BILL NUMBER:S428

TITLE OF BILL:
An act
to amend the social services law, in relation to establishing factors to
be considered when a health care practitioner  upon examination has a
different opinion from an applicant's treating health care
practitioner's opinion as to
an applicant's disability; and requiring
an explicit written
determination by the health care practitioner when the diagnoses differ

PURPOSE:
To ensure that the opinions and determinations of a public assistance
applicant's treating health care practitioner are given sufficient
weight when making disability determinations.

SUMMARY OF PROVISIONS:
Section 1 amends section 332-b of the social services law, by
which provides that if a public
assistance applicant is sent to a practitioner to determine if the
applicant has any work limitations, the practitioner must take into
account the applicant's treating health care practitioner's opinion,
and give it sufficient weight based on a number of factors.

EXISTING LAW:
              

Currently it is within the evaluating practitioner's discretion what,
if any, weight is given to the treating health care practitioner's
opinion.

JUSTIFICATION:
If an individual applying for public assistance has work limitations,
disabilities, or health issues which have been identified by their
treating health care practitioner, their diagnosis and
recommendations should be considered to be accurate, in the absence
of any contradictory findings. As the current law is written, there
is little weight given to the treating health care practitioner's
opinion, and if not supplied in a very timely fashion, is not even
considered in making a determination on work limitations.

The social services appointed examining practitioner only sees the
applicant for one short assessment, which is not always sufficient in
exploring many complicated issues related to work limitations. If the
applicant's treating health care practitioner has been following him
or her for a long period of time, they most likely have established
enough of a relationship with their patient which would allow for the
discovery of hidden disabilities that the examiner may never find.

The federal government recognizes the importance of giving sufficient
consideration to a physician's medical opinion, and they follow this
practice explicitly in their Supplemental Security Income
determination procedure, detailed in 20 CFR 416.927. This section of
federal regulation outlines Evaluating Opinion Evidence, and it is
after this federal regulation that this bill has been modeled after.


It is for this reason that if the examiner makes any findings contrary
to the treating health care practitioner's diagnosis, the reasons for
the differing diagnosis should have to be defended and explicitly
stated in writing.

LEGISLATIVE HISTORY:
2011/12 - S.1326/A.2957  - Passed Assembly
2009/10 - S.5547/A.1417A- Passed Assembly

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
90 Days.