The Workers' Compensation Board received comments from IME companies, several 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 the Albany 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 45-day public comment period with respect to Proposed Rule No. WCB-11-01-00006-P commenced on March 14, 2001. The 45-day period of public comment for the proposed rule expired on April 28, 2001. The Workers' Compensation Board received and accepted formal written public comments on Proposed Rule No. WCB-11-01-00006-P until Friday May 4, 2001. Additional comments were sent to the Board during the month of August, 2001. These comments were also fully reviewed and assessed.
Many of the written comments addressed themselves to matters governed by the Injured Workers' Protection Act (Chapter 473 of the Laws of 2000), which were not responsive to the request for comments on the proposed regulation. Some comments contained extensive inquiries regarding interpretation of the governing statute or the proposed regulation and how the law or regulation would apply to a specific set of circumstances.
In particular, a consultants' association submitted a lengthy document that included some comments on the proposed rule, but also included numerous requests for hypothetical examples and questions regarding the application of Chapter 473 and the proposed regulation. The Office 2 of the Chair met with this association's membership in New York City following the publication of the proposed regulation, provided formal written responses to two issues, and spoke several times with the association's president and counsel to fully address operational issues.
In order to facilitate implementation among constituents, 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.
Many commentators requested modifications to the IME forms that have been promulgated pursuant to Chapter 473. We note that the IME forms are expressly promulgated in accordance with Chapter 473 of the Laws of 2000, and not by regulation. The agency addressed all inquiries immediately by telephone or written reply, and is further addressing several suggestions for modifications to forms. In addition, the agency has discussed electronic distribution of reports with many parties, and has been able to approve limited distribution of copies of reports under certain circumstances. The agency has also made a commitment to further examine additional electronic document distribution in the future.
Portions of written submissions that were limited to requests for clarification or hypothetical examples, and which have been separately addressed through outreach or planned outreach, are not individually addressed in this assessment. Following publication of the final rule, the Workers Compensation 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 interested parties.
Many of the written comments addressed themselves to issues that the Office of the Chair previously addressed, through direct constituent outreach prior to the publication of the proposed rule, and in the Regulatory Impact Statement accompanying the publication of the proposed rule in the State Register on March 14, 2001. However, to a large extent, we address those issues again in this assessment.
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, in order to satisfy the statutory requirement that notices be received by claimants seven business days in advance. The Workers Compensation Board (WCB) considered and rejected several costly and burdensome alternatives to the twelve day rule prior to drafting the proposed regulations, including suggestions from some constituents that every notice be sent by certified mail. WCB determined that the twelve-day rule, in addition to the ability to produce a standard business record rather than a certified mail receipt for proof of mailing of notice, constitutes a workable manner of complying with the statutory notice requirement.
One commentator requested that carriers be permitted to send notices of examination by overnight mail or personal delivery. 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.
One commentator and several individuals inquiring by telephone requested an exception to the "same day, same manner" requirement set forth under Workers' Compensation Law ("WCL") Section 137 in cases where notice of expedited results may be beneficial to an injured worker. WCB has advised all inquiring parties that it would be permissible under the statute to send a an immediate summary report containing the 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. With the adoption of Chapter 473 of the Laws of 2000, the Legislature unanimously enacted and the Governor signed into law a comprehensive scheme of affirmative rights in favor of injured workers. The WCB declines to create a general regulatory exception to affirmative statutory rights. The WCB also addressed this issue in the Regulatory Impact Statement published in the March 14, 2001 edition of the State Register wherein the proposed rule was published.
One commentator objected to Workers' Compensation Law Judges having discretion to determine whether an out of state provider is "qualified" in a particular case, and requested that such discretion be limited to Chair or the "Board." Another commentator requested guidelines for when a provider would be viewed as "qualified" in a particular case where the claimant resides out of state, or there is a an unreasonable burden preventing utilization of an authorized provider. Workers' Compensation Law Judges are the primary fact-finders in workers' compensation cases. Therefore, they must retain discretion to determine whether a consultant is qualified to conduct and report on an independent medical examination. The Board will continue to work directly with its Division of Adjudication Quality Assurance to set guidelines for determining whether particular providers may be deemed qualified to conduct independent medical examinations in out of state cases or cases where it would create an unreasonable burden to utilize an "authorized" provider. Additionally, subsequent to the adoption of this rule, the WCB will 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 interested parties.
