N.Y. Workers' Compensation Law § 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.

* NB Effective until January 1, 2028

* § 13-a. Selection of authorized provider by employee. (1) An injured

employee may, when care is required, select to treat with any provider

authorized by the chair to render medical care or treatment, as

hereafter provided. If for any reason during the period when medical

care or treatment is required, the employee wishes to transfer their

medical care or treatment to another authorized provider, they may do

so, in accordance with rules prescribed by the chair. In such instance

the remuneration of the provider whose services are being dispensed with

shall be limited to the value of treatment rendered at fees as

established in the schedule for their location, unless payment in higher

amounts has been approved as authorized in subdivision a of section

thirteen of this article. 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 provider and the emergency nature of the injury

requires immediate medical treatment and care, or if they do not desire

to select a provider, and in writing so advises the employer, the

employer shall promptly provide the employee with the necessary medical

care or treatment, 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 care or treatment required, any

provider authorized by the chair to render medical care or treatment as

hereinafter provided.

(2) The chair 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 their 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 the physician 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 of this

article 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 provider 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. A

provider's reports or records shall be considered as evidence in support

of a claim notwithstanding the provider's compliance with the foregoing

time frames.

(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 provider authorized by the

chair to perform independent medical examinations 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 provider, 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 they have 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 provider, the employer or carrier

shall arrange for such examination to be performed by a qualified

provider 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

five hundred 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 provider to treat such employee,

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 provider 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 provider, an

employer, carrier or agent should recommend or provide information

concerning rehabilitation services or the availability thereof to an

injured employee or the employee's family. It shall not be presumed that

a claimant's attorney or representative's communication with the injured

employee's treating provider was an attempt to improperly influence the

treating provider. The mere fact that a claimant's attorney or

representative and their treating provider have communicated shall not

support a finding of improper influence. The board may diminish or

preclude the opinion of a treating provider based on improper influence

only upon a determination that, due to the interference, the opinion

will not help the board understand the evidence or determine a fact in

issue.

(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 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 employee's authorized 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 or treatment, 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 or treatment.

(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 care or treatment. 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 or treatment 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 five

hundred 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

provider 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 provider who requested the test or exam immediately upon

completion of the report detailing the results.

* NB Effective January 1, 2028