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A09721 Summary:

Add S13-p, amd S2, 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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A09721 Text:

                STATE OF NEW YORK
                                                                   R. R. 216
                   IN ASSEMBLY
                                      May 20, 2014
        Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
          tee on Labor -- reported and referred to the  Committee  on  Codes  --
          reported  and referred to the Committee on Ways and Means -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted

          to said committee -- reported and referred to the Committee  on  Rules
          -- amended on the special order of third reading, ordered reprinted as
          amended, retaining its place on the special order of third reading
        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, the term "acupunc-
     5  turist"  shall  mean  a  person who is duly licensed and registered as a

     6  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    2.  (a)  An  injured  employee, injured under circumstances which make
    11  such an injury compensable under this article, may lawfully  be  treated
    12  by  an  acupuncturist authorized by the chair to render acupuncture care
    13  pursuant to this section. Such services shall be within the scope of the
    14  profession of acupuncture as  defined  in  subdivision  one  of  section
    15  eighty-two  hundred eleven of the education law.  Acupuncturists author-
    16  ized by the chair to provide treatment pursuant to this  section,  shall

    17  not  be  authorized  to perform independent medical examinations, except
    18  for independent medical exams related to the need of acupuncture  treat-
    19  ments.
    20    (b)  Medical  bureaus,  medical  centers jointly operated by labor and
    21  management representatives, hospitals and health  maintenance  organiza-
    22  tions,  authorized  to  provide  medical  care,  may provide acupuncture
    23  services when required, provided such care is rendered by an  acupunctu-
    24  rist as required by this section.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 9721--B                          2

     1    (c)  An acupuncturist rendering service pursuant to this section shall
     2  maintain records of the patient's condition and  acupuncture  treatment,
     3  and  such  records  or  reports  shall be submitted to the chair on such
     4  forms and at such times as the chair may require.
     5    3.  (a) An acupuncturist who is desirous of being authorized to render
     6  acupuncture services under this section shall file  an  application  for
     7  authorization  under  this section with the acupuncture practice commit-
     8  tee. The applicant shall agree to refrain from subsequently treating for
     9  remuneration, as a  private  patient,  any  person  seeking  acupuncture
    10  services,  in connection with, or as a result of, any injury compensable

    11  under this chapter, if he or she has  been  removed  from  the  list  of
    12  acupuncturists  authorized  to render services under this chapter.  This
    13  agreement shall run to the benefit of the injured person so treated, and
    14  shall be available as a defense in any action by such acupuncturist  for
    15  payment for treatment rendered by such acupuncturist after being removed
    16  from  the  list  of  acupuncturists  authorized  to  render  acupuncture
    17  services under this section. The acupuncture practice  committee  if  it
    18  deems  such  acupuncturist  duly  qualified shall recommend to the chair
    19  that such person be authorized to render acupuncture services under this
    20  section.  Such recommendations shall be only advisory to the  chair  and

    21  shall not be binding or conclusive.
    22    (b)  The chair shall prepare and establish a schedule for the state or
    23  schedules limited to defined localities of charges and fees for acupunc-
    24  ture treatment and care, to be determined  in  accordance  with  and  be
    25  subject  to  change  pursuant  to rules promulgated by the chair. Before
    26  preparing such schedule for the state or schedules for  limited  locali-
    27  ties  the  chair  shall  request  the  acupuncture practice committee to
    28  submit to such chair a report on the amount of  remuneration  deemed  by
    29  such  committee  to  be  fair  and adequate for the types of acupuncture
    30  services to be rendered under this chapter, but consideration  shall  be

    31  given  to  the view of other interested parties.  The amounts payable by
    32  the employer for such treatment and  services  shall  be  the  fees  and
    33  charges established by such schedule.
    34    (c)  In determining the schedule or schedules as provided in paragraph
    35  (b) of this subdivision, the chair  shall  make  a  distinction  between
    36  treatment  rendered  by  a  duly  licensed  and registered acupuncturist
    37  subject to the provisions of article one hundred sixty of the  education
    38  law  and  a certified acupuncturist subject to the provisions of section
    39  eighty-two hundred sixteen of the education law,  and  the  chair  shall
    40  prepare and establish a schedule or schedules reflecting fees and charg-

