came into existence, or whether
they have made any claim for reimbursement from the  special  disability
fund.  The  portion  of such sum allocated to self-insurers except group
self-insurers and the state insurance fund that shall be collected  from
each  self-insurer  except  a group self-insurer and the state insurance
fund shall be a sum equal to the proportion  of  the  amount  which  the
total  compensation  payments  of  each such self-insurer except a group
self-insurer or the state insurance fund bore to the total  compensation
payments  made  by  all self-insurers except group self-insurers and the
state insurance fund during the fiscal  year  which  ended  within  said
preceding  calendar year. The portion of such sum allocated to insurance
carriers that shall be collected from each insurance carrier shall be  a
sum  equal  to  that  proportion  of the amount which the total standard
premium by each such insurance carrier bore to the total standard premi-
um reported by all insurance carriers during  the  calendar  year  which
ended  within  said preceding fiscal year. The portion of such sum allo-
cated to group self-insurers that shall be  collected  from  each  group
self-insurer shall be a sum equal to that proportion of the amount which
the  pure  premium  calculation for each such group self-insurer bore to
the total pure premium calculation for all group self-insurers  for  the
calendar  year  which  ended within the preceding state fiscal year. The
payments from the debt service assessment, unless otherwise set forth in
the special disability fund  financing  agreement,  are  hereby  pledged
therefor  and  shall  be  deemed the first monies received on account of
assessments in each year. For the purposes of this paragraph,  "standard
premium"  shall  mean  the  premium  as defined for the purposes of this
assessment by the superintendent of insurance, in consultation with  the
chair  of  the  board  and  the  workers' compensation rating board. For
purposes of this paragraph "pure premium calculation" means the New York
state annual payroll as of December thirty-first of the  preceding  year
by  class  code  for each employer member of a group self-insurer multi-
plied by the applicable loss cost for each class code as  determined  by
the  workers'  compensation  rating  board in effect on December thirty-
first of the preceding year, and for a group or individual  self-insurer
who  has ceased to self-insure shall be based on payroll at the time the
group or individual self-insurer ceased  to  self-insure  reduced  by  a
factor  reflecting  the  reduction  in  the  group  or  individual self-
insurer's self-insurance liabilities since ceasing  to  self-insure.  An
employer  who  has ceased to be a self-insurer or a group that ceases to
be licensed as a group self-insurer shall continue to be liable for  any
assessments  into said fund on account of any compensation payments made
by him or her on his or her account during such  fiscal  year,  and  the
security fund, created under the provisions of section one hundred seven
of  this chapter, shall, in the event of the insolvency of any insurance
company, be liable for any assessments that would have been made against
such company except for its insolvency. No assessment shall  be  payable

