S T A T E O F N E W Y O R K
________________________________________________________________________
3056
2011-2012 Regular Sessions
I N S E N A T E
February 7, 2011
___________
Introduced by Sens. KLEIN, HASSELL-THOMPSON, OPPENHEIMER -- read twice
and ordered printed, and when printed to be committed to the Committee
on Labor
AN ACT to amend the workers' compensation law, in relation to the care
and treatment of injured employees by certain licensed clinical social
workers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "injured
workers assistance act".
S 2. The workers' compensation law is amended by adding a new section
13-p to read as follows:
S 13-P. CARE AND TREATMENT OF INJURED EMPLOYEES BY CERTAIN LICENSED
CLINICAL SOCIAL WORKERS. 1. WHERE THE TERM "CLINICAL SOCIAL WORKER" IS
USED IN THIS SECTION, SUCH TERM SHALL MEAN A PERSON WHO IS DULY LICENSED
AND REGISTERED AS A LICENSED CLINICAL SOCIAL WORKER PURSUANT TO ARTICLE
ONE HUNDRED FIFTY-FOUR OF THE EDUCATION LAW.
2. (A) AN INJURED EMPLOYEE, INJURED UNDER CIRCUMSTANCES WHICH MAKE
SUCH AN INJURY COMPENSABLE UNDER THIS ARTICLE, MAY LAWFULLY BE TREATED,
UPON THE REFERRAL OF AN AUTHORIZED PHYSICIAN, BY A LICENSED CLINICAL
SOCIAL WORKER AUTHORIZED BY THE CHAIR TO RENDER SOCIAL WORK CARE PURSU-
ANT TO THIS SECTION. SUCH SERVICES SHALL BE WITHIN THE SCOPE OF LICENSED
CLINICAL SOCIAL WORK AS DEFINED IN SUBDIVISION TWO OF SECTION
SEVENTY-SEVEN HUNDRED ONE OF THE EDUCATION LAW.
(B) MEDICAL BUREAUS, MEDICAL CENTERS JOINTLY OPERATED BY LABOR AND
MANAGEMENT REPRESENTATIVES, HOSPITALS AND HEALTH MAINTENANCE ORGANIZA-
TIONS, AUTHORIZED TO PROVIDE MEDICAL CARE PURSUANT TO SECTION THIRTEEN-C
OF THIS ARTICLE, MAY PROVIDE CLINICAL SOCIAL WORK SERVICES WHEN
REQUIRED, UPON THE REFERRAL OF AN AUTHORIZED PHYSICIAN, PROVIDED SUCH
CARE IS RENDERED BY A DULY REGISTERED, LICENSED AND AUTHORIZED CLINICAL
SOCIAL WORKER AS REQUIRED BY THIS SECTION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04120-01-1
S. 3056 2
(C) A LICENSED CLINICAL SOCIAL WORKER RENDERING SERVICE PURSUANT TO
THIS SECTION SHALL MAINTAIN RECORDS OF THE PATIENT'S CONDITION AND CLIN-
ICAL SOCIAL WORK TREATMENT, AND SUCH RECORDS OR REPORTS SHALL BE SUBMIT-
TED TO THE CHAIR ON SUCH FORMS AND AT SUCH TIMES AS THE CHAIR MAY
REQUIRE.
