TEXT OF IME REGULATION

Please note this text was renumbered by the Department of State subsequent to its publication in the New York State Register. The text below reflects the revised number formatting. This material is provided for information only. Please refer to authorized publications of the rules and regulations of the State of New York for official references.

Sections 325-2.7, 325-2.8 and 325-2.9 of Title 12 NYCRR and Section 300.2 of Title 12 NYCRR are repealed.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 Section 300.2 is added to read as follows:

Section 300.2 Independent medical examinations, examiners, and entities.

1. Purpose. Pursuant to Workers' Compensation Law sections 13-a, 13-b, 13-d, 13-k, 13-l, 13-m, 13-n and 137, and in accordance with these regulations, the chair of the Workers' Compensation Board shall:
   1. authorize 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' Benefit Law;
   2. modify or revoke 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;
   3. require 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
   4. require the registration with the chair of entities that derive income from independent medical examinations.
2. Independent medical examiners; definitions. For purposes of this Part, the following terms have the following meanings:
   1. Attending provider or attending practitioner means the provider or practitioner who has primary responsibility for treating the claimant for the injury or illness for which such claimant is being examined.
   2. Authorized provider means a physician, surgeon, podiatrist, chiropractor or psychologist who possesses a current, valid and unrestricted professional license granted by the New York State Board of Regents, and meets the following requirements for authorization by the Workers' Compensation Board to conduct independent medical examinations:
      1. Requirements for all professions. Each applicant must complete the application process for independent medical examiners required for the applicant's licensed profession under section 13-b, 13-k, 13-l or 13-m of the Workers' Compensation Law and paragraph (c)(2) of this section. A physician, surgeon, podiatrist, chiropractor or psychologist who is currently authorized to provide treatment to persons in accordance with the Workers' Compensation Law, Volunteer Ambulance Workers' Benefits Law and Volunteer Firefighters' Benefits Law must apply for and receive a separate or additional authorization in order to conduct independent medical examinations under such laws.
      2. Requirements specific to professions.
         1. A physician or surgeon must have a degree of doctor of medicine, M.D., or doctor of osteopathy, D.O., or an equivalent degree in accordance with the regulations of the Commissioner of Education, and must satisfactorily meet all other licensing requirements of the State Board of Medicine and Commissioner of Education, and must be board certified as defined in paragraph (3) of this subdivision.
         2. A podiatrist must have received a doctoral degree in podiatry in accordance with the regulations of the Commissioner of Education, and must satisfactorily meet all other licensing requirements of the State Board for Podiatry and the Commissioner of Education.
         3. A chiropractor must have completed two years of preprofessional college study and a four-year resident program in chiropractic in accordance with the regulations of the Commissioner of Education, and must satisfactorily meet all other licensing requirements of the State Board for Chiropractic and the Commissioner of Education.
         4. A psychologist must have received a doctoral degree in psychology from a program of psychology registered with the State Education Department or the substantial equivalent thereof in accordance with the regulations of the Commissioner of Education, and must satisfactorily meet all other licensing requirements of the State Board for Psychology and the Commissioner of Education.
   3. Board certified means a physician or surgeon who is certified by a specialty board that is recognized by the American Board of Medical Specialties or the American Osteopathic Association.
   4. Independent medical examination means an examination performed by an authorized or qualified independent medical examiner, pursuant to section 13-a, 13-k, 13-l, 13-m or 137 of the Workers' Compensation Law, for purposes of evaluating or providing an opinion with respect to schedule loss, degree of disability, validation of treatment plan or diagnosis, causal relationship, diagnosis or treatment of disability, maximum medical improvement, ability to return to work, permanency, appropriateness of treatment, necessity of treatment, proper treatment, extent of disability, second opinion or any other purpose recognized or requested by the board. An examination that is conducted for any of the purposes described in this section shall be deemed an independent medical examination and shall be subject to the requirements governing the conduct and reports of such examinations as set forth under sections 13-a, 13-b, 13-d, 13-k, 13-l, 13-m, 13-n and 137 of the Workers' Compensation Law and this Part. An examination conducted at the request of the chair or the board in accordance with section 13(e) or 19 of the Workers' Compensation Law shall not constitute an independent medical examination for purposes of this Part, or for purposes of sections 13-b, 13-k, 13-l, 13-m and 137 of the Workers' Compensation Law.