    41  es appropriate to the nature and scope of the treatment rendered by each
    42  type  of  practitioner, giving due consideration to all relevant factors
    43  including, but not limited to, the level of acupuncture education of the
    44  practitioner, the type of treatment rendered,  whether  the  acupuncture
    45  treatment  is being provided as the principal treatment or as an adjunct
    46  treatment, and the billing practices  entailed,  including  whether  the
    47  practitioner  submits one comprehensive bill or bills separately for the
    48  acupuncture treatment, office visits and other items.
    49    4. No claim for acupuncture services shall be valid and enforceable as
    50  against the  employer  or  employees  unless  within  forty-eight  hours

    51  following  the  first  treatment  the  acupuncturist giving such care or
    52  treatment furnishes to the employer and directly to the chair a prelimi-
    53  nary notice of such injury and treatment, and within fifteen days there-
    54  after a more complete report and subsequent thereto progress reports  as
    55  requested in writing by the chair, board, employer or insurance carrier,
    56  at  intervals  of  not  less  than three weeks apart or at less frequent

        A. 9721--B                          3
     1  intervals if requested on forms prescribed by the chair. The  board  may
     2  excuse  the  failure  to give such notices within the designated periods
     3  when it finds it to be in the interest of justice to do so.

     4    5.  Fees  for  acupuncture  services  shall  be payable only to a duly
     5  licensed or certified acupuncturist  pursuant  to  article  one  hundred
     6  sixty  of  the education law, or to the agent, executor or administrator
     7  of the estate of such acupuncturist.  No acupuncturist rendering  treat-
     8  ment to a compensation claimant shall collect or receive a fee from such
     9  claimant  within  this  state,  but  shall  have recourse for payment of
    10  services rendered only to the employer  under  the  provisions  of  this
    11  section.
    12    6.  Whenever  his  or  her  attendance  at  a hearing is required, the
    13  acupuncturist of the injured employee shall be entitled to receive a fee
    14  from the employer in an amount to be fixed by the board, in addition  to

    15  any  fee  payable under section eight thousand one of the civil practice
    16  law and rules.
    17    7. (a) Unless within thirty days after a bill has been rendered to the
    18  employer by the acupuncturist who has treated an injured employee,  such
    19  employer shall have notified the chair and such acupuncturist in writing
    20  that  such  employer demands an impartial examination of the fairness of
    21  the amount claimed by such acupuncturist for his or  her  services,  the
    22  right  to such an impartial examination shall be deemed to be waived and
    23  the amount claimed by such acupuncturist shall be deemed to be the  fair
    24  value  of the services rendered.  If the parties fail to agree as to the
    25  acupuncture care rendered under this chapter to a claimant,  such  value

    26  shall  be decided by the acupuncture practice committee and the majority
    27  decision of such committee shall be conclusive upon the  parties  as  to
    28  the  value of the services rendered. The board may make an award for any
    29  such bill or part thereof which remains unpaid in the same manner as  an
    30  award  for  bills  rendered  under subdivisions one and three of section
    31  thirteen-g of this article, and such award  may  be  collected  in  like
    32  manner  as  an  award of compensation. The chair shall assess the sum of
    33  fifty dollars against the employer for  each  such  award  made  by  the
    34  board, which sum shall be paid into the state treasury.
    35    (b)  Where  an  acupuncturist's bill has been determined to be due and

    36  owing in accordance with the provisions of this section, the  board  may
    37  impose  a penalty of not more than one and one-half percent interest per
    38  month payable to the acupuncturist in  accordance  with  the  rules  and
    39  regulations promulgated by the board.
    40    (c)  The  parties to such proceeding shall each pay to the chair a sum
    41  equal to five per centum of the amount payable  under  the  decision  of
    42  such  committee  or a minimum of five dollars, whichever is greater. The
    43  sums so collected shall be transferred to the state  treasury  to  reim-
    44  burse it on account of the expense of administering this section.
    45    8.  Within  the limits prescribed by the education law for acupuncture