3. A LICENSED CLINICAL SOCIAL WORKER WHO IS DESIROUS OF BEING AUTHOR-
IZED TO RENDER CLINICAL SOCIAL WORK SERVICES UNDER THIS SECTION SHALL
FILE AN APPLICATION FOR AUTHORIZATION UNDER THIS SECTION WITH THE CLIN-
ICAL SOCIAL WORK PRACTICE COMMITTEE. THE APPLICANT SHALL AGREE TO
REFRAIN FROM SUBSEQUENTLY TREATING FOR REMUNERATION, AS A PRIVATE
PATIENT, ANY PERSON SEEKING CLINICAL SOCIAL WORK SERVICES, IN CONNECTION
WITH, OR AS A RESULT OF, ANY INJURY COMPENSABLE UNDER THIS CHAPTER, IF
HE OR SHE HAS BEEN REMOVED FROM THE LIST OF CLINICAL SOCIAL WORKERS
AUTHORIZED TO RENDER SERVICES UNDER THIS CHAPTER. THIS AGREEMENT SHALL
RUN TO THE BENEFIT OF THE INJURED PERSON SO TREATED, AND SHALL BE AVAIL-
ABLE AS A DEFENSE IN ANY ACTION BY SUCH CLINICAL SOCIAL WORKER FOR
PAYMENT FOR TREATMENT RENDERED BY SUCH CLINICAL SOCIAL WORKER AFTER
BEING REMOVED FROM THE LIST OF CLINICAL SOCIAL WORKERS AUTHORIZED TO
RENDER CLINICAL SOCIAL WORK SERVICES UNDER THIS SECTION. THE CLINICAL
SOCIAL WORK PRACTICE COMMITTEE, IF IT DEEMS SUCH LICENSED CLINICAL
SOCIAL WORKER DULY QUALIFIED, SHALL RECOMMEND TO THE CHAIR THAT SUCH
PERSON BE AUTHORIZED TO RENDER CLINICAL SOCIAL WORK SERVICES UNDER THIS
SECTION. SUCH RECOMMENDATIONS SHALL BE ONLY ADVISORY TO THE CHAIR AND
SHALL NOT BE BINDING OR CONCLUSIVE. THE CHAIR SHALL PREPARE AND ESTAB-
LISH A SCHEDULE FOR THE STATE OR SCHEDULES LIMITED TO DEFINED LOCALITIES
OF CHARGES AND FEES FOR CLINICAL SOCIAL WORK TREATMENT AND CARE, TO BE
DETERMINED IN ACCORDANCE WITH AND BE SUBJECT TO CHANGE PURSUANT TO RULES
PROMULGATED BY THE CHAIR. BEFORE PREPARING SUCH SCHEDULE FOR THE STATE
OR SCHEDULES FOR LIMITED LOCALITIES THE CHAIR SHALL REQUEST THE CLINICAL
SOCIAL WORK PRACTICE COMMITTEE TO SUBMIT TO SUCH CHAIR A REPORT ON THE
AMOUNT OF REMUNERATION DEEMED BY SUCH COMMITTEE TO BE FAIR AND ADEQUATE
FOR THE TYPES OF CLINICAL SOCIAL WORK SERVICES TO BE RENDERED UNDER THIS
CHAPTER, BUT CONSIDERATION SHALL BE GIVEN TO THE VIEW OF OTHER INTER-
ESTED PARTIES. THE AMOUNTS PAYABLE BY THE EMPLOYER FOR SUCH TREATMENT
AND SERVICES SHALL BE THE FEES AND CHARGES ESTABLISHED BY SUCH SCHEDULE.
4. (A) NO CLAIM FOR CLINICAL SOCIAL WORK SERVICES SHALL BE VALID AND
ENFORCEABLE AS AGAINST THE EMPLOYER OR EMPLOYEES UNLESS WITHIN
FORTY-EIGHT HOURS FOLLOWING THE FIRST TREATMENT THE CLINICAL SOCIAL
WORKER GIVING SUCH CARE OR TREATMENT FURNISHES TO THE EMPLOYER AND
DIRECTLY TO THE CHAIR A PRELIMINARY NOTICE OF SUCH INJURY AND TREATMENT,
AND WITHIN FIFTEEN DAYS THEREAFTER A MORE COMPLETE REPORT AND SUBSEQUENT
THERETO PROGRESS REPORTS AS REQUESTED IN WRITING BY THE CHAIR, BOARD,
EMPLOYER OR INSURANCE CARRIER, AT INTERVALS OF NOT LESS THAN THREE WEEKS
APART OR AT LESS FREQUENT INTERVALS IF REQUESTED ON FORMS PRESCRIBED BY
THE CHAIR. THE BOARD MAY EXCUSE THE FAILURE TO GIVE SUCH NOTICES WITHIN
THE DESIGNATED PERIODS WHEN IT FINDS IT TO BE IN THE INTEREST OF JUSTICE
TO DO SO.
