BILL NUMBER: S6929

SPONSOR: FERNANDEZ
 
TITLE OF BILL:

An act to amend the workers' compensation law, in relation to workers'
access to treatment

 
PURPOSE:

This bill improves injured worker's access to timely and quality treat-
ment under the Workers' Compensation Law.

 
SUMMARY OF PROVISIONS:

Section 1 amends section 13-a(5) of the Workers' Compensation Law, as
amended by section 8 of part CC of chapter 55 of the laws of 2019, rais-
ing the limit for treatment costing less than $1,000 to $1,500 to be
done without prior approval and clarifying that the list of pre-author-
ized procedures shall be issued and maintained solely for the purpose of
expediting authorization of treatment of injured workers and not be used
as a basis for denying treatment not contained therein.
              

Section 2 adds paragraph (e) to Section 13-a(7) of the Workers' Compen-
sation Law allowing allows out-of-network providers of testing to be
compensated at the provider network rate negotiated by the carrier.

Section 3 is the effective date.

 
DIFFERENCE BETWEEN THE ORIGINAL AND AMENDED VERSION:

The amendment removes the original bill's section 1.

 
JUSTIFICATION:

This bill works to restore the overall goal of the Workers' Compensation
Law, which is "the provision of a swift and sure source of benefits to
injured employees or the dependents of deceased employees." Crosby v.
Workers' Comp, 57 N.Y.2d 305, 313 (N.Y. 1982).  First, this legislation
also raises the pre-authorization limit of $1,000 to $1,500 to account
for the increased prices of medical care and to help eliminate unneces-
sary delays in the provision of routine tests and procedures.

Second, this bill makes clear that the Board's "list of pre-authorized
procedures" or Medical Treatment Guidelines or "MTGs" is to be used only
as a list of treatment not requiring carrier approval, not as a means to
automatically deny any procedures not on the list. Based on industry
data, at this time, only treatments within the MTGs are receiving
authorization, which others consistently get denied as not medically
necessary despite the authorization request having come from a medical
provider. This has led to a drastic decrease in doctors willing to
participate in the Workers' Compensation system - providers often will
not perform a pre-authorized procedure without receiving authorization
for fear that the carrier will still deny the bills. The legislative
history supporting the adoption of the list of preauthorized procedures
in 2007 indicates that its purpose was to reduce impediments to prompt
diagnostic and treatment measures. The sooner injured workers receive
their treatment, the sooner they can return to work. Unfortunately, that
has not been the reality as implemented by the Board.' Due to complexity
of the MTGs and the authorization system, many injured workers and their
providers experience undue delays and have stopped working with Workers'
Compensation altogether, transferring the costs to private insurance.
Finally, this bill restores claimants' right for payment of services by
out-of-network providers the right to which was upheld by our court
system and then eliminated by the Workers' Compensation Board.

The Court in Rivera v. North Central Bronx Hospital, 101 A.D.3d 1304 (3d
Dept. 2012) determined that even if an injured worker failed to use the
diagnostic testing network, the carrier would pay the out-of-network
provider at the negotiated network rate pursuant to the language and
intent of the law. However, the Workers' Compensation Board has adopted
regulations which contravene this holding. See 12 NYCRR 440.8(c). These
regulations preclude any payment to any out-of-network provider, making
it more difficult for injured workers to obtain testing. This legis-
lation allows injured workers to obtain treatment in a timely manner,
while also reducing costs of treatment by requiring out-of-network
providers to accept payment at the carrier's negotiated network rate. i
Notably, this was the concern of the dissenting judges in Matter of
KioKigin v. New York State Workers' Compensation Board, 24 NY3d 459
(2014) where a split Court of Appeals upheld the Board's creation of the
MTGs. In the dissent, Judge Rivera noted, "to the extent the Board's
regulations establish a variance scheme that predetermines that all
treatment not included on the preauthorized list of services is presump-
tively not medically necessary, it imposed a burden on Kig in and other
claimants inconsistent with the statute's language and underlying
purpose." (Id. at 470).

 
LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately.