NY Work Comp L § 13-A (2021)
2021 New York Laws WKC - Workers' Compensation Article 2 - Compensation 13-A - Selection of Authorized Physician by Employee.

§  13-a. Selection of authorized physician by employee. (1) An injured employee may, when care is required, select to  treat  him  or  her  any physician  authorized  by the chair to render medical care, as hereafter provided. If for any reason during the period when medical treatment and care is required, the employee wishes to transfer his or  her  treatment and  care  to  another  authorized  physician,  he  or she may do so, in accordance with rules prescribed by the  chair.  In  such  instance  the remuneration  of  the  physician whose services are being dispensed with shall be  limited  to  the  value  of  treatment  rendered  at  fees  as established  in  the schedule for his or her location, unless payment in higher amounts has been approved  as  authorized  in  section  thirteen, paragraph  a.  If  a claimant shall receive treatment in any hospital or other institution operated in whole or in part by the state of New York, the  employer  shall  be  liable  for  food,  clothing  and  maintenance furnished  by the hospital or other institution to such employee. If the employee is unable due to the  nature  of  the  injury  to  select  such authorized  physician  and  the  emergency nature of the injury requires immediate medical treatment and care, or if he or she does not desire to select a physician, and in writing so advises the employer, the employer shall promptly provide him or  her  with  the  necessary  medical  care, provided however, that nothing herein contained shall operate to prevent such  employee,  when  subsequently  able  to  do so, from selecting for continuance of any medical treatment or  care  required,  any  physician authorized by the chair to render medical care as hereinafter provided.  (2)  The  chairman  shall  prescribe  the  form  of a notice informing employees of their privilege under this chapter, and such  notice  shall be  posted  and  maintained  by  the  employer in a conspicuous place or places in and about his place or places of business.  (3) The employer shall have the right  to  transfer  the  care  of  an injured employee from the attending physician, whether chosen originally by  the employee or by the employer, to another authorized physician (1) if the interest of the injured employee necessitates the transfer or (2) if the physician has not been  authorized  to  treat  injured  employees under  this  act  or (3) if he has not been authorized under this act to treat  the  particular  injury  or  condition  as  provided  by  section thirteen-b  (2).  An  authorized  physician  from whom the case has been transferred shall have the right of appeal to an  arbitration  committee as  provided  in  subdivision  two  of  section  thirteen-g  and if said arbitration committee finds that the transfer was not authorized by this section, said employer shall pay to the physician a  sum  equal  to  the total  fee  earned  by  the  physician  to  whom the care of the injured employee has been transferred, or such proportion of  said  fee  as  the arbitration committee shall deem adequate.  (4)  (a) No claim for medical or surgical treatment shall be valid and enforceable, as  against  such  employer,  or  employee,  unless  within forty-eight  hours  following  the  first treatment the physician giving such treatment furnishes to the employer and directly  to  the  chair  a preliminary  notice  of  such  injury and treatment, within fifteen days thereafter a  more  complete  report  and  subsequent  thereto  progress reports  if  requested  in  writing  by  the  chair,  board, employer or insurance carrier at intervals of not less than three weeks apart or  at less  frequent  intervals if requested on forms prescribed by the chair. The board may excuse failure to give such notices within the  designated periods when it finds it to be in the interest of justice to do so.  (b)  Upon  receipt of the notice provided for by paragraph (a) of this subdivision, the employer, the carrier, and the claimant each  shall  be entitled  to have the claimant examined by a physician authorized by the chair  in  accordance  with  sections   thirteen-b   and   one   hundred  thirty-seven  of  this  chapter, at a medical facility convenient to the claimant and in the presence of the claimant's physician, and refusal by the claimant to submit to such independent medical examination  at  such time  or  times  as  may  reasonably  be necessary in the opinion of the board, shall bar the  claimant  from  recovering  compensation  for  any period during which he or she has refused to submit to such examination. No  hospital  shall  be  required to produce the records of any claimant without receiving its customary fees or charges for reproduction of such records.  (c) Where it would place an unreasonable burden upon the  employer  or carrier  to  arrange  for, or for the claimant to attend, an independent medical examination by an authorized physician, the employer or  carrier shall  arrange  for  such  examination  to  be  performed by a qualified physician in a medical facility convenient to the claimant.  (d) The independent medical examiner shall provide  such  reports  and shall submit to investigation as required by the chair.  (e)  In  order to qualify as admissible medical evidence, for purposes of adjudicating any claim under this chapter, any  report  submitted  to the  board  by  an independent medical examiner licensed by the state of New York shall include the following:  (i) a signed statement certifying  that  the  report  is  a  full  and truthful   representation   of   the   independent   medical  examiner's professional opinion with respect to the claimant's condition:  (ii) such examiner's board issued authorization number;  (iii) the name of the individual or entity requesting the examination;  (iv) if applicable, the registration number  as  required  by  section thirteen-n of this article; and  (v) such other information as the chair may require by regulation.   Any  report  by an independent medical examiner who is not authorized, and who performs an independent medical examination in  accordance  with paragraph  (c)  of  this  subdivision,  which  is  to be used as medical evidence  under  this  chapter,  shall  include  in  the   report   such information as the chair may require by regulation.  (5)  No  claim  for  specialist  consultations,  surgical  operations, physiotherapeutic or occupational therapy procedures, x-ray examinations or special diagnostic laboratory tests costing more  than  one  thousand dollars shall be valid and enforceable, as against such employer, unless such  special  services shall have been authorized by the employer or by the board, or unless such authorization has been unreasonably  withheld, or  withheld for a period of more than thirty calendar days from receipt of a request for authorization, or  unless  such  special  services  are required in an emergency, provided, however, that the basis for a denial of  such  authorization  by  the employer must be based on a conflicting second opinion rendered by a physician  authorized  by  the  board.  The board,  with  the  approval of the superintendent of financial services, shall issue and maintain a list of pre-authorized procedures under  this section.  Such  list  of  pre-authorized  procedures shall be issued and maintained for the purpose of expediting authorization of  treatment  of injured  workers.  Such  list  of  pre-authorized  procedures  shall not prohibit varied treatment when the treating  provider  demonstrates  the appropriateness and medical necessity of such treatment.  (6)  (a)  Any  interference  by  any  person  with the selection by an injured employee of an authorized physician to treat  him,  except  when the selection is made pursuant to article ten-A of this chapter, and the improper  influencing  or  attempt by any person improperly to influence the medical opinion of any physician who  has  treated  or  examined  an injured  employee,  shall  be  a misdemeanor; provided, however, that it shall not constitute interference  or  improper  influence  if,  in  the  presence  of such injured employee's physician, an employer, his carrier or  agent   should   recommend   or   provide   information   concerning rehabilitation  services  or  the  availability  thereof  to  an injured employee or his family.  (b)  Except  as  otherwise  permitted by law, an employer, carrier, or third-party administrator shall not interfere or  attempt  to  interfere with  the  selection  by  an  injured  employee  of, or treatment by, an authorized medical provider, including by  directing  or  attempting  to direct that the injured employee seek treatment from a specific provider or  type  of  provider selected by the employer, carrier, or third-party administrator. It shall not constitute improper interference under  this paragraph  if the direction or attempt to direct the injured employee to receive  treatment  from  a  specific  provider  or  type  of   provider originates  from  the authorized medical provider while in the course of providing treatment to the injured employee.  (i) Notwithstanding any other provision in  this  chapter,  the  chair shall  by  regulation  establish  a  performance standard concerning the subject of any penalty imposed under this paragraph against an employer, carrier  or  third-party   administrator.   The   performance   standard established  by  the chair shall be used to measure compliance with this paragraph by employers, carriers  and  third-party  administrators.  The chair  shall  apply  the performance standard based on multiple factors, including  but  not  limited  to,  findings  of  improper   interference submitted  as  complaints  to  the board's monitoring unit, unreasonable objections to medical care, unwarranted objections to variances, medical billing disputes, case delays brought about by employers,  carriers  and third-party administrators, and the unreasonable denial of medical care.  (ii)  Upon  validating  an  allegation  that  the employer, carrier or third-party administrator has failed to meet the promulgated performance standard, a penalty shall be assessed by the board upon  notice  to  the employer,  carrier  or third-party administrator. The board shall impose such penalty against the carrier, employer or third-party  administrator in  the amount of fifty dollars per violation identified in subparagraph (i) of this  paragraph.  