   5. Independent medical examiner means a physician, surgeon, podiatrist, chiropractor or psychologist who is authorized to conduct independent medical examinations as defined in paragraph (4) of this subdivision, in accordance with sections 13-b, 13-k, 13-l, 13-m and 137 of the Workers' Compensation Law and this Part, or is found to be qualified to perform such examinations by a Workers' Compensation Law judge as set forth in paragraph (9) of this subdivision.
   6. Managed care organization or MCO means an organization certified by the Commissioner of Health pursuant to section 126 of the Workers' Compensation Law.
   7. Medical facility means a professional office suitable for a medical, podiatric, chiropractic or psychological examination, where the primary use of the examination location is not residential, commercial, educational, or retail in nature. A professional office that is adjacent to a residence may serve as a medical facility for independent medical examinations if the residence provides a separate entrance for the professional office that is clearly marked as a professional office, provides adequate privacy to the injured worker, and is listed with the Workers' Compensation Board and the State Education Department as an office address for the provider conducting the examination. A medical facility shall have adequate access, heat, light, space and equipment to provide for the safety and integrity of the examination, and shall meet reasonable sanitary requirements. Medical facilities shall meet other requirements consistent with section 137 of the Workers' Compensation Law as may be required by the chair or Workers' Compensation Law judge, and shall meet all applicable standards for accessibility as required under State or Federal law.
   8. Preferred provider organization or P.P.O. means a plan licensed by the Commissioner of Health pursuant to section 353 of the Workers' Compensation Law that is owned, operated, or administered by an entity that provides for the delivery of services required under article 10-A of the Workers' Compensation Law.
   9. Qualified means, with respect to independent medical examiners, a physician, surgeon, podiatrist, chiropractor or psychologist who holds a current, valid and unrestricted professional license in the state in which he or she performs the subject independent medical examination, and is found to meet additional professional standards as may be required in the discretion of a Workers' Compensation Law judge or the chair or board based upon the particular facts of a case.
   10. Representative, for purposes of section 137(A)(1) of the Workers' Compensation Law, means a claimant's attorney or a representative who is licensed and authorized by the board to appear in matters or proceedings before the board in accordance with section 24-a of the Workers' Compensation Law, or a person who is licensed to represent the members of its bona fide charitable or welfare organization or labor or other organization pursuant to section 302- 1.3(b) of this Title.
   11. Request for information, for purposes of section 137(B)(1) of the Workers' Compensation Law, except as limited under section 4503 of the Civil Practice Law and Rules, means any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person, including a claimant, that takes place or is initiated outside of the independent medical examination, including a request or referral for examination and any communication related thereto, questions or inquiries related to the claimant or the examination, and the provision of information to the examiner for review in connection with a request for the examiner's professional opinion with regard to the claimant or the examination.
3. Independent medical examination provider eligibility requirements and application procedures.
   1. Eligibility requirements. A physician, surgeon, podiatrist, chiropractor or psychologist who seeks to become authorized to conduct independent medical examinations of persons suffering injuries or illness which are the subject of claims under the Workers' Compensation Law, Volunteer Firefighters' Benefits Law and Volunteer Ambulance Workers' Benefits Law must meet the requirements set forth for an authorized provider under paragraph (b)(2) of this section and section 13-b, 13-k, 13-l, or 13-m of the Workers' Compensation Law.
   2. Application 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 of persons suffering injuries or illness which are the subject of claims under the Workers' Compensation Law, Volunteer Firefighters' Benefits Law and Volunteer Ambulance Workers' Law 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 Workers' Compensation Board designated for review of such applications under section 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.
   3. A provider may retain authorization to conduct independent medical examinations only so long as such provider continues to comply with the laws and regulations governing such authorization and the provider's profession, and submits to such reports and investigation as may be required by the chair. Otherwise, his or her name may be removed from the chair's list of authorized providers in accordance with section 13-d, 13-k, 13-l or 13-m of the Workers' Compensation Law.