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from  the  aggregate trust fund, created under the provisions of section
twenty-seven of this article, but such fund shall continue to be  liable
for  all  compensation that shall be payable under any award or order of
the  board,  the  commuted  value of which has been paid into such fund.
Such assessments when collected shall be deposited with the commissioner
of taxation and finance for the benefit of such fund.  Unless  otherwise
provided,  such assessments, shall not constitute an element of loss for
the purpose of establishing rates for compensation insurance  but  shall
for  the purpose of collection be treated as separate costs by carriers.
All insurance carriers and the state insurance fund, shall collect  such
assessments,  from  their  policyholders  through  a  surcharge based on
premiums in accordance with rules set forth  by  the  superintendent  of
insurance in consultation with the New York workers' compensation rating
board  and the chair of the board. Such surcharge shall be considered as
part of premium for purposes prescribed by law including, but not limit-
ed to, computing premium tax, reporting to the superintendent of  insur-
ance  pursuant  to section ninety-nine of this chapter and section three
hundred seven of  the  insurance  law,  determining  the  limitation  of
expenditures for the administration of the state insurance fund pursuant
to  section  eighty-eight  of  this  chapter  and the cancellation by an
insurance carrier, including the state insurance fund, of a  policy  for
non-payment of premium. The provisions of this paragraph shall not apply
with  respect to policies containing coverage pursuant to subsection (j)
of section three thousand four  hundred  twenty  of  the  insurance  law
relating  to  every  policy  providing  comprehensive personal liability
insurance on a one, two, three or four family  owner-occupied  dwelling.
The  state  insurance  fund shall, notify its insureds that such assess-
ments, shall be, for the purpose  of  recoupment,  treated  as  separate
costs, respectively for the purpose of premiums billed on or after Octo-
ber first, nineteen hundred ninety-four.
  For  the purposes of this paragraph, except as otherwise provided: the
term "insurance carrier" shall include only stock  corporations,  mutual
corporations and reciprocal insurers authorized to transact the business
of  workers' compensation insurance in this state; the term "self-insur-
er" shall include any employer or group of employers  permitted  to  pay
compensation directly under the provisions of subdivision three, three-a
or four of section fifty of this chapter.
  The  board  is hereby authorized to issue credits or refunds as neces-
sary, in the case of overpayments made to the fund. An insurance carrier
that knowingly underreports premiums for the purposes  of  this  section
shall be guilty of a class E felony.
  S  6.  The  workers'  compensation  law  is  amended by adding two new
sections 15-a and 15-b to read as follows:
  S 15-A. OBJECTIVE MEDICAL GUIDELINES. 1. THE CHAIR SHALL WITHIN THIRTY
DAYS OF THE EFFECTIVE DATE OF THIS SECTION APPOINT A COMMITTEE  OF  FIVE
EXPERT  MEDICAL  CONSULTANTS TO DEVELOP OBJECTIVE MEDICAL GUIDELINES FOR
THE DETERMINATION OF PERCENTAGE OF PERMANENT IMPAIRMENT. THE  PERCENTAGE
OF  PERMANENT  IMPAIRMENT  SHALL  BE KNOWN AS THE IMPAIRMENT RATING. THE
COMMITTEE SHALL WITHIN ONE  HUNDRED  TWENTY  DAYS  OF  SUCH  COMMITTEE'S
APPOINTMENT RECOMMEND OBJECTIVE MEDICAL GUIDELINES FOR THE DETERMINATION
OF  PERCENTAGE  OF  PERMANENT  IMPAIRMENT  TO THE CHAIR. THE CHAIR SHALL
ADOPT OBJECTIVE MEDICAL GUIDELINES FOR THE DETERMINATION  OF  PERCENTAGE
OF  PERMANENT  IMPAIRMENT  BASED ON THE RECOMMENDATIONS OF THE COMMITTEE
WITHIN THIRTY DAYS OF RECEIPT OF SUCH RECOMMENDATIONS.
  2. ONCE OBJECTIVE MEDICAL GUIDELINES ARE ADOPTED, THE CHAIR  SHALL  BE
GRANTED  THE  AUTHORITY, WHEN HE OR SHE SEES FIT, TO APPOINT A COMMITTEE

