§ 13-A — Selection of authorized physician by employee

New York § 13-A

• Jurisdiction: New York
• Law WKC: Workers' Compensation
• Art. 2: Compensation

Text

§ 13-a. Selection of authorized physician by employee. (1) An injured\nemployee may, when care is required, select to treat him or her any\nphysician authorized by the chair to render medical care, as hereafter\nprovided. If for any reason during the period when medical treatment and\ncare is required, the employee wishes to transfer his or her treatment\nand care to another authorized physician, he or she may do so, in\naccordance with rules prescribed by the chair. In such instance the\nremuneration of the physician whose services are being dispensed with\nshall be limited to the value of treatment rendered at fees as\nestablished in the schedule for his or her location, unless payment in\nhigher amounts has been approved as authorized in section thirteen,\nparagraph a. If a claimant shall receive treatment in any hospital or\nother institution operated in whole or in part by the state of New York,\nthe employer shall be liable for food, clothing and maintenance\nfurnished by the hospital or other institution to such employee. If the\nemployee is unable due to the nature of the injury to select such\nauthorized physician and the emergency nature of the injury requires\nimmediate medical treatment and care, or if he or she does not desire to\nselect a physician, and in writing so advises the employer, the employer\nshall promptly provide him or her with the necessary medical care,\nprovided however, that nothing herein contained shall operate to prevent\nsuch employee, when subsequently able to do so, from selecting for\ncontinuance of any medical treatment or care required, any physician\nauthorized by the chair to render medical care as hereinafter provided.\n (2) The chairman shall prescribe the form of a notice informing\nemployees of their privilege under this chapter, and such notice shall\nbe posted and maintained by the employer in a conspicuous place or\nplaces in and about his place or places of business.\n (3) The employer shall have the right to transfer the care of an\ninjured employee from the attending physician, whether chosen originally\nby the employee or by the employer, to another authorized physician (1)\nif the interest of the injured employee necessitates the transfer or (2)\nif the physician has not been authorized to treat injured employees\nunder this act or (3) if he has not been authorized under this act to\ntreat the particular injury or condition as provided by section\nthirteen-b (2). An authorized physician from whom the case has been\ntransferred shall have the right of appeal to an arbitration committee\nas provided in subdivision two of section thirteen-g and if said\narbitration committee finds that the transfer was not authorized by this\nsection, said employer shall pay to the physician a sum equal to the\ntotal fee earned by the physician to whom the care of the injured\nemployee has been transferred, or such proportion of said fee as the\narbitration committee shall deem adequate.\n (4) (a) No claim for medical or surgical treatment shall be valid and\nenforceable, as against such employer, or employee, unless within\nforty-eight hours following the first treatment the physician giving\nsuch treatment furnishes to the employer and directly to the chair a\npreliminary notice of such injury and treatment, within fifteen days\nthereafter a more complete report and subsequent thereto progress\nreports if requested in writing by the chair, board, employer or\ninsurance carrier at intervals of not less than three weeks apart or at\nless frequent intervals if requested on forms prescribed by the chair.\nThe board may excuse failure to give such notices within the designated\nperiods when it finds it to be in the interest of justice to do so.\n (b) Upon receipt of the notice provided for by paragraph (a) of this\nsubdivision, the employer, the carrier, and the claimant each shall be\nentitled to have the claimant examined by a physician authorized by the\nchair in accordance with sections thirteen-b and one hundred\nthirty-seven of this chapter, at a medical facility convenient to the\nclaimant and in the presence of the claimant's physician, and refusal by\nthe claimant to submit to such independent medical examination at such\ntime or times as may reasonably be necessary in the opinion of the\nboard, shall bar the claimant from recovering compensation for any\nperiod during which he or she has refused to submit to such examination.\nNo hospital shall be required to produce the records of any claimant\nwithout receiving its customary fees or charges for reproduction of such\nrecords.\n (c) Where it would place an unreasonable burden upon the employer or\ncarrier to arrange for, or for the claimant to attend, an independent\nmedical examination by an authorized physician, the employer or carrier\nshall arrange for such examination to be performed by a qualified\nphysician in a medical facility convenient to the claimant.