Bill Text: NY S04547 | 2019-2020 | General Assembly | Introduced

Bill Title: Authorizes the care and treatment of injured employees by licensed or certified acupuncturists under the workers' compensation program.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-03-14 - REFERRED TO LABOR [S04547 Detail]

Download: New_York-2019-S04547-Introduced.html

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 14, 2019
        Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
          printed to be committed to the Committee on Labor
        AN ACT to amend the workers' compensation law, in relation to  the  care
          and treatment of injured employees by licensed or certified acupunctu-
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The workers' compensation law is amended by  adding  a  new
     2  section 13-q to read as follows:
     3    §  13-q. Care and treatment of injured employees by licensed or certi-
     4  fied acupuncturists. 1. Where the term "acupuncturist" is used  in  this
     5  section, such term shall mean a person who is:
     6    (a)  duly licensed and registered as a licensed acupuncturist pursuant
     7  to article one hundred sixty of the education law; or
     8    (b) a certified acupuncturist pursuant to subdivision three of section
     9  eighty-two hundred sixteen of the education law.
    10    2. (a) An injured employee, injured  under  circumstances  which  make
    11  such  an  injury compensable under this article, may lawfully be treated
    12  by an acupuncturist authorized by the chair to render  acupuncture  care
    13  pursuant to this section. Such services shall be within the scope of the
    14  profession  of  acupuncture  as  defined  in  subdivision one of section
    15  eighty-two hundred eleven of the education law.
    16    (b) Medical bureaus, medical centers jointly  operated  by  labor  and
    17  management  representatives,  hospitals and health maintenance organiza-
    18  tions, authorized to provide medical care pursuant to section thirteen-c
    19  of  this  article,  may  provide  acupuncture  services  when  required,
    20  provided  such  care is rendered by an acupuncturist as required by this
    21  section.
    22    (c) An acupuncturist rendering service pursuant to this section  shall
    23  maintain  records  of the patient's condition and acupuncture treatment,
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 4547                             2
     1  and such records or reports shall be submitted  to  the  chair  on  such
     2  forms and at such times as the chair may require.
     3    3.  (a) An acupuncturist who is desirous of being authorized to render
     4  acupuncture services under this section shall file  an  application  for
     5  authorization  under  this section with the acupuncture practice commit-
     6  tee. The applicant shall agree to refrain from subsequently treating for
     7  remuneration, as a  private  patient,  any  person  seeking  acupuncture
     8  services,  in connection with, or as a result of, any injury compensable
     9  under this chapter, if he or she has  been  removed  from  the  list  of
    10  acupuncturists  authorized  to render services under this chapter.  This
    11  agreement shall run to the benefit of the injured person so treated, and
    12  shall be available as a defense in any action by such acupuncturist  for
    13  payment for treatment rendered by such acupuncturist after being removed
    14  from  the  list  of  acupuncturists  authorized  to  render  acupuncture
    15  services under this section. The acupuncture practice  committee  if  it
    16  deems  such  acupuncturist  duly  qualified shall recommend to the chair
    17  that such person be authorized to render acupuncture services under this
    18  section.  Such recommendations shall be only advisory to the  chair  and
    19  shall not be binding or conclusive.
    20    (b)  The chair shall prepare and establish a schedule for the state or
    21  schedules limited to defined localities of charges and fees for acupunc-
    22  ture treatment and care, to be determined  in  accordance  with  and  be
    23  subject  to  change  pursuant  to rules promulgated by the chair. Before
    24  preparing such schedule for the state or schedules for  limited  locali-
    25  ties  the  chair  shall  request  the  acupuncture practice committee to
    26  submit to such chair a report on the amount of  remuneration  deemed  by
    27  such  committee  to  be  fair  and adequate for the types of acupuncture
    28  services to be rendered under this chapter, but consideration  shall  be
    29  given  to  the view of other interested parties.  The amounts payable by
    30  the employer for such treatment and  services  shall  be  the  fees  and
    31  charges established by such schedule.
    32    (c)  In determining the schedule or schedules as provided in paragraph
    33  (b) of this subdivision, the chair  shall  make  a  distinction  between
    34  treatment  rendered  by  a  duly  licensed  and registered acupuncturist
    35  subject to the provisions of article one hundred sixty of the  education
    36  law  and  a certified acupuncturist subject to the provisions of section
    37  eighty-two hundred sixteen of the education law,  and  the  chair  shall
    38  prepare and establish a schedule or schedules reflecting fees and charg-
    39  es appropriate to the nature and scope of the treatment rendered by each
    40  type  of  practitioner, giving due consideration to all relevant factors
    41  including, but not limited to, the level of education of the practition-
    42  er, the type of treatment rendered, whether the acupuncture treatment is
    43  being provided as the principal treatment or as  an  adjunct  treatment,
    44  and  the  billing practices entailed, including whether the practitioner
    45  submits one comprehensive bill or bills separately for  the  acupuncture
    46  treatment, office visits and other items.
    47    4.  (a) No claim for acupuncture services shall be valid and enforcea-
    48  ble as against the employer or employees unless within forty-eight hours
    49  following the first treatment the  acupuncturist  giving  such  care  or
    50  treatment furnishes to the employer and directly to the chair a prelimi-
    51  nary notice of such injury and treatment, and within fifteen days there-
    52  after  a more complete report and subsequent thereto progress reports as
    53  requested in writing by the chair, board, employer or insurance carrier,
    54  at intervals of not less than three weeks  apart  or  at  less  frequent
    55  intervals  if  requested on forms prescribed by the chair. The board may