4. Procedures for notice, conduct and reporting of independent medical examinations.
   1. Notice. The claimant shall receive notice posted by United States mail of the scheduled independent medical examination at least seven business days prior to the date of such examination. The notice shall be printed on Workers' Compensation Board form IME-5 or such other form prescribed by the chair, and shall include all information required thereon, as set forth under Workers' Compensation Law section 137. Upon request by the board, the party scheduling such examination shall provide proof in the form of an affidavit, or a business record that meets requirements for admissibility under Rule 4518 of the Civil Practice Law and Rules, that the notice was mailed at least 12 business days prior to the date of the examination. In the event that an independent medical examination is required for the purpose of determining authorization for special services for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations or special diagnostic laboratory tests in accordance with section 13-a(5) of the Workers' Compensation Law, and a delay in authorization for such special services would result in a worsening of the claimant's condition or irreparable harm, and the examination can be scheduled less than 12 business days from the date of the request for the examination, the claimant may, by written consent waive the requirement of seven business days' notice of the examination. However, in case of such a waiver by the claimant of seven business days' notice of the examination, for purposes of scheduling an examination for authorization of such special services, a notice of the examination must be sent to the claimant as soon as possible after the scheduling of the examination in the same manner as otherwise required for notices of examinations under section 137 of the Workers' Compensation Law and this Part. In no event may the right to such notice be waived pursuant to an employment agreement or a collective bargaining agreement. If a claimant requests that an examination be rescheduled, and the examination is rescheduled less than seven business days after the request, the notice required under section 137 need not be received seven business days prior to the examination, but must be sent to the claimant as soon as possible in the same manner as required for the original notice under said section and this section.
   2. Examination requested by claimant. 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 paragraph (b)(4) of this section, shall be liable for all reasonable fees and costs associated with such examination. However, where a claimant can demonstrate to the satisfaction of the board that he or she made a good faith effort to obtain an opinion from his or her attending provider prior to seeking an independent medical examination for any of the purposes described under paragraph (b)(4) of this section, and that the attending provider was unable by reason of death or absence from the State, or unreasonably failed or refused to provide such opinion, the carrier shall be liable for all reasonable fees and costs associated with such examination. Where a claimant seeks an independent medical examination 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 paragraph (b)(4) of this section, the independent medical examiner shall inform the claimant in writing on the form prescribed by the chair for notice of such examination that the claimant may be responsible for payment of the cost of such examination, and shall state the actual fee or fee range for such examination.
   3. Reports. The independent medical examiner shall provide copies of complete and accurate reports of examinations as required under section 137(A)(1) of the Workers' Compensation Law by filing the form prescribed by the chair for such purpose with the board and providing copies of such form to the insurance carrier, the claimant's attending or provider or other primary attending practitioner, the claimant's attorney or licensed representative and the claimant. All such reports shall be sent on the same day and in the same manner. Each such report shall contain a signed statement certifying that the report is a full and truthful representation of the examiner's professional opinion with respect to the claimant's condition in accordance with section 13-a(4)(e)(i) of the Workers' Compensation Law. A report that does not bear such signed certification shall not be sufficient to meet the requirements of section 137 or this section, and shall not be admissible as evidence in a workers' compensation proceeding. Notices of requests for information as required under section 137(B)(1) of the Workers' Compensation Law and copies of information provided by the examiner in response to such requests shall be provided on or attached to a form prescribed by the chair for such purpose.
   4. Conduct at examination. The claimant or the examiner may videotape or otherwise record the examination, and the claimant may be accompanied to the examination by an individual or individuals of his or her own choosing. However, neither the examiner nor the claimant may disrupt or interfere with the examination by such recording or as a result of the presence of such companion or companions.
   5. Relationship between examiner and claimant. The independent medical examiner shall not provide treatment to the claimant, and no patient-physician or patient-provider relationship is established by conducting an independent medical examination in accordance with section 13-a, 13-k, 13-l or 13-m of the Workers' Compensation Law or this Part. However, all laws and regulations governing the confidentiality of medical records and workers' compensation records shall apply to records of an independent medical examination. Notwithstanding the limitations set forth under section 137(9) of the Workers' Compensation Law, an independent medical examiner who has evaluated a claimant at the request of the employer, carrier or claimant may conduct a subsequent independent medical examination of the claimant for the same injury or illness.