(B) UPON RECEIPT OF THE NOTICE PROVIDED FOR BY PARAGRAPH (A) OF THIS
SUBDIVISION, THE EMPLOYER SHALL BE ENTITLED TO HAVE THE CLAIMANT EXAM-
INED BY A LICENSED CLINICAL SOCIAL WORKER AT A PLACE REASONABLY CONVEN-
IENT TO THE CLAIMANT AND IN THE PRESENCE OF THE CLAIMANT'S CLINICAL
SOCIAL WORKER, AND REFUSAL BY THE CLAIMANT TO SUBMIT TO SUCH EXAMINATION
AT SUCH TIME OR TIMES AS MAY REASONABLY BE NECESSARY IN THE OPINION OF
THE BOARD SHALL BAR THE CLAIMANT FROM RECOVERING COMPENSATION, FOR ANY
PERIOD DURING WHICH HE OR SHE HAS REFUSED TO SUBMIT TO SUCH EXAMINATION.
S. 3056 3
5. FEES FOR CLINICAL SOCIAL WORK SERVICES SHALL BE PAYABLE ONLY TO A
DULY LICENSED CLINICAL SOCIAL WORKER AS LICENSED IN ARTICLE ONE HUNDRED
FIFTY-FOUR OF THE EDUCATION LAW, OR TO THE AGENT, EXECUTOR OR ADMINIS-
TRATOR OF THE ESTATE OF SUCH LICENSED CLINICAL SOCIAL WORKER. NO
LICENSED CLINICAL SOCIAL WORKER RENDERING TREATMENT TO A COMPENSATION
CLAIMANT SHALL COLLECT OR RECEIVE A FEE FROM SUCH CLAIMANT WITHIN THIS
STATE, BUT SHALL HAVE RECOURSE FOR PAYMENT OF SERVICES RENDERED ONLY TO
THE EMPLOYER UNDER THE PROVISIONS OF THIS SECTION.
6. WHENEVER HIS OR HER ATTENDANCE AT A HEARING IS REQUIRED, THE
LICENSED CLINICAL SOCIAL WORKER OF THE INJURED EMPLOYEE SHALL BE ENTI-
TLED TO RECEIVE A FEE FROM THE EMPLOYER IN AN AMOUNT TO BE FIXED BY THE
BOARD, IN ADDITION TO ANY FEE PAYABLE UNDER SECTION EIGHT THOUSAND ONE
OF THE CIVIL PRACTICE LAW AND RULES.
7. (A) UNLESS WITHIN THIRTY DAYS AFTER A BILL HAS BEEN RENDERED TO THE
EMPLOYER BY THE LICENSED CLINICAL SOCIAL WORKER WHO HAS TREATED AN
INJURED EMPLOYEE, SUCH EMPLOYER SHALL HAVE NOTIFIED THE CHAIR AND SUCH
CLINICAL SOCIAL WORKER IN WRITING THAT SUCH EMPLOYER DEMANDS AN IMPAR-
TIAL EXAMINATION OF THE FAIRNESS OF THE AMOUNT CLAIMED BY SUCH CLINICAL
SOCIAL WORKER FOR HIS OR HER SERVICES, THE RIGHT TO SUCH AN IMPARTIAL
EXAMINATION SHALL BE DEEMED TO BE WAIVED AND THE AMOUNT CLAIMED BY SUCH
CLINICAL SOCIAL WORKER SHALL BE DEEMED TO BE THE FAIR VALUE OF THE
SERVICES RENDERED. IF THE PARTIES FAIL TO AGREE AS TO THE SOCIAL WORK
CARE RENDERED UNDER THIS CHAPTER TO A CLAIMANT, SUCH VALUE SHALL BE
DECIDED BY THE SOCIAL WORK PRACTICE COMMITTEE AND THE MAJORITY DECISION
OF SUCH COMMITTEE SHALL BE CONCLUSIVE UPON THE PARTIES AS TO THE VALUE
OF THE SERVICES RENDERED. THE BOARD MAY MAKE AN AWARD FOR ANY SUCH BILL
OR PART THEREOF WHICH REMAINS UNPAID IN THE SAME MANNER AS AN AWARD FOR
BILLS RENDERED UNDER SUBDIVISIONS ONE AND THREE OF SECTION THIRTEEN-G OF
THIS ARTICLE, AND SUCH AWARD MAY BE COLLECTED IN LIKE MANNER AS AN AWARD
OF COMPENSATION. THE CHAIR SHALL ASSESS THE SUM OF FIFTY DOLLARS AGAINST
THE EMPLOYER FOR EACH SUCH AWARD MADE BY THE BOARD, WHICH SUM SHALL BE
PAID INTO THE STATE TREASURY.
