BILL NUMBER: S6217
SPONSOR: FERNANDEZ
 
TITLE OF BILL:
An act to amend the workers' compensation law, in relation to workers'
access to treatment
 
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to improve injured worker's access to timely
and quality treatment 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.
 
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. Cr.osby v.
Workers' Comp, 57 N.Y.2d 305, 313 (N.Y. 1982). First, this legislation
raises the pre-authorization limit of $1,000 to $1,500 to account for
the increased prices of medical care and to help eliminate unnecessary
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 (MTGs) is to be used only as
a list of treatments 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 preau-
thorized 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 the 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
(3dDept. 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. These regulations preclude
any payment to any out-of-network provider, making it more difficult for
injured workers to obtain testing. This legislation allows injured work-
ers 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. 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 preau-
thorized list of services is presumptively not medically necessary, it
imposed a burden on Kigin and other claimants inconsistent
with the statute's language and underlying purpose.
 
PRIOR LEGISLATIVE HISTORY:
2024: Same Bill (A.6832-A/Lunsford) Vetoed - Veto Memo 62
2023: Same Bill (A.6832-A/Lunsford) Died in Labor
 
FISCAL IMPLICATIONS:
None to the State.
 
EFFECTIVE DATE:
This act shall take effect immediately.