STATE OF NEW YORK
________________________________________________________________________
5940--C
2013-2014 Regular Sessions
IN ASSEMBLY
March 8, 2013
___________
Introduced by M. of A. BRONSON -- Multi-Sponsored by -- M. of A. KIM --
read once and referred to the Committee on Labor -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported and referred to the Committee on Codes
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee -- reported and referred to the
Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the workers' compensation law and the education law, in
relation to the care and treatment of injured employees by licensed or
certified acupuncturists
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-p to read as follows:
3 § 13-p. Care and treatment of injured employees by licensed or certi-
4 fied acupuncturists. 1. For purposes of this section: (a) the term
5 "acupuncturist" shall mean a person who is duly licensed and registered
6 as a licensed acupuncturist pursuant to article one hundred sixty of the
7 education law, or who is a certified acupuncturist pursuant to subdivi-
8 sion three of section eighty-two hundred sixteen of the education law;
9 and
10 (b) the term "chair" shall mean the chairperson of the state board of
11 acupuncture pursuant to article one hundred sixty of the education law.
12 2. (a) An injured employee, injured under circumstances which make
13 such an injury compensable under this article, may lawfully be treated
14 by an acupuncturist authorized by the chair to render acupuncture care
15 pursuant to this section. Such services shall be within the scope of the
16 profession of acupuncture as defined in subdivision one of section
17 eighty-two hundred eleven of the education law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07830-06-3
A. 5940--C 2
1 (b) Medical bureaus, medical centers jointly operated by labor and
2 management representatives, hospitals and health maintenance organiza-
3 tions, authorized to provide medical care pursuant to section thirteen-c
4 of this article, may provide acupuncture services when required,
5 provided such care is rendered by an acupuncturist as required by this
6 section.
7 (c) An acupuncturist rendering service pursuant to this section shall
8 maintain records of the patient's condition and acupuncture treatment,
9 and such records or reports shall be submitted to the chair on such
10 forms and at such times as the chair may require.
11 3. (a) An acupuncturist who is desirous of being authorized to render
12 acupuncture services under this section shall file an application for
13 authorization under this section with the acupuncture practice commit-
14 tee. The applicant shall agree to refrain from subsequently treating for
15 remuneration, as a private patient, any person seeking acupuncture
16 services, in connection with, or as a result of, any injury compensable
17 under this chapter, if he or she has been removed from the list of
18 acupuncturists authorized to render services under this chapter. This
19 agreement shall run to the benefit of the injured person so treated, and
20 shall be available as a defense in any action by such acupuncturist for
21 payment for treatment rendered by such acupuncturist after being removed
22 from the list of acupuncturists authorized to render acupuncture
23 services under this section. The acupuncture practice committee if it
24 deems such acupuncturist duly qualified shall recommend to the chair
25 that such person be authorized to render acupuncture services under this
26 section. Such recommendations shall be only advisory to the chair and
27 shall not be binding or conclusive.
28 (b) The chair shall prepare and establish a schedule for the state or
29 schedules limited to defined localities of charges and fees for acupunc-
30 ture treatment and care, to be determined in accordance with and be
31 subject to change pursuant to rules promulgated by the chair. Before
32 preparing such schedule for the state or schedules for limited locali-
33 ties the chair shall request the acupuncture practice committee to
34 submit to such chair a report on the amount of remuneration deemed by
35 such committee to be fair and adequate for the types of acupuncture
36 services to be rendered under this chapter, but consideration shall be
37 given to the view of other interested parties. The amounts payable by
38 the employer for such treatment and services shall be the fees and
39 charges established by such schedule.
40 (c) In determining the schedule or schedules as provided in paragraph
41 (b) of this subdivision, the chair shall make a distinction between
42 treatment rendered by a duly licensed and registered acupuncturist
43 subject to the provisions of article one hundred sixty of the education
44 law and a certified acupuncturist subject to the provisions of section
45 eighty-two hundred sixteen of the education law, and the chair shall
46 prepare and establish a schedule or schedules reflecting fees and charg-
47 es appropriate to the nature and scope of the treatment rendered by each
48 type of practitioner, giving due consideration to all relevant factors
49 including, but not limited to, the level of education of the practition-
50 er, the type of treatment rendered, whether the acupuncture treatment is
51 being provided as the principal treatment or as an adjunct treatment,
52 and the billing practices entailed, including whether the practitioner
53 submits one comprehensive bill or bills separately for the acupuncture
54 treatment, office visits and other items.