The  penalties  for  violations  identified  in subparagraph  (i)  of  this  paragraph,  may be aggregated into a single penalty  upon  a  finding  that  an  employer,  carrier  or  third-party administrator  has  interfered  with  an  injured  employee's  necessary medical treatment and care. Such aggregate penalty or  assessment  shall be  based  upon  the  number  of  violations  as  multiplied against the applicable penalty or assessment, but may be negotiated by  the  chair's designee  in  full  satisfaction  of  the  penalty  or  assessment.  Any aggregate penalty or assessment issued under  this  paragraph  shall  be issued administratively, and the chair shall, by regulation, specify the method of review or redetermination, and the presentment of evidence and objections   shall  occur  solely  upon  the  documentation.  Any  final determination shall be subject to review under section  twenty-three  of this  article  but  penalties  may  not  be  subject  to a stay. A final determination that an employer, carrier or third-party administrator has engaged in a pattern of interference with an injured worker's access  to medically  necessary  medical  care shall result in the imposition of an aggregate penalty and publication of  notice  of  such  finding  on  the board's web page.  (7)(a)  Notwithstanding  any  other  provision  of this chapter to the contrary, any insurance carrier authorized to transact the  business  of workers' compensation insurance in this state, self-insurer or the state insurance  fund  may  contract  with  a network or networks, legally and properly organized, to perform  diagnostic  tests,  x-ray  examinations, magnetic  resonance imaging, or other radiological examinations or tests  of claimants  and  may  require  claimant  to  obtain  or  undergo  such diagnostic test, x-ray examinations, magnetic resonance imaging or other radiological examinations or tests with a provider or at a facility that is  affiliated  with  the  network  or  networks  with which the carrier contracts, except if a medical emergency occurs requiring  an  immediate diagnostic  test, x-ray examination, magnetic resonance imaging or other radiological examination or test  or  if  the  network  with  which  the insurance  carrier,  self-insurer  or the state insurance fund contracts does not have a provider or facility able to perform the examination  or test within a reasonable distance from the claimant's residence or place of employment, as defined by regulation of the board.  (b)  Any  insurance  carrier, self-insurer or the state insurance fund which requires claimants to obtain or undergo  diagnostic  tests,  x-ray examinations,   magnetic   resonance   imaging   or  other  radiological examinations or tests with a provider or at a facility affiliated with a network or networks with which it contracts, must notify the claimant of the name and contact information for the network or networks at the same time the written statement of  the  claimant's  rights  as  required  by subdivision   two  of  section  one  hundred  ten  of  this  chapter  or immediately after imposing such requirement if the  time  period  within which  the  written  statement  of  the claimant's rights as required by subdivision two of section one hundred ten of this chapter has expired.  (c) At the time a request for  authorization  for  special  diagnostic tests,   x-ray   examinations,   magnetic  resonance  imaging  or  other radiological examinations  or  tests  costing  more  than  one  thousand dollars as required by subdivision five of this section is approved, the insurance  carrier,  self-insurer  or  state  insurance  fund,  or if so delegated the network with which the insurance carrier, self-insurer  or state   insurance  fund  has  contracted,  shall  notify  the  physician requesting authorization of the requirement that the claimant obtain  or undergo   the  special  diagnostic  test,  x-ray  examination,  magnetic resonance imaging or other  radiological  examination  or  test  with  a provider  or  at a facility affiliated with the network or networks with which it has contracted, the contact information for the network  and  a list  of  the  providers and facilities within the claimant's geographic location, as defined by  regulation  of  the  board.  The  claimant,  in consultation  with  the  provider  who  requested the special diagnostic test,  x-ray  examination,   magnetic   resonance   imaging   or   other radiological  test or exam, will determine the provider or facility from within the network  which  will  perform  such  diagnostic  test,  x-ray examination,   magnetic   resonance   imaging   or   other  radiological examination or test.  (d) The results of the special  diagnostic  test,  x-ray  examination, magnetic  resonance  imaging  or other radiological test or exam must be sent to the physician who requested the test or  exam  immediately  upon completion of the report detailing the results.