13 - Treatment and care of injured employees.
§ 13. Treatment and care of injured employees. (a) The employer shall promptly provide for an injured employee such medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus for such period as the nature of the injury or the process of recovery may require. The employer shall be liable for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus, as well as artificial members of the body or other devices or appliances necessary in the first instance to replace, support or relieve a portion or part of the body resulting from and necessitated by the injury of an employee, for such period as the nature of the injury or the process of recovery may require, and the employer shall also be liable for replacements or repairs of such artificial members of the body or such other devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices or appliances necessitated by ordinary wear or loss or damage to a prosthesis, with or without bodily injury to the employee. Damage to or loss of a prosthetic device shall be deemed an injury except that no disability benefits shall be payable with respect to such injury under section fifteen of this article. Such a replacement or repair of artificial members of the body or such other devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices or appliances or the providing of medical treatment and care as defined herein shall not constitute the payment of compensation under section twenty-five-a of this article. All fees and other charges for such treatment and services shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living. The chair shall prepare and establish a schedule for the state, or schedules limited to defined localities, of charges and fees for such medical treatment and care, and including all medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus in accordance with and to 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 president of the medical society of the state of New York and the president of the New York state osteopathic medical society to submit to him or her a report on the amount of remuneration deemed by such society to be fair and adequate for the types of medical care to be rendered under this chapter, but consideration shall be given to the view of other interested parties. In the case of physical therapy fees schedules the chair shall request the president of a recognized professional association representing physical therapists in the state of New York to submit to him or her a report on the amount of remuneration deemed by such association to be fair and reasonable for the type of physical therapy services rendered under this chapter, but consideration shall be given to the views of other interested parties. The chair shall also prepare and establish a schedule for the state, or schedules limited to defined localities, of charges and fees for outpatient hospital services not covered under the medical fee schedule previously referred to in this subdivision, to be determined inaccordance with and to 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 president of the hospital association of New York state to submit to him or her a report on the amount of remuneration deemed by such association to be fair and adequate for the types of hospital outpatient care to be rendered under this chapter, but consideration shall be given to the views of other interested parties. In the case of occupational therapy fees schedules the chair shall request the president of a recognized professional association representing occupational therapists in the state of New York to submit to him or her a report on the amount of remuneration deemed by such association to be fair and reasonable for the type of occupational therapy services rendered under this chapter, but consideration shall be given to the views of other interested parties. The amounts payable by the employer for such treatment and services shall be the fees and charges established by such schedule. Nothing in this schedule, however, shall prevent voluntary payment of amounts higher or lower than the fees and charges fixed therein, but no physician rendering medical treatment or care, and no physical or occupational therapist rendering their respective physical or occupational therapy services may receive payment in any higher amount unless such increased amount has been authorized by the employer, or by decision as provided in section thirteen-g of this article. Nothing in this section shall be construed as preventing the employment of a duly authorized physician on a salary basis by an authorized compensation medical bureau or laboratory. * (a-1) Notwithstanding the provisions of subdivision four of section twenty-eight hundred seven and subdivision one of section twenty-eight hundred seven-c of the public health law, payments to general hospitals for AP-DRGs 755-758 (spinal fusion; back and neck procedures), 806-807 (combined anterior and posterior spinal fusions), 836-837 (spinal procedures), and 864-865 (cervical spinal fusion) shall be at the rates of payment determined pursuant to section twenty-eight hundred seven-c of the public health law for state governmental agencies, excluding adjustments pursuant to subdivision fourteen-f of such section twenty-eight hundred seven-c, plus the provider's documented cost for any implantable hardware and instrumentation, which should be recorded