Summary of Rule
Sections 325-2.7, 325-2.8 and 325-2.9 of Title 12 NYCRR and Section 300.2 of Title 12 NYCRR are repealed.
New Sections 300-2.0, 300-2.1, 300-2.2, 300-2.3 and 300-2.4 of Title 12 NYCRR are added.
The purpose of the new Part 300-2 is to implement those provisions of Workers' Compensation Law Sections 13-a, 13-b, 13-d, 13-k, 13-l, 13-m, 13-n and 137 as are amended or established by Chapter 473 of the Laws of 2000.
The new Section 300-2.0 provides for:
- Authorization of competent providers who meet eligibility requirements to conduct independent medical examinations of persons suffering injuries or illnesses which are the subject of claims under the Workers' Compensation Law, Volunteer Firefighters' Benefits Law and Volunteer Ambulance Workers' Benefits Law;
- Modification or revocation of such authorization where there is a failure of continued compliance with such laws and regulations or other provisions governing the professional conduct or obligations of such providers;
- Guidelines to ensure that such independent medical examinations are conducted in accordance with Workers' Compensation Law Sections 13-a, 13-b, 13-d, 13-k, 13-l, 13-m, 13-n and 137 and these regulations and that reports of such independent medical examinations are prepared and transmitted in accordance with Workers' Compensation Law Section 137 and these regulations; and
- Guidelines for the registration with the Chair of entities that derive income from independent medical examinations.
Section 300-2.0 sets forth the purposes of the new rule.
Section 300-2.1 provides definitions for various terms that are set forth in Sections 13-a, 13-b, 13-d, 13-k, 13-l, 13-m, 13-n and 137 of the Workers' Compensation Law, as amended or established in Chapter 473 of the Laws of 2000. This Section explains the professional requirements necessary for providers who wish to become "authorized providers" to conduct independent medical examinations in accordance with the Workers' Compensation Law. The authorization requirements for all physicians, surgeons, podiatrists, chiropractors and psychologists include: a current, valid and unrestricted professional license issued by the New York State Board of Regents in accordance with the state board governing the applicant's profession, and continuing compliance with all licensing requirements of the commissioner of education. Under the authorizing law and these regulations, there is an additional requirement that physicians and surgeons must have specialty board certification. This Section defines "board certification" as certification by a specialty board that is recognized by the American Board of Medical Specialties or the American Osteopathic Association. Authorized providers must complete the application process for independent medical examiners for the applicant's licensed profession as set forth under Sections 13-b, 13-k, 13-l or 13-m of the Workers' Compensation Law and part 300-2.2 of these regulations. This Section also defines independent medical examination by reciting the purposes for which such examinations are conducted, and by excluding examinations conducted at the request or upon the order of a Workers' Compensation Law judge or the Chair or Board. This Section also defines the circumstances under which a provider may be found to be "qualified" to conduct a particular independent medical examination as permitted by the authorizing statute. Other defined terms include: attending provider or attending practitioner, managed care organization, medical facility, Preferred Provider Organization or P.P.O., representative, and request for information.
Section 300-2.2 sets forth provider eligibility requirements and applications procedures. Application, review and authorization procedures for independent medical examiners shall be conducted in accordance with Sections 13-b, 13-k, 13-l and 13-m of the Workers' Compensation Law. Each physician, surgeon, podiatrist, chiropractor or psychologist seeking authorization to conduct independent medical examinations shall complete Workers' Compensation Board Form MR/IME-1, or such other form prescribed by the Chair. A physician or surgeon shall submit the application for review to the county medical society in which his or her office is located, or to the New York State Osteopathic Medical Society, or to the panel or board designated by the Chair for review as provided in Section 13-b of the Workers' Compensation Law. A podiatrist, chiropractor or psychologist shall submit the application to the podiatry, chiropractic or psychology practice committee of the Worker's Compensation Board designated for review of such applications under Sections 13-k, 13-l or 13-m of the Workers' Compensation Law. The reviewing county medical society, state medical society, panel, board or practice committee shall make an advisory recommendation to the Chair regarding each application as required under the Workers' Compensation Law. Upon such recommendation, the Chair shall authorize a review of each application by the Workers' Compensation Board, and shall determine whether the applicant may become authorized to conduct independent medical examinations under the Workers Compensation Law. Upon approval of an application by the Chair, the applicant shall receive an authorization notice and a provider authorization number. An applicant who is denied authorization shall receive a notice of denial of authorization.
300-2.3 sets forth procedures for notice, conduct and reporting of independent medical examinations as required under the authorizing statute.