(B) WHERE A LICENSED CLINICAL SOCIAL WORKER'S BILL HAS BEEN DETERMINED
TO BE DUE AND OWING IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION,
THE BOARD MAY IMPOSE A PENALTY OF NOT MORE THAN ONE AND ONE-HALF PERCENT
INTEREST PER MONTH PAYABLE TO THE LICENSED CLINICAL SOCIAL WORKER IN
ACCORDANCE WITH THE RULES AND REGULATIONS PROMULGATED BY THE BOARD.
(C) THE PARTIES TO SUCH PROCEEDING SHALL EACH PAY TO THE CHAIR A SUM
EQUAL TO FIVE PER CENTUM OF THE AMOUNT PAYABLE UNDER THE DECISION OF
SUCH COMMITTEE OR A MINIMUM OF FIVE DOLLARS, WHICHEVER IS GREATER. THE
SUMS SO COLLECTED SHALL BE TRANSFERRED TO THE STATE TREASURY TO REIM-
BURSE IT ON ACCOUNT OF THE EXPENSE OF ADMINISTERING THIS SECTION.
8. WITHIN THE LIMITS PRESCRIBED BY THE EDUCATION LAW FOR LICENSED
CLINICAL SOCIAL WORK SERVICES, THE REPORT OR TESTIMONY OF AN AUTHORIZED
CLINICAL SOCIAL WORKER CONCERNING THE CONDITION OF AN INJURED EMPLOYEE
AND TREATMENT THEREOF SHALL BE DEEMED COMPETENT EVIDENCE AND THE PROFES-
SIONAL OPINION OF THE LICENSED CLINICAL SOCIAL WORKER AS TO CAUSAL
RELATION AND AS TO REQUIRED TREATMENT SHALL BE DEEMED COMPETENT BUT
SHALL NOT BE CONTROLLING. NOTHING IN THIS SECTION SHALL BE DEEMED TO
DEPRIVE ANY EMPLOYER OR INSURANCE CARRIER OF ANY RIGHT TO A MEDICAL
EXAMINATION OR PRESENTATION OF MEDICAL TESTIMONY NOW CONFERRED BY LAW.
9. THE CHAIR SHALL PROMULGATE RULES GOVERNING THE PROCEDURE TO BE
FOLLOWED BY THOSE RENDERING CLINICAL SOCIAL WORK SERVICES UNDER THIS
SECTION, WHICH RULES SO FAR AS PRACTICABLE SHALL CONFORM TO THE RULES
PRESENTLY IN EFFECT WITH REFERENCE TO MEDICAL CARE FURNISHED TO CLAIM-
ANTS IN WORKERS' COMPENSATION. IN CONNECTION WITH THE PROMULGATION OF
S. 3056 4
SUCH RULES THE CHAIR MAY CONSULT THE CLINICAL SOCIAL WORK PRACTICE
COMMITTEE AND MAY TAKE INTO CONSIDERATION THE VIEW OF OTHER INTERESTED
PARTIES.