under revenue code 278 on the claim, plus an additional ten percent of such documented cost not to exceed a maximum of three hundred fifty dollars. * NB Repealed March 31, 2011 (b) In the case of persons, injured outside of this state, but entitled to compensation or benefits under this chapter, the provisions as to selection of authorized physicians shall be inapplicable. In such cases the employer shall promptly provide all necessary medical treatment and care but if the employer fail to provide the same, after request by the injured employee such injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman having knowledge of such injury shall have neglected to provide the same; nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty days following the first treatment, the physician giving such treatment, furnish to the employer and the chairman a report of such injury and treatment, on a form prescribed by the chairman. Theboard may, however, by the unanimous vote of a panel of not less than three members qualified to act, excuse the failure to give such notice within twenty days when it finds it to be in the interest of justice to do so, and may, subject to the limitations contained in section twenty-eight of this chapter, make an award for the reasonable value of such medical or surgical treatment. All fees and other charges for such treatment and services, whether furnished by the employer or otherwise, shall be subject to regulation by the board as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living. (c) The liability of an employer for medical treatment as herein provided shall not be affected by the fact that his employee was injured through the fault or negligence of a third party, not in the same employ. The employer shall, however, have an additional cause of action against such third party to recover any amounts paid by him for such medical treatment, in like manner as provided in section twenty-nine of this chapter. (d) (1) In the event that an insurer or health benefits plan makes payments for medical and/or hospital services for or on behalf of an injured employee they shall be entitled to be reimbursed for such payments by the carrier or employer within the limits of the medical and hospital fee schedules if the board determines that the claim is compensable. For the purposes of this section, an insurer or health benefits plan includes a medical expense indemnity corporation, a health or hospital service corporation, a commercial insurance company licensed to write accident and health insurance in the state of New York, a health maintenance organization operating in accordance with article forty-three of the insurance law or article forty-four of the public health law, or a self-insured or self-funded health care benefits plan operated by, or on behalf of, any business, municipality or other entity (including an employee welfare fund as defined in article forty-four of the insurance law or any other union trust fund or union health benefits plan). Notwithstanding any other provision of law, in no event shall the carrier or employer be required to reimburse the insurer or health benefits plan in an amount greater than the amount paid for medical and hospital services for or on behalf of the injured employer by such corporation or company; provided, however, if the carrier or employer does not reimburse the insurer or health benefits plan within thirty days after the board determines that the claim is compensable, the carrier or employer shall reimburse the insurer or health benefits plan at the amount the carrier or employer would be obligated to reimburse the hospital or other provider of medical services if the carrier or employer made payment directly to the provider of medical and/or hospital services pursuant to this chapter (or, in the case of inpatient hospital services, pursuant to paragraphs (b) and (b-1) of subdivision one of section twenty-eight hundred seven-c of the public health law). Upon reimbursement to the insurer or health benefits plan pursuant to this subdivision, the carrier or employer shall be relieved of liability for the medical and/or hospital services for which payment has been made by the insurer or health benefits plan. (2) An insurer or health benefits plan entitled to reimbursement pursuant to paragraph one of this subdivision shall receive copies of the hearing and decision notices and shall develop with the carrier or employer its own mechanisms and standard operating procedures for payment of undisputed claims for reimbursement. In cases of disputed claims for reimbursement that are filed with the board within three years of the date of payment for services rendered by the health careprovider or within ninety days of the effective date of a chapter of the laws of nineteen hundred ninety-two, entitled "AN ACT to amend the workers' compensation law, in relation to reimbursement of insurers and health benefit plans", whichever is later, the sole remedy of the insurer or health benefit plan to recover on a claim arising pursuant to this subdivision shall be the submission of the controversy to mandatory arbitration or other alternative dispute resolution procedures as defined by rules and regulations promulgated by the chair in accordance with subdivision (h) of this section. (e) The board, on its own motion, or a referee, upon the recommendation of the compensation medical director for the board, hearing