The Workers' Compensation Board received comments from IME companies, trade associations, insurance carriers, self-insured employers, the Medical Society of the State of New York, the New York State Osteopathic Medical Society, individual providers, the Business Council of New York State, attorneys representing physicians, and one county medical society. The Medical Society of the State of New York, the New York State Osteopathic Medical Society and the New York State AFL-CIO also sent representatives to personally convey specific issues to the Office of the Chair.
The full assessment of pubic comment prepared by the Workers' Compensation Board exceeds 2000 words. This document is a summary of the full assessment of public comment. A copy of the full assessment may be obtained upon request by contacting Regina G. Morano, Esq., Special Counsel to the Chairman, New York State Workers' Compensation Board, 20 Park Street, Albany, New York 12207, telephone (518) 474-6670.
Many of the written comments addressed themselves to matters governed by the Injured Workers' Protection Act (Chapter 473 of the Laws of 2000) and not by this rule.
The Office of the Chair conducted exhaustive outreach following the effective date of Chapter 473 and the publication of the proposed regulation, including visits with constituent groups in New York City, Albany and Central New York, individual responses to more than 200 telephone inquiries and, where appropriate, written guidance regarding implementation. Following publication of the final rule, the Board will also release and electronically post "Frequently Asked Questions on the New IME Law and Regulations," in an ongoing effort to provide clarification of terms and requirements to constituents.
Many commentators requested modifications to IME forms that have been promulgated pursuant to Chapter 473. The IME forms are promulgated in accordance with Chapter 473 of the Laws of 2000, and not by this rule.
Based upon public comments received, the final rule contains the following nonsubstantial modifications.
Several commentators objected to the requirement of mailing notices of independent medical examinations ("IME's") twelve days in advance. WCB determined that the twelve-day rule, in addition to the ability to produce a standard business record rather than a certified mail receipt, constitutes a workable manner of complying with the statutory notice requirement.
One commentator requested that overnight mail or personal delivery be permitted for notices. However, the governing law requires that the claimant receive such notice "by mail." Additionally, some injured workers receive their mail at post office boxes, which do not accept many forms of commercial delivery.
Commentators requested an exception to the "same day, same manner" requirement set forth under Workers' Compensation Law ("WCL") Section 137 where notice of expedited results may be beneficial to an injured worker. It is permissible to send an immediate summary report containing expedited information to all parties in accordance with the "same day/same manner" requirements of Section 137, and then subsequently send a full follow-up report to all parties on the same day and in the same manner.
One commentator requested that the Board permit injured workers generally to waive rights conferred by the governing statute and this rule. The WCB declines to create a general regulatory exception to affirmative statutory rights.
Commentators sought further definition of, or objected to, the statutory requirements for "qualified" providers and "unreasonable burdens" in cases where non-authorized providers may be utilized. A full assessment of these comments is included in the full assessment of public comment. The WCB will continue to work directly with its Division of Quality Adjudication to set adjudication guidelines in these matters.
One commentator objected to the requirement that IME entities be organized under the laws of New York State. WCB has carefully considered this argument and has further reviewed other regulatory provisions that require certain entities deriving income from workers' compensation matters to be organized under the laws of New York State. WCB has determined that this requirement is consistent with the widely demonstrated intent of the Injured Workers Protection Act (Chapter 473 of the Laws of 2000), which was in large part to make independent medical examinations and examiners subject to accountability within the state, for the protection of injured workers.
One commentator objected to the application of confidentiality laws to IME reports. WCB declines to create a regulatory exception to the privacy rights afforded injured workers under existing law.
One commentator objected to the "substantial compliance" provision of the proposed regulation, asserting that such a provision would have a draconian effect on parties submitting reports. However, this provision is intended to prevent IME reports from being precluded from evidence based upon minor or ministerial defects.
Several commentators objected to the right of a claimant to videotape or bring a companion to an IME examination. Some requested limitations, or requested that similar rights be codified in favor of IME providers. It is not within the agency's jurisdiction to limit an express statutory right by regulation, and the agency declines to impose any additional financial burden on injured workers. Further discussion of the videotape comments is included in the full assessment of public comment.