A. 6711                             7

PURSUANT TO SUBDIVISION ONE OF THIS SECTION TO MAKE  RECOMMENDATIONS  TO
AMEND THE OBJECTIVE MEDICAL GUIDELINES FOR THE DETERMINATION OF PERCENT-
AGE OF PERMANENT IMPAIRMENT.
  S  15-B.  BENEFIT  EVALUATION  COMMISSION.  1. A WORKERS' COMPENSATION
BENEFIT EVALUATION COMMISSION SHALL BE APPOINTED BEFORE  JANUARY  FIRST,
TWO THOUSAND FOURTEEN TO EXAMINE, EVALUATE AND REPORT ON THE SUFFICIENCY
OF  BENEFIT  LEVELS IN REGARD TO INFLATION AND THE OVERALL COST OF WORK-
ERS' COMPENSATION FOR EMPLOYERS.
  2. THE COMMISSION CREATED  BY  THIS  SECTION  SHALL  CONSIST  OF  FIVE
MEMBERS AS FOLLOWS: (I) THE CHAIR OF THE WORKERS' COMPENSATION BOARD, OR
HIS OR HER DESIGNEE, WHO SHALL ACT AS CHAIR OF SUCH COMMISSION; (II) ONE
MEMBER  APPOINTED  BY  THE  TEMPORARY PRESIDENT OF THE SENATE; (III) ONE
MEMBER APPOINTED BY  THE  SPEAKER  OF  THE  ASSEMBLY;  (IV)  ONE  MEMBER
APPOINTED  BY  THE  MINORITY  LEADER  OF  THE SENATE; AND (V) ONE MEMBER
APPOINTED BY THE MINORITY LEADER OF THE ASSEMBLY.
  3. SUCH COMMISSION MAY EMPLOY AND AT PLEASURE REMOVE SUCH PERSONNEL AS
IT MAY DEEM NECESSARY FOR THE PERFORMANCE OF ITS FUNCTIONS AND FIX THEIR
COMPENSATION WITHIN THE AMOUNTS MADE AVAILABLE THEREFOR.
  4. THE COMMISSION MAY MEET WITHIN AND WITHOUT THE  STATE,  SHALL  HOLD
PUBLIC  HEARINGS, AND SHALL HAVE ALL THE POWERS OF A LEGISLATIVE COMMIT-
TEE PURSUANT TO THE LEGISLATIVE LAW.
  5. THE MEMBERS OF THE COMMISSION SHALL  RECEIVE  NO  COMPENSATION  FOR
THEIR SERVICES, BUT SHALL BE ALLOWED THEIR ACTUAL AND NECESSARY EXPENSES
INCURRED IN THE PERFORMANCE OF THEIR DUTIES PURSUANT TO THIS SECTION.
  6. TO THE MAXIMUM EXTENT FEASIBLE, THE COMMISSION SHALL BE ENTITLED TO
REQUEST AND RECEIVE, AND SHALL UTILIZE AND BE PROVIDED WITH SUCH FACILI-
TIES,  RESOURCES  AND  DATA  OF  ANY COURT, DEPARTMENT, DIVISION, BOARD,
BUREAU, COMMISSION OR AGENCY OF THE STATE OR ANY  POLITICAL  SUBDIVISION
THEREOF  AS  IT  MAY REASONABLY REQUEST TO PROPERLY CARRY OUT ITS POWERS
AND DUTIES PURSUANT TO THIS SECTION.
  7. THE COMMISSION SHALL MAKE A REPORT TO THE GOVERNOR, TEMPORARY PRES-
IDENT OF THE SENATE, SPEAKER OF THE ASSEMBLY,  MINORITY  LEADER  OF  THE
SENATE  AND MINORITY LEADER OF THE ASSEMBLY OF ITS FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS ON OR BEFORE OCTOBER FIRST, TWO THOUSAND FIFTEEN  ON
WHETHER  COST SAVINGS MEASURES ESTABLISHED BY THE COMMISSION PURSUANT TO
THIS SECTION WOULD  ALLOW  THE  MAXIMUM  BENEFIT  RATE  TO  INCREASE  TO
TWO-THIRDS  THE  STATE'S AVERAGE WEEKLY WAGE ON JANUARY FIRST, TWO THOU-
SAND SIXTEEN, WITHOUT INCREASING COSTS TO EMPLOYERS.  SUCH REPORT  SHALL
BE  MADE  AVAILABLE TO THE PUBLIC AND INCLUDE SUCH LEGISLATIVE PROPOSALS
AS SHALL BE NECESSARY TO IMPLEMENT THE COMMISSION'S RECOMMENDATIONS.
  S 7. Paragraph (f) of subdivision 1 of  section  25  of  the  workers'
compensation  law,  as  amended  by  chapter 635 of the laws of 1996, is
amended to read as follows:
  (f) Whenever compensation is withheld  solely  because  a  controversy
exists on the question of liability as between insurance carriers, sure-
ty companies, the special disability fund, the special fund for reopened
cases,  or  an employer, the board [may] SHALL WITHIN NINETY DAYS direct
that any carrier, surety  company,  the  special  disability  fund,  the
special  fund  for reopened cases shall immediately pay compensation and
bills for medical care to the extent payable in accordance with sections
thirteen-g, thirteen-k, thirteen-l and thirteen-m of this chapter, pend-
ing determination of such issue. Any such payment or payments shall  not
be  deemed an admission against interest by the carrier, surety company,
special disability fund or the special fund for  reopened  cases.  After
final  determination,  the  parties  shall make the necessary and proper
reimbursement including the payment  of  simple  interest  at  the  rate

