WCB-12-13-00004-RP Independent Medical Examinations

1/8/14 N.Y. St. Reg. WCB-12-13-00004-RP

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 1

January 08, 2014

RULE MAKING ACTIVITIES

WORKERS' COMPENSATION BOARD

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. WCB-12-13-00004-RP

Independent Medical Examinations

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action:

Amendment of section 300.2 of Title 12 NYCRR.

Statutory authority:

Workers' Compensation Law, sections 117, 137 and 141

Subject:

Independent Medical Examinations.

Purpose:

Regulate the process for conduct and reporting of independent medical examinations.

Substance of revised rule:

The proposed amendments to section 300.2 of 12 NYCRR modify the rules governing independent medical examinations (IME), independent medical examiners, IME entities and reports made without physical examination.

Paragraphs (1) and (2) of subdivision (b) of section 300.2 of 12 NYCRR are amended to clarify that a physician or provider who has examined the claimant for the sole purpose of a consultation or diagnostic examination or test is not an attending physician or provider within the meaning of the Workers’ Compensation Law, and to clarify that a physician or provider who conducts a records review must be authorized by the Chair or the Workers’ Compensation Board (Board).

Paragraph (6) of subdivision (b) of section 300.2 of Title 12 NYCRR is repealed and a new paragraph (6) is added to provide a definition for an IME entity.

Paragraphs (9) and (11) of subdivision (b) are amended. Paragraph (9) requires that when an authorized provider is not available for a records review, then a qualified provider must be selected. Paragraph (11) has been amended to clarify that a “substantive communication” for the purposes of determining whether a request for information must be filed with the Board does not include documents that are already part of the Board’s file.

Paragraph (12) of subdivision (b) has been added to supply a definition for “Reports made without physical examination” or “Records review.”

Paragraph (3) of subdivision (c) sets forth the procedures for retaining authorization privileges and removal of a provider from the list of authorized examiners.

Paragraph (1) of subdivision (d) is amended to provide that notice of an independent medical examination must be mailed to the Board on the same day it is mailed to the claimant, that an overnight delivery service may be used, and sets forth rules for use of an overnight delivery service.

Paragraph (3) of subdivision (d) is repealed and new paragraphs (3), (4), (5) and (6) are added. Paragraphs (4) and following are renumbered. Paragraph (3) of subdivision (d) requires that information, as that term is defined, that is supplied to an independent medical examiner must be part of the Board file. The information must be submitted to the Board no later than the day that information is first sent to an independent medical examiner or IME entity. Paragraph (4) of subdivision (d) sets forth the requirements for the contents and service of the report of independent medical examination. Paragraph (5) of subdivision (d) sets for the requirements for service of requests for information. Paragraph (6) of subdivision (d) sets forth the requirement for reports filed by an IME entity, as well as stating what services may be supplied by an IME entity.

Newly renumbered paragraphs (7), (8), (10), (12) and (14) of subdivision (d) of Title 12 NYCRR are amended. Paragraph (7) of subdivision (d) clarifies the process for videotaping an examination. Paragraph (8) of subdivision (d) addresses the limited patient-physician or provider relationship that exists between a claimant and the examiner. Paragraph (10) of subdivision (d) clarifies that the reasons for use of a qualified provider are also applicable to records reviews. Paragraph (12) of subdivision (d) is amended to require that an objection that a report does not substantially comply with Workers’ Compensation Law section 137 or this section must be raised in a timely manner. Paragraph (14) states that a report must be filed within 10 business days of the examination and that a report is filed with the Board when it has been received by the Board.

Paragraph (1) of subdivision (e) is repealed and a new paragraph (1) added that describes the mandatory registration process for IME entities. Mandatory registration must occur every three years. Paragraphs (2), (3), (4) and (5) of subdivision (e) have been amended. The changes are minor and include a requirement in Paragraph (3) that an IME entity comply fully with any investigation by the Chair. New paragraph (6) has been added to subdivision (e). It describes the basis and procedures for removal of a registered IME entity. New paragraph (7) provides for imposition of a $10,000 penalty and revocation of an IME entity’s registration when the Chair finds that an IME entity has materially altered an IME report or caused a material alteration.

Revised rule compared with proposed rule:

Substantial revisions were made in section 300.2(b)(4).

Text of revised proposed rule and any required statements and analyses may be obtained from

Heather MacMaster, Workers' Compensation Board, 328 State Street, Schenectady, NY 12305-2318, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement

A revised Regulatory Impact Statement is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text clarify that exams conducted at occupational health clinics established by section 151 of the Workers’ Compensation Law are not independent medical examinations within the meaning of section 300.22 of 12 NYCRR. This change does not affect the meaning of any statements in the document.

Revised Regulatory Flexibility Analysis

A revised Regulatory Flexibility Analysis for Small Business and Local Governments is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text clarify that exams conducted at occupational health clinics established by section 151 of the Workers’ Compensation Law are not independent medical examinations within the meaning of section 300.2 of 12 NYCRR. This change does not affect the small businesses and local governments and thus do not affect the meaning of any statements in the document.