\n (d) The independent medical examiner shall provide such reports and\nshall submit to investigation as required by the chair.\n (e) In order to qualify as admissible medical evidence, for purposes\nof adjudicating any claim under this chapter, any report submitted to\nthe board by an independent medical examiner licensed by the state of\nNew York shall include the following:\n (i) a signed statement certifying that the report is a full and\ntruthful representation of the independent medical examiner's\nprofessional opinion with respect to the claimant's condition:\n (ii) such examiner's board issued authorization number;\n (iii) the name of the individual or entity requesting the examination;\n (iv) if applicable, the registration number as required by section\nthirteen-n of this article; and\n (v) such other information as the chair may require by regulation.\n Any report by an independent medical examiner who is not authorized,\nand who performs an independent medical examination in accordance with\nparagraph (c) of this subdivision, which is to be used as medical\nevidence under this chapter, shall include in the report such\ninformation as the chair may require by regulation.\n (5) No claim for specialist consultations, surgical operations,\nphysiotherapeutic or occupational therapy procedures, x-ray examinations\nor special diagnostic laboratory tests costing more than one thousand\ndollars shall be valid and enforceable, as against such employer, unless\nsuch special services shall have been authorized by the employer or by\nthe board, or unless such authorization has been unreasonably withheld,\nor withheld for a period of more than thirty calendar days from receipt\nof a request for authorization, or unless such special services are\nrequired in an emergency, provided, however, that the basis for a denial\nof such authorization by the employer must be based on a conflicting\nsecond opinion rendered by a physician authorized by the board. The\nboard, with the approval of the superintendent of financial services,\nshall issue and maintain a list of pre-authorized procedures under this\nsection. Such list of pre-authorized procedures shall be issued and\nmaintained for the purpose of expediting authorization of treatment of\ninjured workers. Such list of pre-authorized procedures shall not\nprohibit varied treatment when the treating provider demonstrates the\nappropriateness and medical necessity of such treatment.\n (6) (a) Any interference by any person with the selection by an\ninjured employee of an authorized physician to treat him, except when\nthe selection is made pursuant to article ten-A of this chapter, and the\nimproper influencing or attempt by any person improperly to influence\nthe medical opinion of any physician who has treated or examined an\ninjured employee, shall be a misdemeanor; provided, however, that it\nshall not constitute interference or improper influence if, in the\npresence of such injured employee's physician, an employer, his carrier\nor agent should recommend or provide information concerning\nrehabilitation services or the availability thereof to an injured\nemployee or his family.\n (b) Except as otherwise permitted by law, an employer, carrier, or\nthird-party administrator shall not interfere or attempt to interfere\nwith the selection by an injured employee of, or treatment by, an\nauthorized medical provider, including by directing or attempting to\ndirect that the injured employee seek treatment from a specific provider\nor type of provider selected by the employer, carrier, or third-party\nadministrator. It shall not constitute improper interference under this\nparagraph if the direction or attempt to direct the injured employee to\nreceive treatment from a specific provider or type of provider\noriginates from the authorized medical provider while in the course of\nproviding treatment to the injured employee.\n (i) Notwithstanding any other provision in this chapter, the chair\nshall by regulation establish a performance standard concerning the\nsubject of any penalty imposed under this paragraph against an employer,\ncarrier or third-party administrator. The performance standard\nestablished by the chair shall be used to measure compliance with this\nparagraph by employers, carriers and third-party administrators. The\nchair shall apply the performance standard based on multiple factors,\nincluding but not limited to, findings of improper interference\nsubmitted as complaints to the board's monitoring unit, unreasonable\nobjections to medical care, unwarranted objections to variances, medical\nbilling disputes, case delays brought about by employers, carriers and\nthird-party administrators, and the unreasonable denial of medical care.