New York Regulations 325-7.7

(b) Notwithstanding the provisions of subdivision (a) of this section, an employee has the right to request referral to the New York State occupational health clinics network for diagnosis and management of occupational disease or claimed occupational disease and for other services provided by such clinics on behalf of employees who are not participants in the pilot program. Upon request of the employee to the managed care organization, whether such request is made prior to or subsequent to initial diagnosis and treatment, the employee shall be referred to the New York State occupational health clinics network for such diagnostic, management and other services. If an employee who has been referred to the New York State occupational health clinics network requires treatment, the clinic shall refer the employee to the employee's managed care organization for such treatment provided, however, that any provider employed by or affiliated with any clinic within the network may render such treatment if such provider is otherwise authorized to treat employees with occupational diseases pursuant to the Workers' Compensation Law.

(c) The employer shall at least once annually provide its employees with an opportunity to switch from its initial choice of managed care organization to another managed care organization with which the employer has contracted. The open enrollment period shall be for a period of 30 days. An employee required to participate in the pilot program may change his or her initial selection during the open enrollment period whether or not the employee has received treatment from a provider within the employee's initial written selection of managed care organization during the preceding year. Any employee who has not previously made a selection of a managed care organization shall be required to make such selection during this period.

(d) Notwithstanding the provisions of subdivision (a) of this section an employee required to participate in the pilot program may receive emergency care after the sudden onset of an injury which arose out of and in the course of employment or symptoms of an occupational disease from a duly licensed health care provider, whether or not such provider has been authorized by the chair to treat injured employees pursuant to the Workers' Compensation Law or is a provider within the managed care organization from which the employee must obtain initial treatment. The term emergency care means medical or other health care, treatment, services, products or accommodations provided to an injured or ill employee for a sudden onset of a medical condition of such nature that failure to render immediate care would reasonably result in deterioration of the employee's condition including, but not limited to, trauma, burns, respiratory, cardiac and circulatory emergencies. Where such emergency care is rendered by a provider not within a managed care organization with which the employer has contracted to provide medical and other health care and treatment to injured employees, the provider shall be reimbursed in accordance with section 13-b of the Workers' Compensation Law.

(e) Notwithstanding the provisions of subdivision (a) of this section, an employee participating in the pilot program who is injured out of state is entitled to medical or other health care and treatment in the manner set forth in subdivision (b) of section 13 of the Workers' Compensation Law.

(f) An employee participating in the pilot program dissatisfied with his or her choice or the employer's selection of a managed care organization may, after 21 days (or, if collectively bargained, 30 days) from receiving the first treatment by his or her initial choice of certified managed care organizations, choose another managed care organization with which the employer has contracted for the purpose of receiving medical treatment and care or may elect to opt out of the pilot program and seek treatment from any provider otherwise authorized to provide treatment pursuant to the Workers' Compensation Law. If the employee elects to choose another managed care organization with which the employer has contracted or opt out of the pilot program, he or she shall verbally notify the managed care organization and/or the employer. When the employer is notified that an employee is choosing another managed care organization or opting out of the pilot program, the employer shall attempt to obtain from the employee the reasons for choosing another managed care organization or opting out and the anticipated sources of alternative care. The employer shall record such information and shall report such information to the chair in such form and at such time as the chair may require.

(g) An employee participating in the pilot program may continue to receive necessary care in any open compensation case from a provider authorized pursuant to the Workers' Compensation Law to provide such care if that provider has previously treated such employee for the specific injury arising out of and in the course of employment or specific occupational disease, and such treatment has been documented by reports on file with the Workers' Compensation Board, self-insured employer or carrier. The provider must agree to refer the employee to the managed care organization for any treatment with respect to such specific injury which will not or can not be performed by such provider. Any provider continuing treatment of any employee for a previously existing injury or occupational disease in any open case must also agree to abide by the terms of the managed care plan with respect to all aspects of the employee's medical care, including but not limited to issues of appropriateness and frequency of treatment. A provider continuing treatment pursuant to this subdivision shall be entitled to payment in accordance with the fee schedule promulgated by the chair. Notwithstanding any other provision of this Subpart, an employee who wishes to continue treatment with an authorized provider in accordance with this subdivision for a specific injury or occupational disease and who also wishes to opt-out of the managed care program with respect to the treatment for such specific injury shall not be required to seek treatment from the managed care organization and wait 21 (or, if collectively bargained, 30) days before opting-out. In such case, the employee may verbally notify the employer and/or managed care organization at any time that he or she is exercising the right to opt-out with respect to such injury. Any employee who is subject to the pilot program must notify any provider continuing to render treatment pursuant to this subdivision that the employee is enrolled in such program. Additionally, the employer, if self- insured, or a carrier, at the request of any employer, may notify any provider continuing to render treatment in an open compensation case that an employee is subject to the pilot program. The provider's right to payment for services rendered to an employee pursuant to this subdivision shall not be prejudiced by the failure of the employee, employer or carrier to notify the provider of the employee's participation in the pilot program.