   6. Regular business hours. Independent medical examinations shall be conducted between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday except that they shall not be conducted on official and officially recognized religious holidays. An examination may be scheduled outside of regular business hours only with the consent and for the convenience of the claimant.
   7. Unreasonable burden. Where a carrier, employer or claimant finds that it would place an unreasonable burden upon him or her to arrange for or attend an independent medical examination by an authorized provider, the employer or carrier shall arrange for such examination to be performed by a qualified provider. Upon request by the board, the person requesting such examination by a qualified provider must demonstrate the existence of the unreasonable burden to the satisfaction of the board. Where a party is unable to demonstrate to the satisfaction of the board that an unreasonable burden existed which required the examination to be conducted by a qualified provider rather than an authorized provider, the report based upon such examination by a qualified provider shall not be admissible as evidence in a workers' compensation proceeding.
   8. Ability of claimant to appear. The physical capability of a claimant to present himself or herself for examination, and the observations of the examiner in relation to the claimant's ability to present for such examination shall not constitute dispositive evidence in determining a claimant's disability, degree of disability or eligibility for compensation or benefits under the Workers' Compensation Law. However, refusal by the claimant to submit to an independent medical examination requested by an employer or carrier 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 paragraph (b)(4) of this section, shall bar the claimant from recovering compensation for any period during which he or she has refused to submit to such examination.
   9. No waiver of claimant's rights. Except as otherwise provided, a claimant may not waive any of the rights provided under section 137 of the Workers' Compensation Law in relation to independent medical examinations. A report of an examination that does not substantially comply with the requirements of section 137 of the Workers' Compensation Law and this Part, shall not be admissible as evidence for any of the purposes described in paragraph (b)(4) of this section in a workers' compensation proceeding. Except for a waiver that is expressly authorized by the Workers' Compensation Law or this Part or by a Workers Compensation Law judge, and is knowingly executed by the claimant, no agreement between an employee and employer, or employee and carrier shall be binding upon the board; nor shall any such agreement in any way excuse compliance with said section 137 or this Part. In no event shall a collective bargaining agreement be binding upon the board or excuse compliance with respect to said section 137 or this Part; nor shall a claimant be required or permitted to waive any of the requirements of section 137 or this Part pursuant to such agreement.
   10. Selection of examiners in a P.P.O. Notwithstanding any provision to the contrary:
       1. an employer retains its right as permitted under section 354 of the Workers' Compensation Law and 10 NYCRR 732-2.2(k)(2) to require a second opinion from a provider within a P.P.O. in the event that an employee seeks medical treatment outside the P.P.O.; and
       2. a claimant retains his or her right as permitted under 10 NYCRR 732-2.2(g) to access a second opinion from a provider within a P.P.O. where the claimant has previously been evaluated or treated by another provider within the P.P.O.
   11. A written report of a medical examination duly sworn to, shall be filed with the Board, and copies thereof furnished to all parties as may be required under the Workers' Compensation Law, within 10 days after the examination, or sooner if directed, except that in cases of persons examined outside the State, such reports shall be filed and furnished within 20 days after the examination.
   12. Copies of written reports of medical experts, made on behalf of any party without physician examination of the claimant, to be used for reference at a hearing, must be furnished to the referee and to all other parties or their representatives, if any, prior to that hearing.
5. Registration of entities.
   1. Mandatory registration. Any entity that derives income from independent medical examinations performed in accordance with section 13-a, 13-k, 13-l or 13-m of the Workers' Compensation Law, 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, shall register with the chair by filing the form prescribed by the chair for such purpose. 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.
   2. Compliance with laws. 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 Insurance Department, 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.
   3. Additional information. 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.
   4. Acceptance of registration not a defense. 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.
   5. Registration fee. The registering entity shall pay a registration fee of $250 to the chair for the purpose of administering the registration of such entities in accordance with section 13-n of the Workers' Compensation Law.

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