Amd 206 & 4902, Pub Health L; add 4901-a, amd 4902 & 4905, Ins L; amd 13-b & 137, add 137-a, Work Comp L
Directs the establishment of a pool of utilization review agents from health services specialties; requires impartiality; provides for the appointment of agents from the pool; requires random review of utilization review records; prohibits conflicts of interest.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7730
SPONSOR: Joyner TITLE OF BILL:
An act to amend the public health law, the insurance law and the work-
ers' compensation law, in relation to utilization review agents and
independent medical examiners
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to increase the pool of independent medical
examiners.
SUMMARY OF PROVISIONS:
Section 1: Amends section 206 of the public health law to add two subdi-
visions 32 and 33 to say the commissioner must establish and update a
list that has professionals applying to be independent utilization
review agents.
Section 2: Amends section 4902 of the public health law te say that the
utilization review agents must follow the stated requirements
Section 3: Adds a new section 4901-a to determine impartiality of utili-
zation review agents
Section 4: Amends section 4902 of the public health law to say that the
utilization review agents must follow the stated requirements.
Section 5: Section 4902 of the insurance law is amended to add that
utilization review agents will have their records randomly reviewed.
Section 6: Amends subsection 4905 of the insurance law to say that
reviews must be impartial
Section 7: Amends subsection 4905 of the insurance law to read that a
review by a practitioner should not take place if there is a conflict Of
interest.
Section 8: Amends subdivision 3 of section 13-b of the workers comp law
that providers must meet the requirements of the education law
Section 9: Amends section 137 of the workers comp law to state that
examiners will have their records randomly reviewed.
Section 10: Amends the workers compensation law to adda new section
137-a to outline the impartiality of independent medical examiners
Section 11: This act shall take effect immediately
JUSTIFICATION:
According to a 2018 Independent Medical Examination (IME) utilization
study conducted by the state IME Advisory Committee, over the last
several years there has been a significant decrease in the number of
independent medical examiners resulting in inadequate coverage in
certain areas of the state. The study further noted that most IME's were
performed by a small group of orthopedic surgeons; 72% (286,656 out of
395,713) of the total IMEs performed during the three-year study period
were conducted by a mere 2.5% (104 out of 4,089) of the eligible provid-
ers. And ten independent medical examiners conducted 16.5% of the exams
(65,105) over the same three-year study period. This is a problem
because insurance carriers and third-party companies are currently able
to compile their own lists of medical examiners and utilization review
agents, and they routinely pick the same individuals to conduct these
exams. This all too often results in carriers choosing IME providers and
utilization review agents who give them the results they are looking
for, which are often contrary to both the medical evidence and patient
interests. This bill is designed to reverse this troubling trend by
creating a rotating pool of medical examiners and utilization review
agents to choose from, and also by adopting various other provisions to
avoid examiner conflicts of interest. Most significantly, the bill will
require the various state agencies involved with IME's and utilization
review to compile a list of eligible independent medical examiners and
utilization review agents who will be selected on a rotating basis to
increase the pool of truly independent examiners and utilization review
agents available to conduct these exams. Additionally, the bill also
requires that an independent medical examiner or utilization review
agent be disqualified from consideration if he or she earns more than
50% of their income by providing IME's and utilization reviews. In
summary, the bill will help ensure that there is an adequate pool of
qualified and independent medical examiners and utilization review
agents available to conduct these crucial exams which ultimately deter-
mine a patient's access to necessary healthcare, and further requires
that these examiners and agents not be completely beholden to the insur-
ance carriers and third party companies who employ them, resulting in
better overall outcomes for injured workers and other patients in need
of medical services, whether through the state Workers' Compensation,
No-Fault or other insurance systems.