A. 6711                             8

established  by section five thousand four of the civil practice law and
rules in conformity with such determination.
  S 8. The third undesignated paragraph of subdivision 3 of section 25-a
of the workers' compensation law, as amended by chapter 6 of the laws of
2007, is amended to read as follows:
  Such assessment and the payments made into said fund shall not consti-
tute  an element of loss for the purpose of establishing rates for work-
ers' compensation insurance as provided in the insurance law  but  shall
for  the purpose of recoupment be treated as separate costs by carriers.
Carriers shall assess such costs on their  policyholders  in  accordance
with rules set forth by the New York workers' compensation rating board,
as  approved  by the superintendent of insurance.  THE SUPERINTENDENT OF
INSURANCE SHALL PROMULGATE RULES AND REGULATIONS REGARDING HOW  THE  NEW
YORK  COMPENSATION  INSURANCE  RATING  BOARD  COLLECTS AND RELEASES, FOR
PUBLIC INFORMATION, DATA ON PREMIUMS AND LOSSES.
  S 9. Section 50 of the workers' compensation law is amended by  adding
a new subdivision 3-f to read as follows:
  3-F.  THE STATE INSURANCE FUND AND ANY OTHER INSURER THAT ISSUES POLI-
CIES OF WORKERS' COMPENSATION INSURANCE MAY REQUIRE NOMINAL  CO-PAYMENTS
TO  BE  PAID  BY  THE EMPLOYEE OF UP TO FIVE DOLLARS FOR PHARMACEUTICALS
PRESCRIBED UNDER A WORKERS' COMPENSATION POLICY.  IN  ADDITION,  PREMIUM
REDUCTIONS,  IN  ACCORDANCE WITH METHODOLOGY APPROVED BY THE SUPERINTEN-
DENT OF INSURANCE SHALL BE APPLIED TO ANY POLICY WRITTEN WHICH  REQUIRES
SUCH PHARMACEUTICAL CO-PAYMENTS. SUCH PREMIUM REDUCTIONS SHALL BE DETER-
MINED  BEFORE  THE  APPLICATION  OF  ANY EXPERIENCE MODIFICATION PREMIUM
SURCHARGE OR PREMIUM DISCOUNT.
  S 10. Subdivisions 1, 2 and 3 of section 114 of the  workers'  compen-
sation  law, as added by chapter 635 of the laws of 1996, are amended to
read as follows:
  1. Any person who, knowingly and  with  intent  to  defraud  presents,
causes  to  be  presented,  or prepares with knowledge or belief that it
will be presented to or by an insurer or purported insurer, or any agent
thereof, any written statement as part of, or in support of, an applica-
tion for the issuance of or  the  rating  of  an  insurance  policy  for
compensation insurance, or a claim for payment or other benefit pursuant
to  a  compensation policy which he or she knows to: (i) contain a false
statement or representation concerning any  fact  material  thereto;  or
(ii)  omits  any  fact  material  thereto,  shall  be guilty of WORKERS'
COMPENSATION FRAUD IN THE FOURTH DEGREE WHEN HE OR SHE COMMITS A FRAUDU-
LENT WORKERS' COMPENSATION ACT AND THEREBY TAKES  OR  OBTAINS  BENEFITS,
AND  WHEN  THE  VALUE  OF THE WORKERS' COMPENSATION BENEFITS EXCEEDS ONE
THOUSAND DOLLARS. WORKERS' COMPENSATION FRAUD IN THE FOURTH DEGREE IS  a
class E felony.
  A  PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE THIRD DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION BENEFITS EXCEEDS THREE THOUSAND  DOLLARS.  WORKERS'  COMPENSATION
FRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
  A PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE SECOND DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION  BENEFITS  EXCEEDS  FIFTY THOUSAND DOLLARS. WORKERS' COMPENSATION
FRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
  A PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE FIRST  DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-

