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.

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