    46  services,  the  report  or  testimony  of  an  authorized  acupuncturist
    47  concerning  the  condition  of an injured employee and treatment thereof
    48  shall be deemed competent evidence and the professional opinion  of  the
    49  acupuncturist  as  to causal relation and as to required treatment shall
    50  be deemed competent but  shall  not  be  controlling.  Nothing  in  this
    51  section  shall be deemed to deprive any employer or insurance carrier of
    52  any right to a medical examination or presentation of medical  testimony
    53  now conferred by law.
    54    9.  The  chair  shall  promulgate  rules governing the procedure to be
    55  followed by those rendering acupuncture  services  under  this  section,
    56  which  rules  so far as practicable shall conform to the rules presently

        A. 9721--B                          4
     1  in effect with reference to medical care furnished to claimants in work-
     2  ers' compensation. In connection with the promulgation of such rules the
     3  chair may consult the acupuncture practice committee and may  take  into
     4  consideration the view of other interested parties.
     5    10.  The  chair  shall appoint for and with jurisdiction in the entire
     6  state of New York a single acupuncture practice  committee  composed  of
     7  two  licensed  acupuncturists,  and  one  duly licensed physician of the
     8  state of New York. Each member of such committee shall  receive  compen-
     9  sation  either  on an annual basis or on a per diem basis to be fixed by

    10  the chair within amounts appropriated therefor.  One  of  such  licensed
    11  acupuncturists  shall  be  designated  by  the  chair as a chair of such
    12  acupuncture practice committee. No member of such committee shall render
    13  acupuncture services under this section nor be an employer or accept  or
    14  participate  in  any  fee from any insurance company authorized to write
    15  workers' compensation insurance in this state or from any  self-insurer,
    16  whether  such employment or fee relates to a workers' compensation claim
    17  or otherwise. The attorney  general,  upon  request,  shall  advise  and
    18  assist such committee.
    19    11.  The  acupuncture  practice  committee shall investigate, hear and
    20  make findings with respect to all charges as to  professional  or  other

    21  misconduct  of any authorized acupuncturists as provided in this section
    22  under rules and procedures to be  prescribed  by  the  chair  and  shall
    23  report  evidence of such misconduct, with their findings and recommenda-
    24  tions with respect thereto, to the chair.   The findings,  decision  and
    25  recommendation  of such acupuncture practice committee shall be advisory
    26  to the chair only, and shall not be binding or conclusive  upon  him  or
    27  her.  The  chair shall remove from the list of acupuncturists authorized
    28  to render acupuncture services  under  this  chapter  the  name  of  any
    29  acupuncturist who he or she shall find after reasonable investigation is
    30  disqualified because such acupuncturist:

    31    (a) has been guilty of professional or other misconduct or incompeten-
    32  cy in connection with the rendering of acupuncture services,
    33    (b)  has  exceeded the limits of his or her professional competence in
    34  rendering acupuncture services under the law, or has made  false  state-
    35  ments regarding qualifications in the application for authorization,
    36    (c)  has failed to submit timely, full and truthful acupuncture evalu-
    37  ation and treatment reports of all findings to the employer and directly
    38  to the chair of the board  within  the  time  limits  provided  in  this
    39  section,
    40    (d)  has  rendered  acupuncture  services under this chapter for a fee
    41  less than that fixed in the fee schedule,

    42    (e) has solicited or has employed another to solicit  for  himself  or
    43  herself or for another professional treatment, examination or care of an
    44  injured employee with any claim under this chapter,
    45    (f)  has refused to appear before or answer upon request of the chair,
    46  board, acupuncture practice committee or any duly authorized officer  of
    47  the  state,  any  legal  question  or produce any relevant book or paper
    48  concerning conduct under an authorization granted under law, or
    49    (g) has directly or indirectly requested, received or participated  in
    50  the division, transference, assignment, rebating, splitting or refunding
    51  of a fee for, or has directly or indirectly requested, received or prof-