A. 6711                             9

SATION  BENEFITS  EXCEEDS  ONE  MILLION DOLLARS.   WORKERS' COMPENSATION
FRAUD IN THE FIRST DEGREE IS A CLASS B FELONY.
  Upon  conviction,  the  court  in  addition  to  any  other authorized
sentence, may order forfeiture of all rights to compensation or payments
of any benefit, and may also require restitution of any amount  received
as a result of a violation of this subdivision.
  2. An employer or carrier, or any employee, agent, or person acting on
behalf  of an employer or carrier, who knowingly makes a false statement
or representation as to a material fact  in  the  course  of  reporting,
investigation  of, or adjusting a claim for any benefit or payment under
this chapter for the purpose of avoiding provision of  such  payment  or
benefit  shall  be  guilty  of WORKERS' COMPENSATION FRAUD IN THE FOURTH
DEGREE WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND
THEREBY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE  OF  THE  WORKERS'
COMPENSATION  BENEFITS  EXCEEDS  ONE  THOUSAND DOLLARS. WORKERS' COMPEN-
SATION FRAUD IN THE FOURTH DEGREE IS a class E felony.
  A PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE THIRD  DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION  BENEFITS  EXCEEDS  THREE THOUSAND DOLLARS. WORKERS' COMPENSATION
FRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
  A PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE SECOND DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION BENEFITS EXCEEDS FIFTY THOUSAND  DOLLARS.  WORKERS'  COMPENSATION
FRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
  A  PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE FIRST DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION BENEFITS EXCEEDS ONE MILLION DOLLARS. WORKERS' COMPENSATION FRAUD
IN THE FIRST DEGREE IS A CLASS B FELONY.
  3. A person who knowingly makes a false statement or representation as
to a material fact for the purpose of obtaining, maintaining or renewing
insurance under this chapter, whether for himself or herself or for  any
other person or entity or for the purpose of evading the requirements of
section  fifty  of this chapter shall be guilty of WORKERS' COMPENSATION
FRAUD IN THE FOURTH DEGREE WHEN HE OR SHE COMMITS A FRAUDULENT  WORKERS'
COMPENSATION  ACT  AND  THEREBY  TAKES OR OBTAINS BENEFITS, AND WHEN THE
VALUE  OF  THE  WORKERS'  COMPENSATION  BENEFITS  EXCEEDS  ONE  THOUSAND
DOLLARS.  WORKERS'  COMPENSATION FRAUD IN THE FOURTH DEGREE IS a class E
felony.
  A PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE THIRD  DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION  BENEFITS  EXCEEDS  THREE THOUSAND DOLLARS. WORKERS' COMPENSATION
FRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
  A PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE SECOND DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION BENEFITS EXCEEDS FIFTY THOUSAND  DOLLARS.  WORKERS'  COMPENSATION
FRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
  A  PERSON IS GUILTY OF WORKERS' COMPENSATION FRAUD IN THE FIRST DEGREE
WHEN HE OR SHE COMMITS A FRAUDULENT WORKERS' COMPENSATION ACT AND THERE-
BY TAKES OR OBTAINS BENEFITS, AND WHEN THE VALUE OF THE WORKERS' COMPEN-
SATION BENEFITS EXCEEDS ONE MILLION DOLLARS. WORKERS' COMPENSATION FRAUD
IN THE FIRST DEGREE IS A CLASS B FELONY.

A. 6711                            10

  In addition to any other remedy, the carrier providing insurance shall
be entitled to restitution of any  amount  obtained  or  withheld  as  a
result of a violation of this subdivision.
  S 11. The workers' compensation law is amended by adding a new section
114-d to read as follows:
  S  114-D. WORKERS' COMPENSATION LAW HOTLINE. THE CHAIRMAN SHALL ESTAB-
LISH A TOLL-FREE TELEPHONE HOTLINE TO ANSWER QUESTIONS AND PROVIDE GUID-
ANCE TO BUSINESSES AND INDIVIDUALS ABOUT THE  STATE'S  WORKERS'  COMPEN-
SATION LAW AND FRAUD. SUCH TOLL-FREE HOTLINE SHALL BE STAFFED BY PERSONS
TRAINED  IN  THE LAWS, RULES, AND REGULATIONS APPLICABLE TO THE WORKERS'
COMPENSATION LAW.
  S 12. Subdivision 3 of section 136 of the workers' compensation law is
amended by adding a new paragraph (b-1) to read as follows:
  (B-1) TO PROSECUTE VIOLATIONS OF LAWS, RULES AND REGULATIONS  PERTAIN-
ING  TO THE WORKERS' COMPENSATION SYSTEM INCLUDING WORKERS' COMPENSATION
FRAUD;
  S 13. This act shall take effect immediately; provided, however,  that
the provisions of section ten of this act shall take effect on the thir-
tieth day after it shall have become a law.