        S. 4547                             3
     1  excuse the failure to give such notices within  the  designated  periods
     2  when it finds it to be in the interest of justice to do so.
     3    (b)  Upon  receipt of the notice provided for by paragraph (a) of this
     4  subdivision, the employer shall be entitled to have the  claimant  exam-
     5  ined  by an acupuncturist at a place reasonably convenient to the claim-
     6  ant and in the presence of the claimant's acupuncturist, and refusal  by
     7  the  claimant to submit to such examination at such time or times as may
     8  reasonably be necessary in the opinion of the board shall bar the claim-
     9  ant from recovering compensation, for any period during which he or  she
    10  has refused to submit to such examination.
    11    5.  Fees  for  acupuncture  services  shall  be payable only to a duly
    12  licensed or certified acupuncturist  pursuant  to  article  one  hundred
    13  sixty  of  the education law, or to the agent, executor or administrator
    14  of the estate of such acupuncturist.  No acupuncturist rendering  treat-
    15  ment to a compensation claimant shall collect or receive a fee from such
    16  claimant  within  this  state,  but  shall  have recourse for payment of
    17  services rendered only to the employer  under  the  provisions  of  this
    18  section.
    19    6.  Whenever  his  or  her  attendance  at  a hearing is required, the
    20  acupuncturist of the injured employee shall be entitled to receive a fee
    21  from the employer in an amount to be fixed by the board, in addition  to
    22  any  fee  payable under section eight thousand one of the civil practice
    23  law and rules.
    24    7. (a) Unless within thirty days after a bill has been rendered to the
    25  employer by the acupuncturist who has treated an injured employee,  such
    26  employer shall have notified the chair and such acupuncturist in writing
    27  that  such  employer demands an impartial examination of the fairness of
    28  the amount claimed by such acupuncturist for his or  her  services,  the
    29  right  to such an impartial examination shall be deemed to be waived and
    30  the amount claimed by such acupuncturist shall be deemed to be the  fair
    31  value  of the services rendered.  If the parties fail to agree as to the
    32  acupuncture care rendered under this chapter to a claimant,  such  value
    33  shall  be decided by the acupuncture practice committee and the majority
    34  decision of such committee shall be conclusive upon the  parties  as  to
    35  the  value of the services rendered. The board may make an award for any
    36  such bill or part thereof which remains unpaid in the same manner as  an
    37  award  for  bills  rendered  under subdivisions one and three of section
    38  thirteen-g of this article, and such award  may  be  collected  in  like
    39  manner  as  an  award of compensation. The chair shall assess the sum of
    40  fifty dollars against the employer for  each  such  award  made  by  the
    41  board, which sum shall be paid into the state treasury.
    42    (b)  Where  an  acupuncturist's bill has been determined to be due and
    43  owing in accordance with the provisions of this section, the  board  may
    44  impose  a penalty of not more than one and one-half percent interest per
    45  month payable to the acupuncturist in  accordance  with  the  rules  and
    46  regulations promulgated by the board.
    47    (c)  The  parties to such proceeding shall each pay to the chair a sum
    48  equal to five per centum of the amount payable  under  the  decision  of
    49  such  committee  or a minimum of five dollars, whichever is greater. The
    50  sums so collected shall be transferred to the state  treasury  to  reim-
    51  burse it on account of the expense of administering this section.
    52    8.  Within  the limits prescribed by the education law for acupuncture
    53  services,  the  report  or  testimony  of  an  authorized  acupuncturist
    54  concerning  the  condition  of an injured employee and treatment thereof
    55  shall be deemed competent evidence and the professional opinion  of  the
    56  acupuncturist  as  to causal relation and as to required treatment shall

