New York Workers Compensation Alliance

Below is the text of the new  2007 Workers' Compensation Reform Bill agreed to by Governor Spitzer  and both houses of the Legislature.    

A6163 Silver (MS) Same as Uni. S 3322 BRUNO

S 3322 BRUNO Same as Uni. A 6163 Silver (MS)
Governor Program # 9

Governor Program # 9
Workers' Compensation Law

ON FILE: 03/03/07 Workers' Compensation Law
TITLE....Relates to workers' compensation reform

TITLE....Relates to workers' compensation reform
Currently on Assembly Committee Agenda
Labor (JOHN)
1:30 PM, Monday, March 5, 2007
Room 524 LOB

03/03/07
REFERRED TO LABOR
03/03/07
referred to labor

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STATE OF NEW YORK
________________________________________________________________________

S. 3322 A. 6163

2007-2008 Regular Sessions

SENATE - ASSEMBLY

March 3, 2007
___________

IN SENATE -- Introduced by Sens. BRUNO, MAZIARZ, ALESI, BONACIC, DeFRAN-
CISCO, FARLEY, FLANAGAN, FUSCHILLO, GOLDEN, GRIFFO, HANNON, O. JOHN-
SON, LANZA, LARKIN, LAVALLE, LEIBELL, LIBOUS, LITTLE, MALTESE, MARCEL-
LINO, MORAHAN, NOZZOLIO, PADAVAN, RATH, ROBACH, SALAND, SEWARD,
SKELOS, TRUNZO, VOLKER, WINNER, WRIGHT, YOUNG -- (at request of the
Governor) -- read twice and ordered printed, and when printed to be
committed to the Committee on Labor

IN ASSEMBLY -- Introduced by M. of A. SILVER, JOHN, FARRELL, CANESTRARI,
MORELLE, DESTITO, SCHIMMINGER, STIRPE, DelMONTE, T. GORDON, MAGNAREL-
LI, AUBERTINE, GABRYSZAK, KOON, EDDINGTON, BRADLEY, REILLY, FIELDS,
BING, LUPARDO, CAHILL, HOYT -- Multi-Sponsored by -- M. of A. ALFANO,
ARROYO, AUBRY, BACALLES, BALL, BARCLAY, BARRA, BENEDETTO, BENJAMIN,
BOYLAND, BOYLE, BRODSKY, BROOK-KRASNY, BURLING, BUTLER, CALHOUN,
CAMARA, CARROZZA, CHRISTENSEN, CLARK, COLE, CONTE, COOK, CROUCH,
CUSICK, CYMBROWITZ, L. DIAZ, R. DIAZ, DINOWITZ, DUPREY, ENGLEBRIGHT,
ERRIGO, FINCH, FITZPATRICK, GALEF, GIANARIS, GIGLIO, D. GORDON, GOTT-
FRIED, GRANNIS, GREENE, GUNTHER, HAWLEY, HAYES, HEASTIE, HIKIND, HOOP-
ER, HYER-SPENCER, JAFFEE, KAVANAGH, KOLB, LAFAYETTE, LAVINE, LIFTON,
P. LOPEZ, V. LOPEZ, MAGEE, MAISEL, MARKEY, MAYERSOHN, McDONALD, McDO-
NOUGH, McENENY, McKEVITT, MILLER, MILLMAN, MOLINARO, NOLAN, OAKS,
O'MARA, ORTIZ, PAULIN, PEOPLES, PERALTA, PHEFFER, POWELL, PRETLOW,
QUINN, RABBITT, RAIA, RAMOS, REILICH, J. RIVERA, N. RIVERA, P. RIVERA,
ROBINSON, SALADINO, SAYWARD, SCARBOROUGH, SCHROEDER, SCOZZAFAVA,
SEMINERIO, SPANO, SWEENEY, TEDISCO, THIELE, TITUS, TONKO, TOWNSEND,
WALKER, WEINSTEIN, WEISENBERG, WEPRIN, WRIGHT, YOUNG, ZEBROWSKI -- (at
request of the Governor) -- read once and referred to the Committee on
Labor