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, and suggested instead that carriers and employers should retain rights to use and disclose reports of IME examinations. However, WCB notes that with the unanimous adoption of Chapter 545 of the laws of 1998, the state of New York acted to affirmatively protect the privacy of workers' compensation records. 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, like similar provisions throughout state law, the substantial compliance provision is intended to prevent IME reports from being precluded from evidence based upon minor or ministerial defects.
Several commentators objected to the codification of the statutory right of a claimant to videotape or bring a companion to an IME examination. Some commentators requested limitations to be placed on these rights, or requested that similar rights be affirmatively codified in favor of providers conducting such examinations. While the WCB recognizes that some IME providers acting as consultants may be uncomfortable with the videotaping of an IME examination, it is not within the agency's jurisdiction to limit an express statutory right by regulation. To date, the agency has not been notified of any reports of abuses in this regard. However, the agency will monitor the implementation of the right of claimants to videotape and to bring a companion to IME examinations, by requesting the Board's Division of Adjudication Quality Assurance to bring any abuses to the attention of the Office of the Chair. The agency takes this opportunity to request that interested parties bring any abuses to the attention of the Office of the Chair.
Additionally, one commentator requested that the agency require any claimant who videotapes an IME examination to provide a copy of the videotape to the IME provider, and the agency establish authentication procedures for videotapes. However, the agency is concerned that the economic burden that producing such copies would place on injured workers is inconsistent with intent of Chapter 473. Further, authentication procedures are inconsistent with WCL §118, which provides that common law or statutory rules of evidence or by technical or formal rules of procedure do not apply to workers' compensation investigations or hearings.
Several commentators requested clarification of information contained on the IME forms promulgated by the Chair in accordance with Chapter 473 of the Laws of 2000, including in particular the IME-3, IME-4 and IME-5. The agency addresses all inquiries immediately by telephone or written reply, and is further addressing several suggestions for modifications to forms. We note that the IME forms are expressly promulgated in accordance with Chapter 473 of the Laws of 2000, and not by regulation. In addition, the agency has discussed electronic distribution of reports with many parties, and has been able to approve limited distribution of copies of reports under certain circumstances. The agency has also made a commitment to further examine additional electronic document distribution in the future.
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 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). It means 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. This language does not contradict a similarly worded, existing provision set forth under WCL §13-a.
More than 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 Workers' Compensation Board'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 of the Workers' Compensation Board 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.
In this regard, MSSNY acknowledged that Chapter 473 requires IME physicians to be "board certified," but formally requested "special consideration" in the form of grandfathering of "elder" physicians who conducted IME examinations prior to the time that the Legislature and Governor enacted the Injured Workers Protection Act. One county medical society also requested an amendment that would grandfather authorization for such physicians. However, MSSNY has repeatedly affirmed that the Workers' Compensation Board has not improperly interpreted the term "Board certified" in the implementation of Chapter 473 or in this rule. Following the publication of the proposed rule, MSSNY again affirmed by written comment that the requirement of "board certification," in relation to physicians performing consultant services under the Workers' Compensation Law, has been formally interpreted by the State Medical Society as certification by a specialty board that is recognized by the American Board of Medical Specialties ("ABMS") or the American Osteopathic Association ("AOA"), since approximately 1988. Specifically, the Medical Society of the State of New York advised the Chair: "[I]t has always been our policy to expect, if not demand, that when another physician is called upon to review a patient's chart or medical record, the reviewing physician be of the same or similar specialty of the physician who has provided care to the patient and the reviewer be ABMS or AOA board certified." Following publication of the proposed rule, the Medical Society of the State of New York transmitted a resolution to the Chair of the Workers' Compensation Board which again acknowledged the longstanding basis of the ABMS or AOA board certification requirement, but requested that the Chair create a regulatory exception to this now statutory requirement by permitting a "grandfathering" provision.
With the adoption of Chapter 473 of the Laws of 2000, the Legislature unanimously enacted and the Governor signed into law a comprehensive scheme of affirmative rights in favor of injured workers. One of the primary objectives of this new law was to expressly require that nontreating physicians who act as medical consultants on injured workers' cases, primarily at the request of insurance carriers and employers, must be board certified. The Chair declines to create a regulatory exception to an express statutory requirement.