10. THE CHAIR SHALL APPOINT FOR AND WITH JURISDICTION IN THE ENTIRE
STATE OF NEW YORK A SINGLE CLINICAL SOCIAL WORK PRACTICE COMMITTEE
COMPOSED OF TWO CLINICAL LICENSED SOCIAL WORKERS, AND ONE DULY LICENSED
PHYSICIAN OF THE STATE OF NEW YORK. EACH MEMBER OF SUCH COMMITTEE SHALL
RECEIVE COMPENSATION EITHER ON AN ANNUAL BASIS OR ON A PER DIEM BASIS TO
BE FIXED BY THE CHAIR WITHIN AMOUNTS APPROPRIATED THEREFOR. ONE OF SUCH
LICENSED CLINICAL SOCIAL WORKERS SHALL BE DESIGNATED BY THE CHAIR AS A
CHAIR OF SUCH CLINICAL SOCIAL WORK PRACTICE COMMITTEE. NO MEMBER OF SUCH
COMMITTEE SHALL RENDER CLINICAL SOCIAL WORK SERVICES UNDER THIS SECTION
NOR BE AN EMPLOYER OR ACCEPT OR PARTICIPATE IN ANY FEE FROM ANY INSUR-
ANCE COMPANY AUTHORIZED TO WRITE WORKERS' COMPENSATION INSURANCE IN THIS
STATE OR FROM ANY SELF-INSURER, WHETHER SUCH EMPLOYMENT OR FEE RELATES
TO A WORKERS' COMPENSATION CLAIM OR OTHERWISE. THE ATTORNEY GENERAL,
UPON REQUEST, SHALL ADVISE AND ASSIST SUCH COMMITTEE.
11. THE CLINICAL SOCIAL WORK PRACTICE COMMITTEE SHALL INVESTIGATE,
HEAR AND MAKE FINDINGS WITH RESPECT TO ALL CHARGES AS TO PROFESSIONAL OR
OTHER MISCONDUCT OF ANY AUTHORIZED CLINICAL SOCIAL WORKER AS PROVIDED IN
THIS SECTION UNDER RULES AND PROCEDURES TO BE PRESCRIBED BY THE CHAIR
AND SHALL REPORT EVIDENCE OF SUCH MISCONDUCT, WITH THEIR FINDINGS AND
RECOMMENDATIONS WITH RESPECT THERETO, TO THE CHAIR. THE FINDINGS, DECI-
SION AND RECOMMENDATION OF SUCH CLINICAL SOCIAL WORK PRACTICE COMMITTEE
SHALL BE ADVISORY TO THE CHAIR ONLY, AND SHALL NOT BE BINDING OR CONCLU-
SIVE UPON HIM OR HER. THE CHAIR SHALL REMOVE FROM THE LIST OF LICENSED
CLINICAL SOCIAL WORKERS AUTHORIZED TO RENDER CLINICAL SOCIAL WORK
SERVICES UNDER THIS CHAPTER OR TO CONDUCT INDEPENDENT EXAMINATIONS IN
ACCORDANCE WITH PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION THE
NAME OF ANY CLINICAL SOCIAL WORKER WHO HE OR SHE SHALL FIND AFTER
REASONABLE INVESTIGATION IS DISQUALIFIED BECAUSE SUCH CLINICAL SOCIAL
WORKER:
(A) HAS BEEN GUILTY OF PROFESSIONAL OR OTHER MISCONDUCT OR INCOMPETEN-
CY IN CONNECTION WITH THE RENDERING OF CLINICAL SOCIAL WORK SERVICES,
(B) HAS EXCEEDED THE LIMITS OF HIS OR HER PROFESSIONAL COMPETENCE IN
RENDERING CLINICAL SOCIAL WORK SERVICES UNDER THE LAW, OR HAS MADE FALSE
STATEMENTS REGARDING QUALIFICATIONS IN THE APPLICATION FOR AUTHORI-
ZATION,
(C) HAS FAILED TO SUBMIT TIMELY, FULL AND TRUTHFUL CLINICAL SOCIAL
WORK EVALUATION AND TREATMENT REPORTS OF ALL FINDINGS TO THE EMPLOYER
AND DIRECTLY TO THE CHAIR OF THE BOARD WITHIN THE TIME LIMITS PROVIDED
IN THIS SECTION,
(D) HAS RENDERED CLINICAL SOCIAL WORKER SERVICES UNDER THIS CHAPTER
FOR A FEE LESS THAN THAT FIXED IN THE FEE SCHEDULE,