This Section clarifies the statutory requirement that a claimant shall receive notice by mail of the scheduled independent medical examination at least seven business days prior to the date of such examination. This Section authorizes the use of a Board prescribed notice form and provides guidelines for compliance and proof of compliance with statutory notice requirements.
This Section also provides a limited provision for waiver of seven business days' notice where a delay in authorization for special services in accordance with Section 13-a(5) of the Workers' Compensation Law would result in a worsening condition or irreparable harm to the claimant.
This Section further provides that, with certain exceptions, a party requesting an independent medical examination from a provider other than the attending provider in accordance with subdivision 4(B) of Section 13-a, subdivision 3(B) of Section 13-k, subdivision 3(B) of Section 13-l, or subdivision 4(B) of Section 13-m of the Workers' Compensation Law, for a purpose described under Section 300-2.1(d) of this Part, shall be liable for all reasonable fees and costs associated with such examination.
This Section clarifies statutory requirements for preparation and provision of copies of reports of examinations, and authorizes the use of a prescribed form for distribution of such reports.
This Section provides guidelines for the conduct of independent medical examinations, by addressing the statutory rights of the claimant or examiner to videotape or otherwise record the examination, and the right of the claimant to be accompanied to the examination.
This Section also clarifies that no physician-patient relationship is established by an independent medical examination.
This Section defines the statutory term requiring that examinations be held during regular business hours. This section provides guidelines regarding demonstration of the existence of an unreasonable burden for purposes of utilizing a "qualified" rather than an "authorized" provider; and use as evidence of the provider's observations regarding the ability of claimant to appear at an examination. This Section also provides that the rights of a claimant under section 137 of the Workers' Compensation Law may not generally be waived.
This Section further provides that employers and claimants retain existing rights under Section 354 of the Workers' Compensation Law and Title 10 of NYCRR with regard to second opinions in a P.P.O.
Section 300-2.4 implements new Section 13-n of the Workers' Compensation Law by providing for the mandatory registration with the Chair of entities that derive income from independent medical examinations, whether by employing or contracting with independent medical examiners or by acting as a referral service or by arranging or otherwise facilitating or providing administrative services for such examinations.
Section 300-2.4(a) requires that the entity shall provide upon registration the name or names under which it is registered with the Department of State, the name or names under which it conducts business, the address or addresses of its administrative office and each of the offices where it conducts any business, the telephone numbers of each business location, the entity's tax identification number, the name, title and telephone number of the contact person for the entity, the names, addresses and telephone numbers of each of the entity organization's officers, owners or partners, and a description of the services provided by the entity and its employees or independent contractors, including a description of the relationship between the entity and its owners, officers or partners and the independent medical examiners it employs or with whom it contracts to conduct independent medical examinations.
Section 300-2.4(b) requires that an officer of each such entity registering with the Chair shall affirm under penalty of perjury upon registration that the entity is organized under the laws of New York State in a corporate form that is recognized by the laws of the State of New York, is duly registered with the Department of State, and is in full compliance with the laws of the State of New York and the United States, including but not limited to any laws or regulations under the Public Health Law, the Education Law and the Workers' Compensation Law governing the practice of medicine, podiatry, chiropractic and psychology, treatment of injured or ill workers, solicitation and fee-splitting, and any laws or regulations under the jurisdiction of the state Department of Insurance, the federal Health Care Financing Administration, the state Department of Taxation and Finance or the federal Internal Revenue Service. The officer shall further affirm that he or she has read or is familiar with the fee-splitting and anti-solicitation provisions of the Workers' Compensation Law under Sections 13-d, 13-i, 13-k, 13- l and 13-m, and that the entity is not in violation of any such Section.
Section 300-2.4(c) provides that the Chair reserves the right to request additional information or documentation from the registering entity for the purpose of administering Sections 13-a, 13- b, 13-d, 13-i, 13-k, 13-l, 13-m, 13-n, 137 and other related provisions of the Workers' Compensation Law.
Section 300-2.4(d) provides that the acceptance of a registration statement by the Chair in accordance with Section 13-n of the Workers' Compensation Law and these regulations shall not be construed as authorization, approval or endorsement of the registering entity, or its services, corporate organization or business practices by the Chair or Board, and the acceptance of a registration statement by the Chair shall not be a defense to any investigation, action or proceeding by any government agency or official enforcing the laws of this state or the United States.
Section 300-2.4(e) provides that the registering entity shall pay a registration fee of $250 to the Chair as may be required at the time of registration, as set forth under new Section 13-n of the Workers' Compensation Law.
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