Hamberger & Weiss LLP


Budget Legislation Expands Types of Providers Authorized to Treat Claimants and Expands Board's Power to Resolve Fee Disputes

Legislation coupled with the 2020 New York State Budget, signed into law by Governor Cuomo on 4/12/19, amends the Workers' Compensation Law to expand the types of medical providers authorized to treat injured workers. Authorized providers now include nurse practitioners, physician assistants, occupational therapists, physical therapists, acupuncturists, and licensed social workers. Authorized providers under the current law are limited to physicians, chiropractors, podiatrists, and psychologists. The new law takes effect on 1/1/2020.
The new law gives nurse practitioners nearly the same rights as physicians regarding the treatment of injured workers. They will be allowed to issue opinions on causal relationship, disability, and the degree thereof. Although this is not specifically stated in the legislation, the language of the revised statute says that reports of physical therapists, occupational therapists, acupuncturists, and physician assistants cannot be used as evidence of causal relationship or disability. Nurse practitioners and licensed social workers were left out of this limitation, despite being included in the newly expanded list of providers. From this, we conclude that nurse practitioners and licensed social workers will be allowed to opine on the issues of causal relationship and degree of disability. We expect licensed social workers would be limited to opinions on mental health conditions, consistent with their license.
There are also changes regarding referrals to physical therapists and occupational therapists. Under the old law, such referrals had to come from an authorized physician. Under the new law, physicians, physician assistants, podiatrists, and nurse practitioners may refer patients to physical or occupational therapy.
Changes to WCL Section 13-g in the new law allow the Board to rule on the cost of durable medical goods and pharmaceuticals (hereafter "medical supplies"). Under the new law, a carrier must pay or object to a bill for medical supplies within 45 days, just like the current process for bills concerning medical treatment. The new law also permits medical suppliers to initiate a single arbitrator process with the Board to resolve fee disputes.
Arbitration committees, which exist under the current law to resolve medical fee disputes for bills exceeding $1,000, are eliminated under the new law. Currently, an arbitration committee hearing such bill disputes consisted of three providers: one appointed by the local medical society or professional association where care was rendered, one appointed by the employer or carrier, and one appointed by the Board. Now, such disputes will be heard by a single arbitrator appointed by the Chair. The single arbitrator process is already in effect for bill disputes for bills of $1,000 or less or where a provider requests the single arbitrator process. Under the current law, the arbitration process was only initiated at the request of the provider who wanted a carrier's response to a bill reviewed. Now, the Board will issue regulations to determine how bill disputes will find their way into arbitration.
There is also a non-substantive change to WCL Section 13-a(5) stating that the Board's list of "pre-authorized procedures" (i.e., the Medical Treatment Guidelines), "shall be issued and maintained for the purpose of expediting authorization of treatment of injured workers." The change to Section 13-a(5) also notes that the "list of pre-authorized procedures" shall not prohibit a variance request from the treating physician where the physician demonstrates the appropriateness and medical necessity of the requested treatment.
Again, these changes take effect on 1/1/2020. For any questions about how the new workers' compensation laws will affect your claims, please do not hesitate to contact us.

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