PRIOR LEGISLATIVE HISTORY:
None
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
TBD
EFFECTIVE DATE:
This act shall take effect immediately
STATE OF NEW YORK
________________________________________________________________________
7730
2023-2024 Regular Sessions
IN ASSEMBLY
June 6, 2023
___________
Introduced by M. of A. JOYNER -- read once and referred to the Committee
on Insurance
AN ACT to amend the public health law, the insurance law and the work-
ers' compensation law, in relation to utilization review agents and
independent medical examiners
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 206 of the public health law is amended by adding
2 two new subdivisions 32 and 33 to read as follows:
3 32. The commissioner is hereby directed to establish and periodically
4 update from available applicants an independent pool of physicians and
5 professional health service providers in each medical and professional
6 health service specialty to serve as independent utilization review
7 agents as defined by subdivision nine of section forty-nine hundred of
8 this chapter. Such applicant shall, upon submitting their name to the
9 commissioner, certify in writing that they will make all decisions on
10 cases before them in a fair and unbiased manner, based upon the facts
11 presented to them, and without any preconceived bias, pressure or influ-
12 ences asserted from outside elements or prior experiences or work. A
13 licensed physician shall presume to be eligible to apply for inclusion
14 in the pool, unless the commissioner finds extenuating circumstances
15 dictate their disqualification.
16 33. (a) The commissioner shall assign physicians or other professional
17 health service providers authorized to examine or evaluate injury or
18 illness from the pool in the appropriate medical or professional health
19 service specialty and who practices in the same area or region, to
20 conduct physical examinations and review medical records of covered
21 persons exclusively on a random, rotating basis to eliminate bias or
22 preference in the selection of independent utilization review agents, or
23 alternatively, the commissioner may select a not-for-profit organization
24 to assign providers from the pool on the same basis. Such assignment may
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10457-01-3
A. 7730 2
1 be done through a process whereby a list of randomly selected, appropri-
2 ate medical or professional health service providers is compiled by
3 geographic region throughout the state and provided to the insurance
4 carrier and the claimant for the purposes of providing both parties
5 equal opportunity to reject no more than two names off such list before
6 the next available utilization review agent on the list is selected to
7 conduct the medical examination or review of medical records. Where a
8 person is rejected by either party such name shall however retain its
9 place in the rotation for purposes of future assignments.
10 (b) When a utilization review agent is selected from the pool of qual-
11 ified utilization review agents maintained by the department, the
12 commissioner shall remove such assignee from its then current place in
13 the rotation and place such agent's name at the end of the pool so that
14 such agent may be available for another regional utilization review
15 agent assignment as needed.
16 (c) A practitioner is not eligible to perform a utilization review of
17 a covered person when the appearance of or an actual conflict of inter-
18 est exists. A conflict of interest shall include, but not be limited to,
19 instances where the utilization review agent or someone in their office
20 or place of employment or practice has treated or examined the covered
21 person. A conflict of interest may be presumed to exist when the utili-
22 zation review agent and a treating provider that previously treated the
23 covered person have a relationship which involves a direct or substan-
24 tial financial interest.
25 (d) A utilization review agent shall not become the treating provider
26 for the covered person unless authorized to do so by the commissioner,
27 or ordered to by an administrative law judge.
28 (e) A party may, within five business days of the appointment as a
29 utilization review agent for a particular covered person, request that
30 the utilization review agent disclose all potential conflicts of inter-
31 est to the commissioner that may result from any relationship between
32 the utilization review agent and the insurance carrier, self-insured
33 employer, or the covered person. A potential conflict of interest exists
34 when the utilization review agent, or someone in their immediate family,
35 receives something of material value from the insurance carrier whether
36 in the form of stock, royalties, consultantship, funding by a research
37 grant, or other payment by the insurance carrier for any additional
38 service other than the utilization review, or if the utilization review
39 agent receives more than fifty percent of his or her total earned income
40 by providing utilization reviews. Such request shall be submitted, in
41 writing, to the commissioner and a copy shall be sent, delivered, or
42 submitted to any other parties at substantially the same time. The
43 commissioner shall determine whether any conflict of interest is suffi-
44 ciently material as to require disqualification of the utilization
45 review agent from performing any utilization review under this article,
46 after prompt disclosure pursuant to this subdivision.