(E) HAS SOLICITED OR HAS EMPLOYED ANOTHER TO SOLICIT FOR
HIMSELF/HERSELF OR FOR ANOTHER PROFESSIONAL TREATMENT, EXAMINATION OR
CARE OF AN INJURED EMPLOYEE WITH ANY CLAIM UNDER THIS CHAPTER,
(F) HAS REFUSED TO APPEAR BEFORE OR ANSWER UPON REQUEST OF THE CHAIR,
BOARD, CLINICAL SOCIAL WORK PRACTICE COMMITTEE OR ANY DULY AUTHORIZED
OFFICER OF THE STATE, ANY LEGAL QUESTION OR PRODUCE ANY RELEVANT BOOK OR
PAPER CONCERNING CONDUCT UNDER AN AUTHORIZATION GRANTED UNDER LAW, OR
(G) HAS DIRECTLY OR INDIRECTLY REQUESTED, RECEIVED OR PARTICIPATED IN
THE DIVISION, TRANSFERENCE, ASSIGNMENT, REBATING, SPLITTING OR REFUNDING
OF A FEE FOR, OR HAS DIRECTLY OR INDIRECTLY REQUESTED, RECEIVED OR PROF-
ITED BY MEANS OF A CREDIT OR OTHERWISE VALUABLE CONSIDERATION AS A
S. 3056 5
COMMISSION, DISCOUNT OR GRATUITY IN CONNECTION WITH THE TREATMENT OF A
WORKERS' COMPENSATION CLAIMANT.
12. ANY PERSON WHO VIOLATES OR ATTEMPTS TO VIOLATE, AND ANY PERSON WHO
AIDS ANOTHER TO VIOLATE OR ATTEMPTS TO INDUCE HIM OR HER TO VIOLATE THE
PROVISIONS OF PARAGRAPH (G) OF SUBDIVISION ELEVEN OF THIS SECTION SHALL
BE GUILTY OF A MISDEMEANOR.
13. NOTHING IN THIS SECTION SHALL BE CONSTRUED AS LIMITING IN ANY
RESPECT THE POWER OR DUTY OF THE CHAIR TO INVESTIGATE INSTANCES OF
MISCONDUCT, EITHER BEFORE OR AFTER INVESTIGATION BY THE CLINICAL SOCIAL
WORK PRACTICE COMMITTEE, OR TO TEMPORARILY SUSPEND THE AUTHORIZATION OF
ANY LICENSED CLINICAL SOCIAL WORKER BELIEVED TO BE GUILTY OF SUCH
MISCONDUCT. THE PROVISIONS OF SUBDIVISION ONE OF SECTION THIRTEEN-D OF
THIS ARTICLE WHICH ARE NOT INCONSISTENT WITH THE PROVISIONS OF THIS
SECTION SHALL BE APPLICABLE AS IF FULLY SET FORTH IN THIS SECTION.
14. NOTHING CONTAINED IN THIS SECTION SHALL PROHIBIT CLINICAL SOCIAL
WORKERS WHO PRACTICE AS PARTNERS, IN GROUPS OR AS A PROFESSIONAL CORPO-
RATION FROM POOLING FEES AND MONEYS RECEIVED, EITHER BY THE PARTNERSHIP,
PROFESSIONAL CORPORATION OR GROUP OR BY THE INDIVIDUAL MEMBERS THEREOF,
FOR PROFESSIONAL SERVICES FURNISHED BY ANY INDIVIDUAL PROFESSIONAL
MEMBER, OR EMPLOYEE OF SUCH PARTNERSHIP, CORPORATION OR GROUP, NOR SHALL
THE PROFESSIONALS CONSTITUTING THE PARTNERSHIPS, CORPORATIONS, OR GROUPS
BE PROHIBITED FROM SHARING, DIVIDING OR APPORTIONING THE FEES AND MONEYS
RECEIVED BY THEM OR BY THE PARTNERSHIP, CORPORATION OR GROUP IN ACCORD-
ANCE WITH A PARTNERSHIP OR OTHER AGREEMENT.
S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law. Effective immediately, the addition, amend-
ment and/or repeal of any rules and regulations necessary to implement
the provisions of this act on its effective date are authorized to be
made on or before such effective date.