One commentator requested that the "ability to appear" language at 300-2.3(h), regarding a claimant's physical ability to attend an examination, should also include affirmative statement 6 that employer may construe a non-appearance as a refusal, thus barring benefits. This reference is a codification of the statutory language set forth at WCL Section 137(10), meaning that an IME provider's observations of claimant's ability to physically attend an examination shall not constitute dispositive evidence in the determination of eligibility for benefits.
One IME company and three law firms representing physicians who do not meet the statutory requirements for authorization to conduct IME examinations disagreed with the WCB's interpretation and implementation of the statutory requirements. The Medical Society of the State of New York (MSSNY) and one county medical society have requested that the Chair give "special consideration" to some physicians who conducted IME examinations prior to the adoption of the Injured Workers' Protection Act, but who are not eligible to be authorized to conduct such examinations under the new law.
The Chair declines to create a regulatory exception to the express statutory requirement of board certification. Based upon extensive analysis prior to the implementation of Chapter 473 of the Laws of 2000, and further analysis of comments and documentation following publication of the proposed rule, the Chair has determined that the agency's interpretation of the term "board certified" is consistent with law, and is further consistent with long-held interpretations of this term by the Workers' Compensation Board and the medical profession. Further assessment of this issue is included in the full assessment of public comment.
One attorney, on behalf of a physician applicant, also objected to the requirement that a physician's professional license must be "unrestricted" in order for the Chair to authorize a physician to conduct independent medical examinations. The Chair has determined that the requirement of an unrestricted professional license for IME authorization is a basic eligibility requirement necessary for the protection of injured workers.
One commentator stated that the new IME law would make it more difficult for employers to address employee fraud. However, the new IME law formally recognizes the jurisdiction of the Workers' Compensation Fraud Inspector General in matters of employer and employee fraud.
Commentators requested modifications to the fee schedule in relation to IME examinations. The Board will continue to address fee schedule issues within the applicable statutory framework.
Some commentators stated that the cost of compliance with the new IME law, in particular the report distribution, will increase costs of conducting IME exams. By this rule, the Chair consolidated many of the forms required under Chapter 473, in order to reduce paperwork requirements associated with compliance.
Two commentators stated that it is difficult to identify whether a physician belongs to an excluded PPO. The Board has explicitly clarified and limited the PPO exclusion by this rule.
Commentators requested clarification and exceptions to the "regular business hours" requirement. The definition of "regular business hours" is specific, and is consistent with ordinary and plain meaning of the term. The statute contains a limited, express exception.
One commentator requested clarification regarding what constitutes an independent medical examination. The rule expressly defines IME examinations.
Commentators requested that the rule protect disclosure of surveillance tapes. The Chair declines to provide a specific privilege or protection for surveillance material that is broader than existing statutory or common law.
Commentators requested a limitation on definition of "request for information." Because Chapter 473 was intended largely to maximize disclosure of information and communication, the Chair declines to limit the scope of a "request for information" that is subject to disclosure.
Commentators inquired as to whether providers who are not denominated in the authorizing statute, can be authorized providers. The statutory term "or any other person authorized," as set forth at WCL §137(3)(A), applies to dentists and other types of health care providers who are not specifically denominated by the authorizing statute.
Commentators requested clarification as to whether chart reviews constitute IME examinations. Chart reviews do not constitute independent medical examinations because they do not involve an examination of the injured worker.
Commentators requested clarification of payment requirements for IME examinations. This rule clarifies existing case law regarding IME examinations requested by claimants.
Commentators requested clarification and modifications regarding notices, handling and mailing of reports, responsibility for report costs, additional copies of reports, requests for information and urgent or emergency situations. A full assessment of these comments is included in the full assessment of public comment. The Board has also addressed the need for clarification through extensive outreach, including participation at group meetings in New York City and Central New York, and by providing individual letters of clarification and telephone responses. The Board will also electronically post clarification on these and other frequently asked questions.
One physician submitted an alternative proposal for governing IME examinations that would replace Chapter 473. The Board does not have jurisdiction to replace Chapter 473 with a conflicting regulatory scheme.
One commentator requested that WCB evaluate the effect of HIPAA on the IME law and rule. The Board is evaluating the effect of HIPAA on all phases of operations, and will also carefully evaluate its effect on new IME law and rule.
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