(h) The managed care organization shall ensure that non-emergency medical care is available to injured employees within 36 hours after a request from an employee for treatment of an accidental injury arising out of and in the course of employment or occupational disease and that appropriate providers are accessible within a travel distance from the work site or employee's home of no greater than 20 miles in urban areas or 40 miles in rural areas. The managed care organization shall develop a mechanism for a participating employee to obtain treatment at a cost which deviates from the medical fee schedule, at the expense of the managed care organization, outside the pilot program if such treatment is unavailable or inaccessible within the pilot program as set forth above, in accordance with the provisions of this subdivision and rules and regulations promulgated by the commissioner. If treatment is not available or accessible within the pilot program, such mechanism must provide in the first instance for referral to and treatment by a physician or other provider authorized pursuant to the Workers' Compensation Law and in accordance with the fee schedule. Referral to and treatment by a provider authorized pursuant to the Workers' Compensation Law shall not require permission of the chair. If treatment outside the pilot program is necessary, and if there is no provider authorized pursuant to the Workers' Compensation Law available or accessible as set forth above, the mechanism should provide for treatment which deviates from the fee schedule from any licensed provider with permission of the chair. The chair shall designate an employee of the board to whom such requests must be addressed, and shall respond to such requests within two business days.

(i) Any provider in a certified managed care organization rendering medical treatment or care to an employee under the pilot program shall file all forms and reports required by statute or rule to be filed with the board and/or the chair, the employer or, if insured, the carrier, and the claimant's attorney or representative pursuant to the Workers' Compensation Law and rules and regulations promulgated thereunder.

(j) Notwithstanding any other provision of law, a self-insured employer or a carrier shall not be entitled to have an employee participating in the pilot program examined by a provider pursuant to the provisions of sections 13-a(4), 13-k(3), 13-l(3), 13-m(4) or any other section of the Workers' Compensation Law or rules and regulations promulgated thereunder unless the employee has opted-out of the pilot program or unless a Workers' Compensation Law judge determines special circumstances exist which require that the employee undergo a medical examination by a physician or other health care provider selected by the carrier or self-insured employer. In the event that a self-insured employer or carrier disagrees with an opinion by the managed care provider on the issue of extent and degree of disability with respect to an employee who has not opted-out of the managed care program, the self-insured employer or carrier shall attempt to resolve such disputes in accordance with the mechanism established by the managed care organization to resolve such disputes in accordance with regulations promulgated by the commissioner.

(k) All rules and regulations of the Workers' Compensation Board with respect to the rights, duties and obligations of a health provider under the Workers' Compensation Law are expressly made applicable to the pilot program, except to the extent that such rules and regulations are inconsistent with either section 126 of the Workers' Compensation Law, or rules and regulations promulgated by the chair or the Commissioner of Health pursuant to section 126 of the Workers' Compensation Law.

(l) The chair may, in accordance with the procedures set forth in section 13-d, subdivision 10 of section 13-k, subdivision 10 of section 13-l and subdivision 11 of section 13-m of the Workers' Compensation Law, disqualify a provider in a managed care organization upon a showing that the health care provider fails to meet the requirements of section 126 of the Workers' Compensation Law. Notwithstanding the foregoing, a health care provider participating in the pilot program, or an authorized provider treating a claimant pursuant to subdivision (f) of this section, shall not be disqualified or have his or her authorization revoked, solely because medical services have been rendered to an employee participating in the pilot program for a fee less than that fixed in the fee schedule if the managed care program under which such treatment is rendered provides for such lesser fees. Disqualification of a provider pursuant to this subdivision shall not result in decertification of the provider's managed care organization unless directed by the commissioner in accordance with rules promulgated by him or her.

(m) No employee of an employer participating in the pilot program shall be required to pay for any medical or other health care provided in relation to any treatment for any accidental injury arising out of and in the course of employment or occupational disease.

(n) An employee participating in the pilot program whose employer withdraws from the pilot program or whose authorization to participate is withdrawn is entitled to receive medical treatment and care for an injury arising out of and in the course of employment in accordance with the existing provisions of the Workers' Compensation Law, including treatment and care from any provider within the employee's managed care organization if such provider is otherwise authorized by the chair to render care or treatment under the Workers' Compensation Law.