Revised Rural Area Flexibility Analysis

A revised Rural Area Flexibility Analysis is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text clarify that exams conducted at occupational health clinics established by section 151 of the Workers’ Compensation Law are not independent medical examinations within the meaning of section 300.2 of 12 NYCRR. This change does not affect people living in rural areas and thus does not affect the meaning of any statements in the document.

Revised Job Impact Statement

A revised Statement in Lieu of Job Impact Statement is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text clarify that exams conducted at occupational health clinics established by section 151 of the Workers’ Compensation Law are not independent medical examinations within the meaning of section 300.2 of 12 NYCRR. This change does not affect jobs in New York State and thus does not affect the meaning of any statements in the document.

Assessment of Public Comment

The Chair and Board received formal written comments from eleven individuals or entities.

All of the comments received were reviewed and assessed. The full Assessment of Public Comment summarized, analyzed, and responded to the comments received and it exceeds 2,000 words. This document is a summary of the full Assessment of Public Comment. A copy of the full assessment is posted on the Board’s website at http://www.wcb.ny.gov/content/main/wclaws/newlaws.jsp

Two claimants’ attorneys and a group of claimants’ attorneys objected to the addition of language to the definition of “attending physician” in subdivision (b), subparagraph (1) that stated that an attending provider does not include a provider who has examined the claimant solely for the purpose of consultation or diagnostic testing. This sentence has been moved to subsection (4) (iii) of subdivision (d) to clarify its intent. The intention of this sentence is to address which attending providers should receive copies of the report of independent medical examination, and ensure that the list of providers who must receive a copy of a report of independent medical examination is not overly broad.

Two IME entities commented that adding “records reviews” to the tasks performed by an “authorized examiner” creates confusion as to whether an examiner conducting a records review must abide by the subdivisions of the regulation applicable to independent medical examiners. The Board has not made any changes to the proposed regulation based on these comments.

A group of chiropractors commented that they were the only group of medical providers required to have two years of pre-professional study. The Board has not made any changes to the proposed regulation based on this comment.

A group of claimants’ attorneys commented that a “qualified physician” should not be permitted to conduct a records review as there is no need for a records review to be conducted outside of New York State. The Board has not made any changes to the proposed regulation based on this comment.

A group of insurers commented that the definition of “IME entity” should not permit individuals who perform independent medical examinations to register as an IME entity. The Board has not made any change to the proposed regulation in response to this comment.

Several IME entities and a group representing insurance carriers commented that the Board should clarify that the rules governing IMEs and records reviews do not apply to the carrier’s medical professionals who conduct variance reviews and optional prior approval reviews pursuant to Part 324 of 12 NYCRR. Language has been added at several places in the regulation to clarify that an authorized examiner does not include the insurance carrier’s medical professional as that term is defined in subdivision (c) of section 324.1 of 12 NYCRR.

Groups representing chiropractors commented that records reviews should not be permitted at all as such reviews are inferior to a physical examination of an injured worker. The Board has not made any change to the proposed regulation in response to this comment.

Several groups commented on the addition of a new subdivision (d), subparagraph (3) that requires that information provided to an independent medical examiner in connection with an IME shall be part of the Board file at the time it is provided to the independent medical examiner. The Board has not made any changes to the regulation based on these comments.

Two IME entities commented that the additional certification requirements required by an examiner are unnecessary as the cover sheet for the report of independent medical examination already has a certification on it. A group of claimant’s attorneys commented that the certification changes are good. The Board has not made any changes to the regulation.

The State Insurance Fund commented that requiring that records reviews be supplied 10 business days before the hearing where they will be used conflicts with the requirement in section 300.33 that requires a report of independent medical examination to be supplied within 3 days of the pre-hearing conference. To avoid the confusion of having unnecessary differing timelines, the Board has accepted this change.

A group of claimants’ attorneys commented that the failure to comply with the requirements for filing a request for information should require preclusion of the report of independent medical examination. The Board did not make any changes in response to this comment.

The Board received a number of comments on subdivision (6) governing the process for submission of reports of independent medical examinations by an IME entity. The Board did not make any changes in response to these comments.

The Board received several comments regarding the claimant’s right to videotape the independent medical examination. The Board has not made any changes to the proposed regulation in response to these comments.

The Board received several comments regarding the limited physician-patient relationship between the examiner and the claimant. The Board has not made any changes to the proposed regulation in response to these comments.

The Board received several comments regarding the time to raise an objection to a report of independent medical examination. The Board has not made any changes to the proposed regulation in response to these comments.

Several IME entities objected to the requirements for IME entities registration with the Board. The Board has not made any changes to the proposed regulation in response to these comments.

The chiropractors groups commented that an IME entity should be required to disclose if it, or an owner, officer or partner, has been the subject of any disciplinary action in any other state and that penalties for material alteration of a report of independent medical examination should be increased from ten thousand dollars to fifty thousand dollars per occurrence. The Board has not made any changes to the proposed regulation in response to these comments.

The chiropractors groups made several other comments regarding the independent medical examination process not related to a specific subdivision in the proposed regulation. The Board has not made any changes to the proposed regulation in response to these comments.