Home » 2013 Issues » March 20, 2013 » WCB-12-13-00004-P Independent Medical Examinations, Examiners, Entities, and Reports Made Without Physical Examination
WCB-12-13-00004-P Independent Medical Examinations, Examiners, Entities, and Reports Made Without Physical Examination
3/20/13 N.Y. St. Reg. WCB-12-13-00004-P
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 12
March 20, 2013
RULE MAKING ACTIVITIES
WORKERS' COMPENSATION BOARD
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. WCB-12-13-00004-P
Independent Medical Examinations, Examiners, Entities, and Reports Made Without Physical Examination
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Independent Medical Examinations, Examiners, Entities, and reports made without physical examination.
Purpose:
Clarify the process and procedure for the conduct and reporting of independent medical examinations.
Substance of proposed rule (Full text is posted at the following State website:www.wcb.ny.gov):
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 physicians 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Paragraph (6) of subdivision (b) of section 300.2 of Title 12 NYCRR is repealed and a new paragraph (6) is added to provide a definition for an IME entity.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.
Text of proposed rule and any required statements and analyses may be obtained from:
Heather MacMaster, Workers' Compensation Board, 328 State Street, Office of General Counsel, Schenectady, New York 12305-2318, (518) 486-9564, email: regulations@wcb.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
The Workers’ Compensation Board (hereinafter referred to as Board) is authorized to amend 12 NYCRR 300.2. Section 117(1) of the Workers’ Compensation Law authorizes the Chair to make reasonable regulations consistent with the provisions of the Workers' Compensation Law and the Labor Law. Section 141 of the Workers' Compensation Law authorizes the Chair to make administrative regulations and orders providing, in part, for the receipt, indexing and examining of all notices, claims and reports. Section 137 of the Workers' Compensation Law mandates requirements for the notice, conduct and reporting of independent medical examinations. Sections 13-a, 13-k, 13-l and 13-m of the Workers' Compensation Law authorize the Chair to prescribe by regulation such information as may be required of physicians, podiatrists, chiropractors and psychologists submitting reports of independent medical examinations. Section 13-n of the Workers’ Compensation Law authorizes the Chair to revoke the registration of entities that derive income from IMEs and to penalize such entities when the entity has materially altered a report of an IME or caused the material alteration of such a report.
2. Legislative objectives:
Chapter 473 of the Laws of 2000 amended Sections 13-a, 13-b, 13-k, 13-l and 13-m of the Workers' Compensation Law and added Sections 13-n and 137 to the Workers' Compensation Law to require authorization by the Chair of physicians, podiatrists, chiropractors and psychologists who conduct IMEs, guidelines for IMEs and reports, and mandatory registration with the Chair of entities that derive income from IMEs. In addition, Chapter 6 of the Laws of 2007 amended section 13-n of the Workers’ Compensation Law to permit revocation of the registration of and imposition of a penalty on entities that derive income from IMEs in certain instances. These proposed rules would amend the regulations adopted in 2001 to implement Chapter 473 of the Laws of 2000 in order: to permit independent medical examiners more time to file reports of their examinations; to ensure that all relevant medical records are made part of the Board file while eliminating the waste and expense caused by duplicate filing of records already contained in the Board file; to create a process for removal from the list of authorized providers when the provider does not meet the threshold statutory requirements for authorization; and to create a process whereby the Chair may rescind the registration of an entity that derives income from IMEs pursuant to section 13-n of the Workers’ Compensation Law.
3. Needs and benefits:
Prior to the adoption of Chapter 473 of the Laws of 2000, there were limited statutory and regulatory provisions applicable to independent medical examiners or examinations. With the passage of the law in 2000, the Legislature directed the Board to regulate authorization of independent medical examiners, conduct of independent medical examinations, provision of reports of such examinations, and registration of entities that derive income from such examinations. In 2001, the Board adopted regulations to clarify definitions, procedures and standards that were not expressly addressed by the Legislature.
Over the last ten years, the Board and its stakeholders have observed several problems with the use of independent medical examinations in the system. First, carriers have expressed concerns that IME reports are regularly precluded on procedural grounds because of the difficulty of complying with very tight notice and filing timeframes. The proposed regulations would change the timeframe to file a report of independent medical examination from ten calendar days to ten business days, which would allow ten full days to complete the process when offices are open and mail service available.