The Chair has thoroughly examined the issues related to the statutory establishment of eligibility requirements for IME providers, and the agency's implementation of these requirements. By and with the Attorney General, we have fully examined each of the assertions submitted by attorneys on behalf of their physician clients. We have repeatedly consulted with the Medical Society of the State of New York on this matter. The Chair stands by the agency's interpretation of the statutory requirements for IME authorization, in particular the meaning of the term "board certified," and declines to modify the regulatory application of this definition. The Chair has determined that the creation of exceptions to the IME provider eligibility requirements or the practice of "grandfathering" of ineligible providers would be inconsistent with the objectives of the Injured Workers' Protection Act. The Chair has determined that the agency's interpretation of the term "Board certified" is consistent with the Injured Workers Protection Act and the Workers' Compensation Law, and is further consistent with long-held interpretations of this term by the Workers' Compensation Board and the medical profession.
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 adoption of the Injured Workers' Protection Act would make it more difficult for employers to address employee fraud. The Board takes this opportunity to note that the new IME law formally recognizes the jurisdiction of the Workers' Compensation Fraud Inspector General in matters of employer and employee fraud, and provides an additional basis for fraud referrals.
One commentator requested that WCB require by regulation that the party requesting an IME examination must provide the examiner with names and addresses of the all parties required by statute to receive a report of examination. An IME provider must ensure that he or she obtains all information necessary to properly conduct and report on an IME exam, including names and addresses of statutorily recognized parties.
One commentator requested that the rule require a party requesting an IME examination to pay copying and mailing costs of IME provider. The Chair fully considered this issue prior to drafting the Proposed Rule. However, the Chair determined that, pursuant to Executive Order 20, the marketplace should determine which parties will be responsible for additional business costs associated with implementation of Chapter 473 and its implementing rule.
Some commentators requested modifications to the fee schedule in relation to IME examinations. Chapter 473 does not authorize or require fee schedule modifications. Fee schedule modifications are governed separately by WCL §13. The Board will continue to address fee schedule issues within the existing statutory framework.
One commentator requested that dentists be included in the rule as authorized providers. Chapter 473 specifically enumerates, and thereby limits, the types of providers who may be formally authorized by the Chair to conduct IME's. This authorization is limited by statute to: physicians, podiatrists, chiropractors and psychologists. This is consistent with existing statutory provisions for authorization of treating providers under existing Sections 13-b, 13-k, 13-l and 13-m of the Workers' Compensation Law. However, dentists and other nondenominated providers may be called upon to conduct independent medical examinations pursuant to Section 19 or paragraph (e) of Section 13 of the Workers' Compensation Law, and may also be considered as "any other person authorized" under Section 137(3)(A) of the Workers' Compensation Law.
Many commentators requested clarification as to whether IME providers may request administrative support from an IME company for the distribution of IME-4 reports. The Board has addressed this issue at length with IME companies, physicians and trade associations and has provided written guidance to those requesting it. The Board recognizes that an IME company may generally distribute an IME report to the enumerated individuals at the request and for the convenience of the IME provider, under certain circumstances.
Distribution by an IME company would generally be permissible where the IME company is performing this service on behalf of the practitioner and at the practitioner's request; the report is sent on the same day and in the same manner to all of the required recipients; distribution of the report is limited to the required recipients; and the copies that are sent out are identical to the report as submitted by the practitioner. It would not be appropriate, however, for an IME company to require physicians to delegate distribution of the IME-4 form to the IME company on behalf of a carrier, or for a carrier to make this requirement of physicians.
Additionally, the Board notes that the practitioner is ultimately responsible for the proper distribution of the report, and therefore retains the discretion to request this service from an IME company or to handle the distribution in his or her own office.
Some commentators requested that we define "qualified" and "unreasonable burden" by regulation. The Board undertook extensive consideration of these terms prior to drafting the proposed rule. The Chair determined that Law Judges need to have discretion in assessing whether certain circumstances constitute an unreasonable burden and whether a provider is qualified. The Board will work directly with its Division of Adjudication Quality Assurance to determine guidelines in this regard.
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. The Board acknowledges that the cost of IME examinations may be increased. However, the new requirements are established by Chapter 473 of the Laws of 2000, and not by regulation. In fact, in its implementation of Chapter 473 and 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 previous physician belongs to an excluded PPO, and one states that the statutory exclusion will be "unenforceable." The Board has explicitly clarified and limited the PPO exclusion by this rule, and the Board has not received any reports of conflicts in the first five months. The Board will monitor problems with the PPO exclusion provision.