47 § 2. Subdivision 2 of section 4902 of the public health law, as added
48 by chapter 705 of the laws of 1996, is amended to read as follows:
49 2. Each utilization review agent shall assure adherence to the
50 requirements stated in subdivision one of this section by all contrac-
51 tors, subcontractors, subvendors, agents and employees affiliated by
52 contract or otherwise with such utilization review agent, and shall
53 conduct all reviews in an objective and impartial manner. Utilization
54 review agents shall have their records randomly reviewed and audited
55 periodically by the commissioner. The commissioner shall be author-
56 ized to conduct a random review of no more than five utilization review
A. 7730 3
1 agent records during an agent's registration period. If, in the opin-
2 ion of the commissioner, three or more of the agent's records and
3 documentation out of the five records that may be audited annually are
4 judged to be deficient, the commissioner shall be authorized to audit
5 additional records during such registration period and shall be author-
6 ized to institute a remedial program prior to the expiration of the
7 registrant's current registration period. If during any two consecutive
8 annual audit periods an agent's records and documentation are judged to
9 be deficient in spite of any program of remedial action directed
10 on the part of the commissioner, the commissioner may remove the utili-
11 zation review agent from the pool of names available to conduct utiliza-
12 tion reviews. Once a registrant's name has been removed from the pool,
13 in order to re-register as an agent the registrant shall seek authori-
14 zation in accordance with this chapter and in the same manner as a prac-
15 titioner who has not previously been authorized.
16 § 3. The insurance law is amended by adding a new section 4901-a to
17 read as follows:
18 § 4901-a. Impartiality of utilization review agents. (a) The super-
19 intendent is hereby directed to establish and periodically update from
20 available applicants an independent pool of physicians and professional
21 health service providers in each medical and professional health service
22 specialty to serve as independent utilization review agents as defined
23 by subsection (i) of section forty-nine hundred of this title. Such
24 applicant shall, upon submitting their name to the superintendent,
25 certify in writing that they will make all decisions on cases before
26 them in a fair and unbiased manner, based upon the facts presented to
27 them, and without any preconceived bias, pressure or influences asserted
28 from outside elements or prior experiences or work. A licensed physician
29 shall presume to be eligible to apply for inclusion in the pool, unless
30 the superintendent finds extenuating circumstances dictate their
31 disqualification.
32 (b)(1) The superintendent shall assign physicians or other profes-
33 sional health service providers authorized to examine or evaluate injury
34 or illness from the pool in the appropriate medical or professional
35 health service specialty and who practices in the same area or region to
36 conduct physical examinations and review medical records of covered
37 persons exclusively on a random, rotating basis to eliminate bias or
38 preference in the selection of the independent utilization review
39 agents, or alternatively, the superintendent may select a not-for-profit
40 organization to assign providers from the pool on the same basis. Such
41 assignment may be done through a process whereby a list of randomly
42 selected, appropriate medical or professional health service providers
43 is compiled by geographic region throughout the state and provided to
44 the insurance carrier and the claimant for the purposes of providing
45 both parties equal opportunity to reject no more than two names off such
46 list until one utilization review agent remains to conduct the medical
47 examination or review of medical records. When a person is rejected by
48 either party such name shall however retain its place in the rotation
49 for purposes of future assignments.
50 (2) When a utilization review agent is selected from the pool of qual-
51 ified utilization review agents maintained by the department, the super-
52 intendent shall remove such utilization review agent's name from its
53 then current place in the rotation and place such agent's name at the
54 end of the pool so that such agent may be available for another regional
55 utilization review agent assignment as needed.
A. 7730 4
1 (3) A practitioner is not eligible to perform a utilization review of
2 a covered person when the appearance of or an actual conflict of inter-
3 est exists. A conflict of interest shall include, but not be limited to,
4 instances where the utilization review agent or someone in their office
5 or place of employment or practice has treated or examined the covered
6 person. A conflict of interest may be presumed to exist when the utili-
7 zation review agent and a treating provider that previously treated the
8 covered person have a relationship which involves a direct or substan-
9 tial financial interest.
10 (4) A utilization review agent shall not become the treating provider
11 for the covered person unless authorized to do so by the commissioner of
12 health, or ordered to by an administrative law judge.
13 (5) A party may, within five business days of the appointment as a
14 utilization review agent for a particular covered person, request that
15 the utilization review agent disclose all potential conflicts of inter-
16 est to the superintendent that may result from any relationship between
17 the utilization review agent and the insurance carrier, self-insured
18 employer, or the covered person. A potential conflict of interest exists
19 when the utilization review agent, or someone in their immediate family,
20 receives something of material value from the insurance carrier whether
21 in the form of stock, royalties, consultantship, funding by a research
22 grant, or other payment by the insurance carrier for any additional
23 service other than the utilization review, or if the utilization review
24 agent receives more than fifty percent of his or her total earned income
25 by providing utilization reviews. Such request shall be submitted, in
26 writing, to the superintendent and a copy shall be sent, delivered, or
27 submitted to any other parties at substantially the same time. The
28 superintendent shall determine whether any conflict of interest is
29 sufficiently material as to require disqualification of the utilization
30 review agent from performing any utilization review under this article,
31 after prompt disclosure pursuant to this subdivision.
32 § 4. Subsection (b) of section 4902 of the insurance law, as added by
33 chapter 705 of the laws of 1996, is amended to read as follows:
34 (b) Each utilization review agent shall assure adherence to the
35 requirements stated in subsection (a) of this section by all contrac-
36 tors, subcontractors, subvendors, agents and employees affiliated by
37 contract or otherwise with such utilization review agent, and shall
38 conduct all reviews in an objective and impartial manner.
39 § 5. Section 4902 of the insurance law is amended by adding two new
40 subsections (c) and (d) to read as follows:
41 (c) Utilization review agents shall have their records randomly
42 reviewed and audited periodically by both the superintendent of finan-
43 cial services and the commissioner of health. The superintendent and
44 commissioner shall be authorized to conduct a random review of no more
45 than five utilization review records annually during a utilization
46 review agent's registration period. If, in the opinion of the super-
47 intendent and commissioner, three or more of the utilization review
48 agent's records and documentation out of the five records that may be
49 audited annually are judged to be deficient, such superintendent and
50 commissioner shall be authorized to audit additional records during such
51 registration period and shall be authorized to institute a remedial
52 program prior to the expiration of the registrant's current registration
53 period. If during any two consecutive annual audit periods a utilization
54 review agent's records and documentation are judged to be deficient in
55 spite of any program of remedial action directed on the part of the
56 superintendent and commissioner, they may remove the utilization review
A. 7730 5
1 agent from the pool of names available to conduct utilization reviews.
2 Once a registrant's name has been removed from the pool, in order to
3 re-register as a utilization review agent the registrant shall seek
4 authorization in accordance with this article and in the same manner as
5 a practitioner who has not previously been authorized.
6 (d) The utilization review agent shall cite, whenever and wherever
7 possible, the specific page and reference to the relevant practice
8 guideline or to the relevant peer-reviewed medical literature, scientif-
9 ic studies, abstracts, and/or standard reference compendia, that the
10 agent utilized to assist him or her in reaching a determination when
11 commenting on or making any determination adverse to the covered
12 persons' ongoing or concurrent care or a retrospective review based on a
13 review of the treating provider's records or an examination of the
14 injured patient or covered person.
15 § 6. Subsection (c) of section 4905 of the insurance law, as added by
16 chapter 705 of the laws of 1996, is amended to read as follows:
17 (c) Each utilization review agent, or contractors, subcontractors,
18 subvendors, agents and employees affiliated by contract or otherwise
19 with such utilization review agent, shall conduct all reviews in an
20 objective and impartial manner. Any health care professional who makes
21 determinations regarding the medical necessity of health care services
22 during the course of utilization review shall be appropriately licensed,
23 registered or certified.
24 § 7. Section 4905 of the insurance law is amended by adding three new
25 subsections (p), (q), and (r) to read as follows:
26 (p) A practitioner is not eligible to perform a utilization review of
27 a covered person when the appearance of or an actual conflict of inter-
28 est exists. A conflict of interest shall include, but not be limited to,
29 instances where the utilization review agent or someone in their office
30 or place of employment or practice has treated or examined the covered
31 person. A conflict of interest may be presumed to exist when the utili-
32 zation review agent and a provider that previously treated the covered
33 person have a relationship which involves a direct or substantial finan-
34 cial interest.
35 (q) A utilization review agent shall not become the treating provider
36 for the covered person unless authorized to do so by the commissioner of
37 health, or ordered to by an administrative law judge.
38 (r) A party may, within five business days of the appointment as a
39 utilization review agent for a particular covered person, request that
40 the utilization review agent disclose all potential conflicts of inter-
41 est to the superintendent that may result from any relationship between
42 the utilization review agent and the insurance carrier, self-insured
43 employer, or the covered person. A potential conflict of interest exists
44 when the utilization review agent, or someone in their immediate family,
45 receives something of material value from the insurance carrier whether
46 in the form of stock, royalties, consultantship, funding by a research
47 grant, or other payment by the insurance carrier for any additional
48 service other than the utilization review, or if the utilization review
49 agent receives more than fifty percent of his or her total earned income
50 by providing utilization reviews. Such request shall be submitted, in
51 writing, to the superintendent and a copy shall be sent, delivered, or
52 submitted to any other parties at substantially the same time. The
53 superintendent shall determine whether any conflict of interest is
54 sufficiently material as to require disqualification of the utilization
55 review agent from performing any utilization review under this article,
56 after prompt disclosure pursuant to this subdivision.
A. 7730 6
1 § 8. Subdivision 3 of section 13-b of the workers' compensation law,
2 as amended by section 1 of part CC of chapter 55 of the laws of 2019, is
3 amended to read as follows:
4 3. A provider properly licensed or certified pursuant to the regu-
5 lations of the commissioner of education and the requirements of the
6 education law desirous of being authorized to render medical care under
7 this chapter and/or to conduct independent medical examinations in
8 accordance with paragraph (b) of subdivision four of section thirteen-a
9 and section one hundred thirty-seven of this chapter shall file an
10 application for authorization under this chapter with the chair or
11 chair's designee. Prior to receiving authorization, a physician must,
12 together with submission of an application to the chair, submit such
13 application to the medical society of the county in which the physi-
14 cian's office is located or of a board designated by such county society
15 or of a board representing duly licensed physicians of any other school
16 of medical practice in such county, and such medical society shall
17 submit the recommendation to the board. In the event such county society
18 or board fails to take action upon a physician's completed and signed
19 application within forty-five days, the chair may complete review of the
20 application without such approval. Upon approval of the application by
21 the chair or the chair's designee, the applicant shall further agree to
22 refrain from subsequently treating for remuneration, as a private
23 patient, any person seeking medical treatment, or submitting to an inde-
24 pendent medical examination, in connection with, or as a result of, any
25 injury compensable under this chapter, if he or she has been removed
26 from the list of providers authorized to render medical care or to
27 conduct independent medical examinations under this chapter, or if the
28 person seeking such treatment, or submitting to an independent medical
29 examination, has been transferred from his or her care in accordance
30 with the provisions of this chapter. The applicant shall also agree to
31 conduct all examinations in an objective and impartial manner. This
32 agreement shall run to the benefit of the injured person so treated or
33 examined, and shall be available to him or her as a defense in any
34 action by such provider for payment for treatment rendered by a provider
35 after he or she has been removed from the list of providers authorized
36 to render medical care or to conduct independent medical examinations
37 under this chapter, or after the injured person was transferred from his
38 or her care in accordance with the provisions of this chapter.
39 § 9. Section 137 of the workers' compensation law is amended by adding
40 two new subdivisions 13 and 14 to read as follows:
41 13. Examiners shall have their records randomly reviewed and audited
42 periodically by the chair. The chair shall be authorized to conduct a
43 random review of no more than five independent medical examination
44 records during an examiner's triennial registration period. If, in the
45 opinion of the chair, three or more of the examiner's records and
46 documentation out of the five records that may be audited annually are
47 judged to be deficient, the chair shall be authorized to audit addi-
48 tional records during such registration period and shall be authorized
49 to institute a remedial program prior to the expiration of the regis-
50 trant's current independent medical examiner registration period. If
51 during any two consecutive annual audit periods an examiner's records
52 and documentation are judged to be deficient in spite of any program of
53 remedial action directed on the part of the chair, the chair may remove
54 the examiner from the pool of names available to conduct independent
55 medical examinations. Once a registrant's name has been removed from the
56 pool, in order to re-register as an examiner the registrant shall seek
A. 7730 7
1 authorization in accordance with section thirteen-b of this chapter and
2 in the same manner as a practitioner who has not previously been author-
3 ized.