55 4. No claim for acupuncture services shall be valid and enforceable as
56 against the employer or employees unless within forty-eight hours
A. 5940--C 3
1 following the first treatment the acupuncturist giving such care or
2 treatment furnishes to the employer and directly to the chair a prelimi-
3 nary notice of such injury and treatment, and within fifteen days there-
4 after a more complete report and subsequent thereto progress reports as
5 requested in writing by the chair, board, employer or insurance carrier,
6 at intervals of not less than three weeks apart or at less frequent
7 intervals if requested on forms prescribed by the chair. The board may
8 excuse the failure to give such notices within the designated periods
9 when it finds it to be in the interest of justice to do so.
10 5. Fees for acupuncture services shall be payable only to a duly
11 licensed or certified acupuncturist pursuant to article one hundred
12 sixty of the education law, or to the agent, executor or administrator
13 of the estate of such acupuncturist. No acupuncturist rendering treat-
14 ment to a compensation claimant shall collect or receive a fee from such
15 claimant within this state, but shall have recourse for payment of
16 services rendered only to the employer under the provisions of this
17 section.
18 6. Whenever his or her attendance at a hearing is required, the
19 acupuncturist of the injured employee shall be entitled to receive a fee
20 from the employer in an amount to be fixed by the board, in addition to
21 any fee payable under section eight thousand one of the civil practice
22 law and rules.
23 7. (a) Unless within thirty days after a bill has been rendered to the
24 employer by the acupuncturist who has treated an injured employee, such
25 employer shall have notified the chair and such acupuncturist in writing
26 that such employer demands an impartial examination of the fairness of
27 the amount claimed by such acupuncturist for his or her services, the
28 right to such an impartial examination shall be deemed to be waived and
29 the amount claimed by such acupuncturist shall be deemed to be the fair
30 value of the services rendered. If the parties fail to agree as to the
31 acupuncture care rendered under this chapter to a claimant, such value
32 shall be decided by the acupuncture practice committee and the majority
33 decision of such committee shall be conclusive upon the parties as to
34 the value of the services rendered. The board may make an award for any
35 such bill or part thereof which remains unpaid in the same manner as an
36 award for bills rendered under subdivisions one and three of section
37 thirteen-g of this article, and such award may be collected in like
38 manner as an award of compensation. The chair shall assess the sum of
39 fifty dollars against the employer for each such award made by the
40 board, which sum shall be paid into the state treasury.
41 (b) Where an acupuncturist's bill has been determined to be due and
42 owing in accordance with the provisions of this section, the board may
43 impose a penalty of not more than one and one-half percent interest per
44 month payable to the acupuncturist in accordance with the rules and
45 regulations promulgated by the board.
46 (c) The parties to such proceeding shall each pay to the chair a sum
47 equal to five per centum of the amount payable under the decision of
48 such committee or a minimum of five dollars, whichever is greater. The
49 sums so collected shall be transferred to the state treasury to reim-
50 burse it on account of the expense of administering this section.
51 8. Within the limits prescribed by the education law for acupuncture
52 services, the report or testimony of an authorized acupuncturist
53 concerning the condition of an injured employee and treatment thereof
54 shall be deemed competent evidence and the professional opinion of the
55 acupuncturist as to causal relation and as to required treatment shall
56 be deemed competent but shall not be controlling. Nothing in this
A. 5940--C 4
1 section shall be deemed to deprive any employer or insurance carrier of
2 any right to a medical examination or presentation of medical testimony
3 now conferred by law.
4 9. The chair shall promulgate rules governing the procedure to be
5 followed by those rendering acupuncture services under this section,
6 which rules so far as practicable shall conform to the rules presently
7 in effect with reference to medical care furnished to claimants in work-
8 ers' compensation. In connection with the promulgation of such rules the
9 chair may consult the acupuncture practice committee and may take into
10 consideration the view of other interested parties.
11 10. The chair shall appoint for and with jurisdiction in the entire
12 state of New York a single acupuncture practice committee composed of
13 two licensed acupuncturists, and one duly licensed physician of the
14 state of New York. Each member of such committee shall receive compen-
15 sation either on an annual basis or on a per diem basis to be fixed by
16 the chair within amounts appropriated therefor. One of such licensed
17 acupuncturists shall be designated by the chair as a chair of such
18 acupuncture practice committee. No member of such committee shall render
19 acupuncture services under this section nor be an employer or accept or
20 participate in any fee from any insurance company authorized to write
21 workers' compensation insurance in this state or from any self-insurer,
22 whether such employment or fee relates to a workers' compensation claim
23 or otherwise. The attorney general, upon request, shall advise and
24 assist such committee.