\n (ii) Upon validating an allegation that the employer, carrier or\nthird-party administrator has failed to meet the promulgated performance\nstandard, a penalty shall be assessed by the board upon notice to the\nemployer, carrier or third-party administrator. The board shall impose\nsuch penalty against the carrier, employer or third-party administrator\nin the amount of fifty dollars per violation identified in subparagraph\n(i) of this paragraph. The penalties for violations identified in\nsubparagraph (i) of this paragraph, may be aggregated into a single\npenalty upon a finding that an employer, carrier or third-party\nadministrator has interfered with an injured employee's necessary\nmedical treatment and care. Such aggregate penalty or assessment shall\nbe based upon the number of violations as multiplied against the\napplicable penalty or assessment, but may be negotiated by the chair's\ndesignee in full satisfaction of the penalty or assessment. Any\naggregate penalty or assessment issued under this paragraph shall be\nissued administratively, and the chair shall, by regulation, specify the\nmethod of review or redetermination, and the presentment of evidence and\nobjections shall occur solely upon the documentation. Any final\ndetermination shall be subject to review under section twenty-three of\nthis article but penalties may not be subject to a stay. A final\ndetermination that an employer, carrier or third-party administrator has\nengaged in a pattern of interference with an injured worker's access to\nmedically necessary medical care shall result in the imposition of an\naggregate penalty and publication of notice of such finding on the\nboard's web page.\n (7)(a) Notwithstanding any other provision of this chapter to the\ncontrary, any insurance carrier authorized to transact the business of\nworkers' compensation insurance in this state, self-insurer or the state\ninsurance fund may contract with a network or networks, legally and\nproperly organized, to perform diagnostic tests, x-ray examinations,\nmagnetic resonance imaging, or other radiological examinations or tests\nof claimants and may require claimant to obtain or undergo such\ndiagnostic test, x-ray examinations, magnetic resonance imaging or other\nradiological examinations or tests with a provider or at a facility that\nis affiliated with the network or networks with which the carrier\ncontracts, except if a medical emergency occurs requiring an immediate\ndiagnostic test, x-ray examination, magnetic resonance imaging or other\nradiological examination or test or if the network with which the\ninsurance carrier, self-insurer or the state insurance fund contracts\ndoes not have a provider or facility able to perform the examination or\ntest within a reasonable distance from the claimant's residence or place\nof employment, as defined by regulation of the board.\n (b) Any insurance carrier, self-insurer or the state insurance fund\nwhich requires claimants to obtain or undergo diagnostic tests, x-ray\nexaminations, magnetic resonance imaging or other radiological\nexaminations or tests with a provider or at a facility affiliated with a\nnetwork or networks with which it contracts, must notify the claimant of\nthe name and contact information for the network or networks at the same\ntime the written statement of the claimant's rights as required by\nsubdivision two of section one hundred ten of this chapter or\nimmediately after imposing such requirement if the time period within\nwhich the written statement of the claimant's rights as required by\nsubdivision two of section one hundred ten of this chapter has expired.\n (c) At the time a request for authorization for special diagnostic\ntests, x-ray examinations, magnetic resonance imaging or other\nradiological examinations or tests costing more than one thousand\ndollars as required by subdivision five of this section is approved, the\ninsurance carrier, self-insurer or state insurance fund, or if so\ndelegated the network with which the insurance carrier, self-insurer or\nstate insurance fund has contracted, shall notify the physician\nrequesting authorization of the requirement that the claimant obtain or\nundergo the special diagnostic test, x-ray examination, magnetic\nresonance imaging or other radiological examination or test with a\nprovider or at a facility affiliated with the network or networks with\nwhich it has contracted, the contact information for the network and a\nlist of the providers and facilities within the claimant's geographic\nlocation, as defined by regulation of the board. The claimant, in\nconsultation with the provider who requested the special diagnostic\ntest, x-ray examination, magnetic resonance imaging or other\nradiological test or exam, will determine the provider or facility from\nwithin the network which will perform such diagnostic test, x-ray\nexamination, magnetic resonance imaging or other radiological\nexamination or test.\n (d) The results of the special diagnostic test, x-ray examination,\nmagnetic resonance imaging or other radiological test or exam must be\nsent to the physician who requested the test or exam immediately upon\ncompletion of the report detailing the results.\n