Second, observers have documented instances of poor quality exams and examiners as well as improper interference with the results of the exam by IME entities. While the Board diligently monitors the Department of Education records to ensure that all authorized providers of independent medical examinations have a valid license in New York State and required Board certifications, the existing regulation does not provide for the removal of a provider’s name from the list of those authorized to conduct independent medical examinations when he or she no longer satisfies the statutory requirements of license and Board certification. The proposed regulations authorize removal of authorization when an examiner ceases to satisfy the requirements for authorization and authorizes the Board to consider disciplinary actions taken by medical licensing authorities in other states. Subdivision (3) of Workers’ Compensation Law section 13-n, now authorizes the Board to revoke the registration of entities that derive income from the conduct of independent medical examinations when the entity has materially altered a report of independent medical examination or contributed to such alteration. As a result, the Board has developed a standard process if the Board is seeking revocation of an entity’s registration.
Third, it has become apparent that independent medical examiners and entities that derive income from independent medical examinations are duplicating the entire Board medical file and re-filing it as a supplement to the report of independent medical examination; this is wasteful and expensive for the Board as well as for the independent medical examiners. The regulations clarify that duplicate copies of existing medical records do not need to be filed with the Board, though communications between the IME entity and the examiner and other records that are not in the Board file must be submitted to the Board.
Finally, the adoption of Medical Treatment Guidelines by the Board in December 2010, has increased the prevalence of medical reports based solely on a review of records rather than a physical examination of the claimant. Reports based on a review of records are used as evidence in support of the denial of medical treatment to a claimant (they are used in response to a variance request and a request for authorization for treatment). Accordingly, it has become apparent that a review of records must adhere to minimal standards to ensure that the medical opinion is rendered by a qualified medical provider and has not been altered. These reviews of records must be arranged by entities that have registered with the Board and are fully aware of the legal and medical standards for reports generated following a review of records. In addition, to avoid further delays in the adjudication of claims, the Board will now require that such reviews of records be supplied 10 business days before the hearing where they will be presented as evidence. This affords the opposing party the ability to appear at that hearing prepared to proceed.
4. Costs:
The proposal does not alter the registration fee of $250 that is paid by IME entities. However the proposal requires that IME entities register with the Board every three years. The registration fee will be payable every three years. Currently there are one-hundred-eighty registered IME entities. Section 13-n of the Workers’ Compensation Law authorizes the Chair to impose a registration fee to be used for the purpose of administering IME entities. By requiring the registration fee of $250 to be payable every three years the Board will be able to recover a small portion of the costs associated to regulation of IME entities. This proposal will not impose any new costs on any of the other regulated parties, the Board, the State or local governments for its implementation and continuation.
It is the Board’s best estimate that the overall savings that could be achieved through the elimination of duplicate filing could range between $1.2 million and $1.6 million per year or $300,000 -$400,000 per quarter. This was determined by adding the number of IME-3 forms to the number of attachments submitted with the IME-3 in the current fiscal year, and then multiplying the result by 32.999 cents per page, which is the cost of scanning each page into an electronic case folder under the Board’s current contract with its scanning vendor.
The extension in the time to file the report from 10 days to 10 business days significantly reduces the number of reports of medical examination that are precluded for reasons that have nothing to do with the diligence and competence of the independent medical examiner. While the costs of this change are difficult to estimate, they are believed to be substantial because the change would eliminate unwarranted duplication of exams.
The removal of the name of a provider from the list of those authorized to conduct independent medical examinations will reduce the costs of administrative hearings to revoke the authorization and will reduce the cost of unnecessary litigation when a provider possesses authorization to conduct independent medical examinations but no longer has a valid license or Board certification.
The process to revoke the registration of entities that derive income from independent medical examinations that are found to have materially altered a report of independent medical examination or caused such alteration will reduce the costs associated with fraud. While it is difficult to estimate these exact costs, the cost of fraud is always significant not only to the specific claim affected but also to the integrity of the workers’ compensation system as a whole.
5. Local government mandates:
Approximately 2,300 political subdivisions currently participate as municipal employers in self-insured programs for workers' compensation coverage in New York State. These self-insured municipal employers will be affected by the proposed rule in the same manner as all other employers who are self-insured for workers’ compensation coverage.
6. Paperwork:
This proposed rule does not add any new reporting requirements. The requirements for these proposed amendments are set forth in sections 137 and section 13-n of the Workers’ Compensation Law. It is anticipated that the proposed amendment will significantly reduce the amount of paperwork currently being generated under the regulation.