More than one commentator requested clarification and exceptions to requirement of "regular business hours." The definition of "regular business hours" is specific, and is consistent with ordinary and plain meaning of the term. However, the statute provides an exception to the regular business hours requirement, where a claimant requests an exam outside of regular business hours, "with the consent and for the convenience of the claimant."
Several commentators requested that the Board create numerous exceptions to the affirmative requirements of Chapter 473 and the implementing rule, including exceptions to notice and distribution of report requirements. Most of the exceptions requested during the comment period were also previously requested by the same entities during the extensive outreach conducted by WCB prior to drafting the Proposed Rule. Because the statute governing this rule creates affirmative, detailed rights in favor of injured workers, the Chair declines to limit those rights by regulation.
One commentator requested additional clarification regarding what constitutes an independent medical examination. The rule expressly defines the numerous types of examinations that can be considered independent medical examinations. The rule also provides additional language to cover "any examination that is conducted for any of the purposes described" in the Rule.
Several commentators requested that the rule provide express protection against disclosure of surveillance tapes generated by employers and insurance carriers who are surreptitiously monitoring employees. The Chair declines to provide a privilege or protection for surveillance material that is broader than existing common law and statutory privileges.
More than one commentator requested a limitation on definition of "request for information." Because the intent of the Act is in large part to maximize disclosure of information and communication between carriers and employers in relation to injured workers, the Chair declines to limit the scope of a "request for information" that is subject to disclosure.
More than one commentator inquired as to whether dentists or acupuncturists, who are not denominated in the statutes governing independent medical examinations or in this Rule, 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, but who may be called upon to conduct independent medical examinations.
Many commentators requested clarification regarding the same day, same manner requirements established under Chapter 473 for distribution of IME reports. The Board has addressed the need for clarification of this requirement 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. Following publication of this Notice of Adoption, the Board will electronically post clarification on this issue and other frequently asked questions.
More than one commentator requested clarification as to whether a chart review constitutes an IME examination. Chart reviews do not constitute independent medical examinations because they do not involve an examination of the injured worker. In its Notice of Proposed Rulemaking, the agency inadvertently designated the repeal of an existing regulation (12 NYCRR 300.2(c)) that governs the submission of reports of chart reviews. With this adoption, the agency is correcting that error. By this Notice of Adoption, the Board preserves and does not repeal 12 NYCRR 300.2(c).
More than one commentator requested clarification or bases for the provision setting forth requirements for payment of IME examinations. This rule clarifies existing case law and related regulations which already govern the circumstances under which a claimant or carrier may be required to pay the cost of an IME exam conducted on behalf of a claimant. The codification of this payment liability is derived from longstanding case law, which has held the carrier liable for payment of an IME examination requested by a claimant under certain circumstances. The Board is working directly with its Division of Adjudication Quality Assurance and the Office of Appeals to provide additional written guidance on this issue, and will continue to work with the Division of Adjudication Quality Assurance and the Office of Appeals to properly administer payment requirements.
Many commentators requested clarification or changes to IME forms promulgated by the Chair in accordance with Chapter 473. Essentially all of the forms are promulgated under statutory authority conferred by Chapter 473, and not by regulation. Therefore, comments regarding IME forms were non-responsive to the request for comments on the proposed regulations. The Board has made some form changes to date, and continues to review all comments on the forms. The Board anticipates additional changes to IME forms based upon ongoing input from constituents.
Many commentators requested clarification of the operation of the new law and proposed rule regarding notices, handling of reports, additional copies of reports, requests for information and urgent or emergency situations. The Board has 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. Following publication of this Notice of Adoption, WCB will electronically post clarification on this issue and other frequently asked questions.
One physician submitted an alternative proposal for governing independent medical examinations that would replace Chapter 473 by making the Workers' Compensation Board responsible for hiring physicians and conducting IME examinations at Board offices. With the adoption of Chapter 473, independent medical examinations are now expressly governed by statute in New York State. The Board does not have jurisdiction to replace a statutory scheme with a regulatory scheme.
One commentator requested that the Workers' Compensation Board evaluate effect of HIPAA on the IME law and rule. The Board is evaluating the effect of HIPAA on all phases of its operations, and will also carefully evaluate its effect on new IME law and rule.
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