    52  ited  by  means  of  a  credit  or otherwise valuable consideration as a
    53  commission, discount or gratuity in connection with the treatment  of  a
    54  workers' compensation claimant.
    55    12. Any person who violates or attempts to violate, and any person who
    56  aids  another to violate or attempts to induce him or her to violate the

        A. 9721--B                          5
     1  provisions of paragraph (g) of subdivision eleven of this section  shall
     2  be guilty of a misdemeanor.
     3    13.  Nothing  in  this  section  shall be construed as limiting in any
     4  respect the power or duty of  the  chair  to  investigate  instances  of
     5  misconduct,  either  before  or  after  investigation by the acupuncture

     6  practice committee, or to temporarily suspend the authorization  of  any
     7  acupuncturist  believed  to be guilty of such misconduct. The provisions
     8  of subdivision one of section thirteen-d of this article which  are  not
     9  inconsistent  with the provisions of this section shall be applicable as
    10  if fully set forth in this section.
    11    14. Nothing contained in this section  shall  prohibit  acupuncturists
    12  who  practice  as  partners,  in groups or as a professional corporation
    13  from pooling fees  and  moneys  received,  either  by  the  partnership,
    14  professional  corporation or group or by the individual members thereof,
    15  for professional  services  furnished  by  any  individual  professional

    16  member, or employee of such partnership, corporation or group, nor shall
    17  the professionals constituting the partnerships, corporations, or groups
    18  be prohibited from sharing, dividing or apportioning the fees and moneys
    19  received  by them or by the partnership, corporation or group in accord-
    20  ance with a partnership or other agreement.
    21    § 2. Subdivision 1 of section 8213 of the education law, as  added  by
    22  chapter 772 of the laws of 1990, is amended to read as follows:
    23    (1)  There  is  hereby established within the department a state board
    24  for acupuncture. The board shall consist of not less than eleven members
    25  to be appointed by the board of regents on  the  recommendation  of  the
    26  commissioner  for  the purpose of assisting the board of regents and the

    27  department on matters of professional licensing and professional conduct
    28  in accordance with section sixty-five hundred eight  of  this  [chapter]
    29  title, four of whom shall be licensed acupuncturists, four of whom shall
    30  be  licensed  physicians  certified to use acupuncture and three of whom
    31  shall be public members representing the consumer and community. Of  the
    32  acupuncturists  first  appointed  to  the board, one may be a registered
    33  specialist's assistant-acupuncture provided that the term of such regis-
    34  tered specialist's assistant-acupuncture shall not  be  more  than  four
    35  years.  Of  the  members first appointed, three shall be appointed for a
    36  one year term, three shall be appointed for a two year  term  and  three
    37  shall be appointed for a three year term, and two shall be appointed for
    38  a  four  year  term.  Thereafter  all  members shall serve for five year

    39  terms. In the event that more  than  eleven  members  are  appointed,  a
    40  majority of the additional members shall be licensed acupuncturists. The
    41  members of the board shall select one of themselves as [chairman] chair-
    42  person to serve for a one year term.
    43    §  3.  The second undesignated paragraph of subdivision 2 of section 2
    44  of the workers' compensation law, as amended by chapter 113 of the  laws
    45  of 1946, is amended to read as follows:
    46    "Chairman"  or  "chair" means the [chairman] chairperson of the [work-
    47  men's] workers' compensation board of the state of New York;
    48    § 4. This act shall take effect on the one hundred eightieth day after
    49  it shall have become a law. Provided, that  effective  immediately,  the

    50  addition, amendment and/or repeal of any rules and regulations necessary
    51  to  implement  the  provisions  of  this  act  on its effective date are
    52  authorized and directed to be completed  on  or  before  such  effective
    53  date.
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