25 11. The acupuncture practice committee shall investigate, hear and
26 make findings with respect to all charges as to professional or other
27 misconduct of any authorized acupuncturists as provided in this section
28 under rules and procedures to be prescribed by the chair and shall
29 report evidence of such misconduct, with their findings and recommenda-
30 tions with respect thereto, to the chair. The findings, decision and
31 recommendation of such acupuncture practice committee shall be advisory
32 to the chair only, and shall not be binding or conclusive upon him or
33 her. The chair shall remove from the list of acupuncturists authorized
34 to render acupuncture services under this chapter the name of any
35 acupuncturist who he or she shall find after reasonable investigation is
36 disqualified because such acupuncturist:
37 (a) has been guilty of professional or other misconduct or incompeten-
38 cy in connection with the rendering of acupuncture services,
39 (b) has exceeded the limits of his or her professional competence in
40 rendering acupuncture services under the law, or has made false state-
41 ments regarding qualifications in the application for authorization,
42 (c) has failed to submit timely, full and truthful acupuncture evalu-
43 ation and treatment reports of all findings to the employer and directly
44 to the chair of the board within the time limits provided in this
45 section,
46 (d) has rendered acupuncture services under this chapter for a fee
47 less than that fixed in the fee schedule,
48 (e) has solicited or has employed another to solicit for himself or
49 herself or for another professional treatment, examination or care of an
50 injured employee with any claim under this chapter,
51 (f) has refused to appear before or answer upon request of the chair,
52 board, acupuncture practice committee or any duly authorized officer of
53 the state, any legal question or produce any relevant book or paper
54 concerning conduct under an authorization granted under law, or
55 (g) has directly or indirectly requested, received or participated in
56 the division, transference, assignment, rebating, splitting or refunding
A. 5940--C 5
1 of a fee for, or has directly or indirectly requested, received or prof-
2 ited by means of a credit or otherwise valuable consideration as a
3 commission, discount or gratuity in connection with the treatment of a
4 workers' compensation claimant.
5 12. Any person who violates or attempts to violate, and any person who
6 aids another to violate or attempts to induce him or her to violate the
7 provisions of paragraph (g) of subdivision eleven of this section shall
8 be guilty of a misdemeanor.
9 13. Nothing in this section shall be construed as limiting in any
10 respect the power or duty of the chair to investigate instances of
11 misconduct, either before or after investigation by the acupuncture
12 practice committee, or to temporarily suspend the authorization of any
13 acupuncturist believed to be guilty of such misconduct. The provisions
14 of subdivision one of section thirteen-d of this article which are not
15 inconsistent with the provisions of this section shall be applicable as
16 if fully set forth in this section.
17 14. Nothing contained in this section shall prohibit acupuncturists
18 who practice as partners, in groups or as a professional corporation
19 from pooling fees and moneys received, either by the partnership,
20 professional corporation or group or by the individual members thereof,
21 for professional services furnished by any individual professional
22 member, or employee of such partnership, corporation or group, nor shall
23 the professionals constituting the partnerships, corporations, or groups
24 be prohibited from sharing, dividing or apportioning the fees and moneys
25 received by them or by the partnership, corporation or group in accord-
26 ance with a partnership or other agreement.
27 § 2. Subdivision 1 of section 8213 of the education law, as added by
28 chapter 772 of the laws of 1990, is amended to read as follows:
29 (1) There is hereby established within the department a state board
30 for acupuncture. The board shall consist of not less than eleven members
31 to be appointed by the board of regents on the recommendation of the
32 commissioner for the purpose of assisting the board of regents and the
33 department on matters of professional licensing and professional conduct
34 in accordance with section sixty-five hundred eight of this [chapter]
35 title, four of whom shall be licensed acupuncturists, four of whom shall
36 be licensed physicians certified to use acupuncture and three of whom
37 shall be public members representing the consumer and community. Of the
38 acupuncturists first appointed to the board, one may be a registered
39 specialist's assistant-acupuncture provided that the term of such regis-
40 tered specialist's assistant-acupuncture shall not be more than four
41 years. Of the members first appointed, three shall be appointed for a
42 one year term, three shall be appointed for a two year term and three
43 shall be appointed for a three year term, and two shall be appointed for
44 a four year term. Thereafter all members shall serve for five year
45 terms. In the event that more than eleven members are appointed, a
46 majority of the additional members shall be licensed acupuncturists. The
47 members of the board shall select one of themselves as [chairman] chair-
48 person to serve for a one year term.
49 § 3. This act shall take effect on the one hundred eightieth day after
50 it shall have become a law. Provided, that effective immediately, the
51 addition, amendment and/or repeal of any rules and regulations necessary
52 to implement the provisions of this act on its effective date are
53 authorized and directed to be completed on or before such effective
54 date.