a claim for compensation may require examination of any claimant, or of the testimony, reports and exhibits, or both, by a physician especially qualified with respect to the diagnosis or treatment of the disability for which compensation is claimed; and may require a report from such physician on the diagnosis, the causal relationship between the alleged injury and subsequent disability or death, proper treatment, and the extent of the disability of such claimant. The employer or his or her insurance carrier shall pay for such examination in an amount to be directed by the chairman. The chairman may in his discretion designate physicians of outstanding qualifications in such fields of medicine as he deems essential in order to ascertain the diagnosis, the causal relationship between the alleged injury and subsequent disability, the type of medical care and operative procedure requisite in particular cases where such matters are not readily determinable by the regularly employed medical examiners of the board. Each of such physicians shall have had, prior to his or her designation, at least five years of practice in the field with respect to which he or she is designated, and shall receive a fee for each case, or shall be paid on a per diem basis, as determined by the chairman. Claimants maybe required to submit to examination by such physicians in the manner hereinbefore specified. The contents of reports of designated physicians when introduced in evidence shall constitute prima facie evidence of fact as to the matter contained therein, and the makers of such reports shall be subject to examination upon demand and shall be paid an additional fee, as determined by the chairman, for testifying in each case. (f) Copies of medical reports of claimant's attending physician or medical consultant, made pursuant to this chapter subsequent to the date of the request provided for in this subdivision and antedating not more than thirty days, shall be transmitted by the physician or consultant to the claimant's licensed representative or attorney representing the claimant before the board upon his written request therefor accompanied by a notice of his retainer and consent to such transmittal signed by the claimant. (g) Every hospital operating in the state shall, within twenty days of receiving a written request by a claimant, claimant's representative, employer, carrier or special fund created under this chapter, provide to such claimant, claimant's representative, employer, carrier or special fund for use in board proceedings the medical records of an employee who has received treatment in such hospital and who is claiming benefits under this chapter. Each hospital shall designate at least one officer or employee who shall be responsible for provision of such records on written request, and to whom the board, claimant, claimant's, employer, carrier representative or special fund may address informal inquiries regarding provision of such records. No hospital shall be required to produce the records of any claimant pursuant to this section without receiving the cost of copying suchrecords as determined by the chair. Such cost shall be paid by the requesting party except that the employer or carrier or special fund shall reimburse a claimant or claimant's representative the cost of an initial set of such records where the request is made by a claimant or claimant's representative. Should the hospital not be able to provide the requested records within twenty days, they shall notify in writing the party requesting the records of the reason why the records were not provided and the date on which they will be provided. Such date shall be within a reasonable period of time, but shall not exceed thirty days. Failure to either provide the records within twenty days or to provide a reason why the records have not been provided shall subject the hospital to a fine of two hundred dollars which shall be imposed by the chair payable to the board upon finding that this subdivision has not been complied with. No hospital shall be required to produce the records of any claimant without receiving its customary fees or charges for reproduction of such records. (h) (1) The chair shall require the performance of computer searches to identify injured employees who, with respect to the same injury or illness, have filed claims under the provisions of this chapter and made claims to, or on their behalf with, a payor of medical payments eligible for reimbursement pursuant to this section. Such searches shall be done at least quarterly upon request of payors and upon submission to the board of computer tapes containing the information the chair shall need to identify injured employees who file dual claims under this section. At least quarterly, the chair shall identify injured employees who have filed dual claims by social security number and workers' compensation board number and shall notify the payor of such results. (2) Such payor shall use the information of dual filings solely for the purpose of reimbursement from the carrier or employer. The chair, upon a finding that such entity has used the information for purposes other than reimbursement from the carrier or employer, may, after hearing, impose a penalty of not more than ten thousand dollars and may prohibit such entity from receiving information under this subdivision for up to three years. (3) The chair shall adopt