4 14. The examiner shall cite, whenever and wherever possible, the
5 specific page and reference to the relevant practice guideline or to the
6 relevant peer-reviewed medical literature, scientific studies,
7 abstracts, and/or standard reference compendia, that the examiner
8 utilized to assist him or her in reaching a determination when comment-
9 ing on or making any determination adverse to the claimant's ongoing or
10 concurrent care or a retrospective review based on a review of the
11 treating provider's records or an examination of the injured patient or
12 claimant.
13 § 10. The workers' compensation law is amended by adding a new section
14 137-a to read as follows:
15 § 137-a. Impartiality of independent medical examinations. 1. The
16 chair is hereby directed to establish and periodically update from
17 available applicants an independent pool of physicians and professional
18 health service providers in each medical and professional health service
19 specialty to serve as examiners. Such applicant shall, upon submitting
20 their name to the chair, certify in writing that they will make all
21 decisions on cases before them in a fair and unbiased manner, based upon
22 the facts presented to them, and without any preconceived bias, pressure
23 or influences asserted from outside elements or prior experiences or
24 work. A licensed physician shall presume to be eligible to apply for
25 inclusion in the pool, unless the chair finds extenuating circumstances
26 dictate their disqualification.
27 2. (a) The chair shall assign physicians or other professional health
28 service providers authorized to examine or evaluate injury or illness
29 from the pool in the appropriate medical or professional health service
30 specialty and who practices in the same area or region to conduct phys-
31 ical examinations and review medical records of covered persons exclu-
32 sively on a random, rotating basis to eliminate bias or preference in
33 the selection of the examiners, or alternatively, the chair may select a
34 not-for-profit organization to assign providers from the pool on the
35 same basis. Such assignment may be done through a process whereby a list
36 of randomly selected, appropriate medical or professional health service
37 providers is compiled by geographic region throughout the state and
38 provided to the insurance carrier and the claimant for the purposes of
39 providing both parties equal opportunity to reject no more than two
40 names off such list until one examiner remains to conduct the independ-
41 ent medical examination or review of medical records. Where a person is
42 rejected by either party such name shall however retain its place in the
43 rotation for purposes of future assignments.
44 (b) When an examiner is selected from the pool of qualified independ-
45 ent medical examiners maintained by the board, the chairman shall remove
46 such assignee from its then current place in the rotation and place such
47 agent's name at the end of the pool so that such agent may be available
48 for another regional utilization review agent assignment as needed.
49 (c) A practitioner is not eligible to perform an independent medical
50 examination of a claimant when the appearance of or an actual conflict
51 of interest exists. A conflict of interest shall include, but not be
52 limited to, instances where the utilization review agent or someone in
53 their office or place of employment or practice has treated or examined
54 the claimant. A conflict of interest may be presumed to exist when the
55 examiner and a provider that previously treated the claimant have a
56 relationship which involves a direct or substantial financial interest.
A. 7730 8
1 (d) An examiner shall not become the treating provider for the claim-
2 ant unless authorized to do so by the chair, or ordered to by an admin-
3 istrative law judge.
4 (e) A party may, within five business days of the appointment as an
5 examiner for a particular claimant, request that the examiner disclose
6 all potential conflicts of interest to the chairman that may result from
7 any relationship between the examiner and the insurance carrier, self-
8 insured employer, or the claimant. A potential conflict of interest
9 exists when the examiner, or someone in their immediate family, receives
10 something of material value from the insurance carrier whether in the
11 form of stock, royalties, consultantship, funding by a research grant,
12 or other payment by the insurance carrier for any additional service
13 other than the independent medical examination, or if the examiner
14 receives more than fifty percent of his or her total earned income by
15 providing independent medical examinations. Such request shall be
16 submitted, in writing, to the chair and a copy shall be sent, delivered,
17 or submitted to any other parties at substantially the same time. The
18 chair shall determine whether any conflict of interest is sufficiently
19 material as to require disqualification of the examiner from performing
20 any independent medical examination under this chapter, after prompt
21 disclosure pursuant to this subdivision.
22 § 11. This act shall take effect immediately.