        S. 4547                             4
     1  be deemed competent but  shall  not  be  controlling.  Nothing  in  this
     2  section  shall be deemed to deprive any employer or insurance carrier of
     3  any right to a medical examination or presentation of medical  testimony
     4  now conferred by law.
     5    9.  The  chair  shall  promulgate  rules governing the procedure to be
     6  followed by those rendering acupuncture  services  under  this  section,
     7  which  rules  so far as practicable shall conform to the rules presently
     8  in effect with reference to medical care furnished to claimants in work-
     9  ers' compensation. In connection with the promulgation of such rules the
    10  chair may consult the acupuncture practice committee and may  take  into
    11  consideration the view of other interested parties.
    12    10.  The  chair  shall appoint for and with jurisdiction in the entire
    13  state of New York a single acupuncture practice  committee  composed  of
    14  two  licensed  acupuncturists,  and  one  duly licensed physician of the
    15  state of New York. Each member of such committee shall  receive  compen-
    16  sation  either  on an annual basis or on a per diem basis to be fixed by
    17  the chair within amounts appropriated therefor.  One  of  such  licensed
    18  acupuncturists  shall  be  designated  by  the  chair as a chair of such
    19  acupuncture practice committee. No member of such committee shall render
    20  acupuncture services under this section nor be an employer or accept  or
    21  participate  in  any  fee from any insurance company authorized to write
    22  workers' compensation insurance in this state or from any  self-insurer,
    23  whether  such employment or fee relates to a workers' compensation claim
    24  or otherwise. The attorney  general,  upon  request,  shall  advise  and
    25  assist such committee.
    26    11.  The  acupuncture  practice  committee shall investigate, hear and
    27  make findings with respect to all charges as to  professional  or  other
    28  misconduct  of any authorized acupuncturists as provided in this section
    29  under rules and procedures to be  prescribed  by  the  chair  and  shall
    30  report  evidence of such misconduct, with their findings and recommenda-
    31  tions with respect thereto, to the chair.   The findings,  decision  and
    32  recommendation  of such acupuncture practice committee shall be advisory
    33  to the chair only, and shall not be binding or conclusive  upon  him  or
    34  her.  The  chair shall remove from the list of acupuncturists authorized
    35  to render acupuncture services under this chapter or  to  conduct  inde-
    36  pendent  examinations  in  accordance  with paragraph (b) of subdivision
    37  four of this section the name of any acupuncturist who he or  she  shall
    38  find   after  reasonable  investigation  is  disqualified  because  such
    39  acupuncturist:
    40    (a) has been guilty of professional or other misconduct or incompeten-
    41  cy in connection with the rendering of acupuncture services,
    42    (b) has exceeded the limits of his or her professional  competence  in
    43  rendering  acupuncture  services under the law, or has made false state-
    44  ments regarding qualifications in the application for authorization,
    45    (c) has failed to submit timely, full and truthful acupuncture  evalu-
    46  ation and treatment reports of all findings to the employer and directly
    47  to  the  chair  of  the  board  within  the time limits provided in this
    48  section,
    49    (d) has rendered acupuncture services under this  chapter  for  a  fee
    50  less than that fixed in the fee schedule,
    51    (e)  has  solicited  or has employed another to solicit for himself or
    52  herself or for another professional treatment, examination or care of an
    53  injured employee with any claim under this chapter,
    54    (f) has refused to appear before or answer upon request of the  chair,
    55  board,  acupuncture practice committee or any duly authorized officer of

        S. 4547                             5
     1  the state, any legal question or produce  any  relevant  book  or  paper
     2  concerning conduct under an authorization granted under law, or
     3    (g)  has directly or indirectly requested, received or participated in
     4  the division, transference, assignment, rebating, splitting or refunding
     5  of a fee for, or has directly or indirectly requested, received or prof-
     6  ited by means of a credit  or  otherwise  valuable  consideration  as  a
     7  commission,  discount  or gratuity in connection with the treatment of a
     8  workers' compensation claimant.
     9    12. Any person who violates or attempts to violate, and any person who
    10  aids another to violate or attempts to induce him or her to violate  the
    11  provisions  of paragraph (g) of subdivision eleven of this section shall
    12  be guilty of a misdemeanor.
    13    13. Nothing in this section shall be  construed  as  limiting  in  any
    14  respect  the  power  or  duty  of  the chair to investigate instances of
    15  misconduct, either before or  after  investigation  by  the  acupuncture
    16  practice  committee,  or to temporarily suspend the authorization of any
    17  acupuncturist believed to be guilty of such misconduct.  The  provisions
    18  of  subdivision  one of section thirteen-d of this article which are not
    19  inconsistent with the provisions of this section shall be applicable  as
    20  if fully set forth in this section.
    21    14.  Nothing  contained  in this section shall prohibit acupuncturists
    22  who practice as partners, in groups or  as  a  professional  corporation
    23  from  pooling  fees  and  moneys  received,  either  by the partnership,
    24  professional corporation or group or by the individual members  thereof,
    25  for  professional  services  furnished  by  any  individual professional
    26  member, or employee of such partnership, corporation or group, nor shall
    27  the professionals constituting the partnerships, corporations, or groups
    28  be prohibited from sharing, dividing or apportioning the fees and moneys
    29  received by them or by the partnership, corporation or group in  accord-
    30  ance with a partnership or other agreement.
    31    § 2. This act shall take effect on the one hundred eightieth day after
    32  it  shall  have  become a law. Provided, that effective immediately, the
    33  addition, amendment and/or repeal of any rules and regulations necessary
    34  to implement the provisions of  this  act  on  its  effective  date  are
    35  authorized  and  directed  to  be  completed on or before such effective
    36  date.