7. Duplication:
The proposed rule does not duplicate or conflict with any state or federal requirements.
8. Alternatives:
One alternative discussed was to take no action. However, due to the concerns and problems raised by many participants, the Board felt it was more prudent to take action. In reviewing the law and regulations, the Board felt the proposed changes were best.
While some participants to the system recommended a longer period in which to file an IME report or that a report be deemed filed when mailed, the Board felt any time period longer than that provided would unduly delay a claim. Since IME reports are used to decide issues such as need for medical treatment, the Board felt the 10 business day rule was prudent. With respect to the suggestion that a report be deemed filed when mailed, the Board declined to follow this alternative as it is not consistent with other provisions of the regulations and WCL.
Based on comments received from participants in the system, the Board amended the regulation to permit notice of the independent medical examination to be delivered to the claimant by overnight delivery service, so long as the claimant receives such notice within the seven days required by section 137 of the Workers’ Compensation law. This change comports to similar provisions in the Civil Practice Laws and Rules.
The Board considered requiring that carriers file a list of all documents supplied to the examiner. However, as the proposed amendment provides for the examiner to list every document reviewed and for the carrier to file all medical records supplied to the examiner that are not already in the Board file with the Board prior to the independent medical examination, the Board determined that the purpose and intent regarding the Request for Information process defined in section 137 of the Workers’ Compensation Law had been met.
9. Federal standards:
There are no federal standards applicable to this proposed rule.
10. Compliance schedule:
It is expected that the affected parties will be able to comply with this change immediately.
Regulatory Flexibility Analysis
1. Effect of rule:
Approximately 2300 political subdivisions currently participate as municipal employers in self-insured programs for workers' compensation coverage in New York State. These self-insured local governments will experience no adverse effects under the proposed amendments to the rule which are designed to ease the strict technical requirements of the regulation while upholding the underlying purpose and requirements.
For the same reasons, small businesses that are self-insured will also be unaffected by the proposed rule.
Small businesses that derive income from independent medical examinations (IME entities) are a regulated party and the proposed regulation creates a process for rescinding their registration as an entity authorized to derive income from independent medical examinations. Rescinding such an entity’s registration effectively ends the entity’s ability to derive income from independent medical examinations. There are currently one-hundred-eighty IME entities registered with the Board. Since the adoption of this regulation in 2001, [5] five IME entities have had their registration rescinded and thirteen have voluntarily withdrawn their registration. The process for such rescission in the proposed regulation provides for notice and fair hearing prior to a decision regarding rescission of such registration. This protects an IME entity’s due process rights.
Individual providers of independent medical examinations who own their own practices or are engaged in partnerships or are members of corporations that conduct independent medical examinations also constitute small businesses that will be affected by the proposed rule. As stated previously, the proposed amendments are designed to ease some of the technical requirements of the existing regulations.
2. Compliance requirements:
Entities that derive income from independent medical examinations will be required to adhere to the rules governing the conduct of independent medical examinations and all other legal requirements or risk losing their registration with the Board.
3. Professional services:
It is believed that no professional services will be needed to comply with this rule.
4. Compliance costs:
This proposal will not impose any compliance costs on local governments. The proposed amendment does not increase the registration fee of $250 for IME entities. However such registration fee will be payable every three years by small businesses that are IME entities. The registration fee is intended to defray some of the Board’s costs in administering IME entities.
It is the Board’s best estimate that the overall savings that could be achieved through the implementation of this regulation could range between $1.2 million and $1.6 million per year or $300,000 -$400,000 per quarter. This was determined by adding the number of IME-3 forms to the number of attachments submitted with the IME-3, and then multiplying the result by 32.999 cents per page.
5. Economic and technological feasibility:
No implementation or technology costs are anticipated for small businesses and local governments for compliance with the proposed rule. Therefore, it will be economically and technologically feasible for small businesses and local governments affected by the proposed rule to comply with the rule.
6. Minimizing adverse impact:
This proposed rule is designed to minimize adverse impacts due to the current regulations for small businesses and local governments. This rule provides only a benefit to small businesses and local governments.
