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A05940 Summary:

Add S13-p, Work Comp L; amd S8213, Ed L
Authorizes the care and treatment of injured employees by licensed or certified acupuncturists under the workers' compensation program.
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A05940 Text:

                STATE OF NEW YORK
                               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.

        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.
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