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Modified Rules For IME Doctors

SWCB Revises Proposed IME Rules, Reopens Public Comment:


The New York State Workers' Compensation Board has revised proposed regulations governing independent medical reviews and reports and has reopened the public comment period, according to a notice posted in Wednesday's State Register.


The board first proposed the amendments to Section 300.2 of the New York Code, Rules and Regulations on March 20. According to the Register notice, the board received 11 public comments on the proposal and has made changes in response to some of those suggestions.


Some of the changes the board made in response to public comment were:


• To clarify that a physician or provider who has examined a claimant for the sole purpose of a consultation or diagnostic examination or test is not an attending physician or provider within the meaning of the Workers' Compensation Law, and to clarify that a physician or provider who conducts a records review must be authorized by the chair of the Workers' Compensation Board.


• To require that when an authorized provider is not available for a records review, a qualified provider must be selected.


• To clarify that a "substantive communication" for the purposes of determining whether a request for information must be filed with the board does not include documents that are already part of the board's file.


• To establish procedures for retaining authorization privileges and removal of a provider from the list of authorized examiners.


• To provide that notice of an independent medical examination must be mailed to the board on the same day it is mailed to the claimant and that an overnight delivery service may be used.


• To require that information that is supplied to an independent medical examiner must be part of the board file. The information must be submitted to the board no later than the day that information is first sent to an independent medical examiner or IME entity.


• To clarify that the reasons for use of a qualified provider are also applicable to records reviews.


• To require that an objection that a report does not substantially comply with Workers' Compensation Law Section 137 must be raised in a timely manner.


• To better describe the mandatory registration process for IME entities.


• To include a requirement that an IME entity comply fully with any investigation by the chairman of the board.


• To describe the basis and procedures for removal of a registered IME entity.


• To impose a $10,000 penalty and revocation of an IME entity's registration when the board chair finds that an IME entity has materially altered an IME report or caused a material alteration.


The board also rejected some suggested changes, it said in the regulatory notice. For example, the board made no changes in response to comments by a group of claimants' attorneys who asked that physicians outside of New York state not be allowed to conduct records reviews. "The board has concerns that limiting a records review to only board-authorized providers may have unintended consequences," the board said in response to the comment.


The board also rejected requests from independent medical examiners to change its proposed rules on videotaping independent medical examinations. IMEs asked the board for permission to produce their own videotape themselves if a claimant arrives at an appointment with a video recorder as a way of reducing fraud. Other IMEs wanted to amend the rule to require the claimant to give seven days notice if he wishes to videotape his examination.


On the other side, some claimant attorneys argued that a prohibition against distributing videotapes of independent medical examinations to the media discourages their ability to communicate with the public.


The board said it is accepting public comment on its revised proposed rules through Feb. 7. The revised rules proposal, the board's response to the public comments and related documents are here.

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