The proposed amendments do increase the registration fee for IME entities that may be small businesses. Furthermore, such increase is necessary to defray the Board’s costs for administering IME entities. Every IME entity is required to post the registration fee, thus no one group’s burden is increased. Calculation of the $250 registration fee as an annual cost is little more than $80 per year. As each independent medical examination costs at least several hundred dollars, $80 should not significantly impact even a small IME entity that is in business for a year.
In addition, several of the IME entities that have had their registration rescinded or have voluntarily withdrawn their registration, did so because they failed to pay the examiners conducting the IMEs and other bills associated with running an IME entity. The requirement that every IME entity pay a registration fee of $250 at the time it registers would discourage proliferation of IME entities that are undercapitalized.
The alternative would be to leave the registration fee as a one-time payment. This would result in the Board and ultimately the taxpayers of New York State absorbing the costs of administration of this for-profit industry.
7. Small business and local government participation:
The Board received input from a number of entities who derive income from independent medical examinations as well as providers of independent medical examinations. Not only did the Board receive written communication but met with IME entities and spoke with some examiners.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
This rule applies to all claimants, carriers, employers, self-insured employers, independent medical examiners and entities deriving income from independent medical examinations, in all areas of the state.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
All regulated parties will have additional time to file their reports. No specialized/professional services will be needed in order to comply with this proposed amendment.
3. Costs:
This proposal will not impose any compliance costs on rural areas. It is the Board’s best estimate that the overall savings that could be achieved through the implementation of this regulation with respect to reduction in duplicate filing of medical records could range between $1.2 million and $1.6 million per year or $300,000 -$400,000 per quarter. This was determined by adding the number of IME-3 forms to the number of attachments submitted with the IME-3, and then multiplying the result by 32.999 cents per page. 32.999 cents per page is the cost of scanning a single page into the Board’s electronic case folder as charged under the current vendor
4. Minimizing adverse impact:
These proposed amendments to the rule are designed to minimize adverse impact for all businesses and local government regardless of geographic location. There is no difference between the impact on rural areas and other more densely populated areas of the state.
5. Rural area participation:
The Board received input from a number of entities who derive income from independent medical examinations as well as providers of independent medical examinations. Not only did the Board receive written communication but met with IME entities and spoke with some examiners.
Job Impact Statement
The proposed amendments to the regulation will not have an adverse impact on jobs in New York State.
(1) The amendments to 300.2(b) and (d) change the regulation to require that independent medical examiners limit their review of medical reports to those reports that are already part of the Board case file. This change ensures that all parties have access to the same information in accordance with Workers’ Compensation Law § 137(1), while limiting the expense and waste caused by unnecessary duplication of records. It is not anticipated that this change will have any impact on jobs in New York State.
(2) The amendment to 300.2(c)(3) allows the Board to remove a provider from the list of those authorized to conduct independent medical examinations, following notice to the affected provider, whenever the provider fails to possess a state license and Board certifications as required by Workers’ Compensation Law § 137(3)(a). It is not anticipated that this change will have any impact on jobs in New York State.
(3) The amendment to (d)(11) makes permanent an emergency rule that has been in effect since January 2004. The change was necessary to ensure that there was sufficient time to prepare and file reports of independent medical examination following the conduct of the examination. The emergency regulation has not had any impact on jobs in New York State. Accordingly, the identical permanent regulation should not have any impact on jobs in New York State.
(4) New paragraph (e)(6) creates procedures to rescind (revoke) the registration of an IME entity. These procedures are designed to ensure that due process is observed. Commencing an action of this nature usually only occurs in extreme cases and is based upon noncompliance with the requirements of Workers’ Compensation Law § 137, and/or violations of Workers’ Compensation Law § 13-a(6) and/or new subparagraph (3) of § 13-n of the Workers’ Compensation Law. While there may be an adverse impact on jobs at a given IME entity when its registration is rescinded (revoked) by the Board, rescission (revocation) of registration is a necessary safeguard to protect injured workers, health care providers and insurance carriers from recalcitrant or fraudulent IME entities. Further, the rescission (revocation) of an IME entity will not affect the independent medical examiner’s ability to continue to provide independent medical examination services since the Board separately authorizes all such health care providers and recognizes their services by their individual license and authorization number, not by their affiliation with an IME entity. Rescission (revocation) of the registration of an IME entity is authorized by subparagraph (3) of section 13-n and 141 of the Workers’ Compensation Law and these proposed changes simply add the procedures to be followed by the Board. Thus the regulation itself should have no impact on jobs in New York State.