rules and regulations to carry out the provisions of this section, which rules and regulations shall provide for alternative dispute resolution procedures for settlement of disputed claims for reimbursement under subdivision (d) of this section including but not limited to referral and submission of disputed claims to mandatory arbitration with private arbitration associations. Such rules and regulations may provide for a reasonable fee to be charged to payors for computer searches. Claims for computer searches submitted to the board prior to March thirty-first, nineteen hundred ninety-two, may be submitted with a payment date on or after April first, nineteen hundred eighty-eight. Claims for reimbursement submitted after March thirty-first, nineteen hundred ninety-two, shall have a payment date that is no later than three years prior to the date of submission of the claim for matching purposes to the board. If disputed, these claims shall be resolved through the dispute resolution procedures set forth in this section. Upon resolution of the reimbursement dispute in accordance with this section, the amount paid to the prevailing party shall be increased by the amount of any fee paid to the arbitrator or incurred by reason of any other alternate dispute resolution procedure. (i) (1) When a claimant or pharmacy submits a claim to the employer or its carrier for payment of prescribed medicine or for reimbursement of the cost of prescribed medicine which the employer is required to provide under this section, the employer or carrier shall pay the amount prescribed by the fee schedule adopted under section thirteen-o of thisarticle, or if the prescribed medicine is not included on the current fee schedule, the usual and customary charges for such prescribed medicine, within forty-five days of receipt of the claim, unless the liability of the employer or carrier on the claim for which the claimant seeks payment or reimbursement of payment for the prescribed medicine is not established, or the prescribed medicine is not for a causally related condition. (2) Where the liability of the employer or carrier on the claim for which the claimant seeks payment or reimbursement of payment for the prescribed medicine or reimbursement for payment of prescribed medicine is not established, or is not for a causally related condition, the employer or carrier shall pay any undisputed portion of the claim in accordance with this section and notify the claimant or pharmacy, as appropriate, in writing within forty-five days of receipt of the claim: (i) that the claim is not being paid and explaining the reasons for nonpayment; or (ii) to request all additional information reasonably needed to determine the employer's or carrier's liability for the claim. Upon receipt of the information requested in this subparagraph, the employer or carrier shall comply with paragraph one of this subdivision. (3) Each claim for payment of prescribed medicine or reimbursement for payment of prescribed medicine that is processed in violation of this section shall constitute a separate violation. In addition to the other penalties provided in this chapter, any employer or carrier that fails to reimburse the claimant or pay the pharmacy, as appropriate and as required in this section shall be obligated to pay to the claimant or pharmacy the amount prescribed on the fee schedule adopted under section thirteen-o of this article, or if the prescribed medicine is not included on the current fee schedule, the usual and customary charges for the prescribed medicine plus simple interest at the rate set forth in section five thousand four of the civil practice law and rules. (4) Nothing in this subdivision shall prohibit employers or carriers from agreeing to or arranging for direct billing by the pharmacy to the employer or carrier for the cost of prescribed medicine, in order for claimants to more promptly receive prescribed medicine for which employers and carriers are liable under this section. (5) Notwithstanding any other provision of this chapter, if an employer or carrier has contracted with a pharmacy to provide prescribed medicine to claimants, then such employer or carrier may require claimants to obtain all prescribed medicines from the pharmacy with which it has contracted, except if a medical emergency occurs and it would not be reasonably possible to obtain immediately required prescribed medicine from the pharmacy with which the employer or carrier has a contract. An employer or carrier that requires claimants to obtain prescribed medicines from a pharmacy with which it has a contract must notify claimants of the pharmacy or pharmacies with which it has a contract, the locations and addresses of the pharmacy or pharmacies, if applicable, how to initially fill and refill prescriptions through the mail, internet, telephone or other means, and any other required information that must be supplied to the pharmacy or pharmacies. If the pharmacy or pharmacies with which the employer or carrier contracts does not offer mail order service and does not have a physical location within a reasonable distance from the claimant, as defined by regulation of the board, the claimant may obtain prescribed medicines at the pharmacy or pharmacies of his or her choice and the employer or carrier will be liable for such charges in accordance with the fee schedule prescribed in section thirteen-o of this chapter.