AN ACT to amend the workers' compensation law, the labor law, the insur-
ance law, the tax law, the volunteer ambulance workers' benefit law,
the volunteer firefighters' benefit law, and the public officers law,
in relation to increasing benefits, setting maximum benefit weeks for
receiving payments on certain claims, providing enhanced return to
work services and expedited medical services for claimants, increasing

EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12011-07-7
S. 3322 2 A. 6163

penalties and enforcement against fraud, implementing cost-savings,
providing for premium discounts, authorizing the closing of the
special disability fund to new claims; and to amend the public author-
ities law, in relation to the issuance by the dormitory authority of
revenue bonds secured by debt service assessments in connection there-
with

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

1 Section 1. Section 2 of the workers' compensation law is amended by
2 adding eight new subdivisions 16, 17, 18, 19, 20, 21, 22 and 23 to read
3 as follows:
4 16. "New York state average weekly wage" shall mean the average weekly
5 wage of the state of New York for the previous calendar year as reported
6 by the commissioner of labor to the superintendent of insurance on March
7 thirty-first.
8 17. A "substantially owned affiliated entity" of any person means the
9 parent company of the person, any subsidiary of the person, or any enti-
10 ty in which the parent of the person owns more than fifty percent of the
11 voting stock, or an entity in which one or more of the top five share-
12 holders of the person individually or collectively also owns a control-
13 ling share of the voting stock, or an entity which exhibits any other
14 indicia of control over the person or over which the person exhibits
15 control, regardless of whether or not the controlling party or parties
16 have any identifiable or documented ownership interest. Such indicia
17 shall include: power or responsibility over employment decisions; access
18 to and/or use of the relevant entity's assets or equipment; power or
19 responsibility over contracts of the person; responsibility for mainte-
20 nance or submission of certified payroll records; and influence over the
21 business decisions of the relevant entity.
22 18. The "special funds conservation committee" means the entity organ-
23 ized for the purpose of conserving assets of the special funds created
24 under subdivision eight of section fifteen and section twenty-five-a of
25 this chapter.
26 19. A "claim for reimbursement" from the special disability fund means
27 an application to the board under paragraph (f) of subdivision eight of
28 section fifteen of this chapter for a determination that the special
29 disability fund is liable in the first instance for any reimbursement to
30 the insurance carrier, self-insured employer or state insurance fund.
31 20. A "request for reimbursement" from the special disability fund
32 means an application to the special disability fund for reimbursement
33 for specific costs, subsequent to a determination by the board that the
34 special disability fund is liable to provide reimbursement on the claim.
35 21. The "workers' compensation rating board" or the "New York workers'
36 compensation rating board" shall mean the compensation insurance rating
37 board until February first, two thousand eight, and thereafter such
38 entity as is designated by law.
39 22. "Cost of compensation" means the amount that an employer must pay
40 to secure compensation as calculated in accordance with regulation of
41 the board or, in the absence of such regulation, based on average market
42 rates for a comparable employer.
43 23. "Special disability fund advisory committee" shall mean an advi-
44 sory committee to the workers' compensation board, acting by a majority
45 thereof, solely with respect to the special fund entitled the special
S. 3322 3 A. 6163

1 disability fund, composed of the director of the budget, the commission-
2 er of labor, the commissioner of taxation and finance, the chair of the
3 workers' compensation board, and the superintendent of insurance.
4 § 2. Paragraph (a) of subdivision 6 of section 15 of the workers'
5 compensation law, as amended by chapter 924 of the laws of 1990, is
6 amended to read as follows:
7 (a) Compensation for permanent or temporary total disability due to an
8 accident or disablement resulting from an occupational disease that
9 occurs, (1) on or after January first, nineteen hundred seventy-eight,
10 shall not exceed one hundred twenty-five dollars per week, that occurs
11 (2) on or after July first, nineteen hundred seventy-eight, shall not
12 exceed one hundred eighty dollars per week, that occurs (3) on or after
13 January first, nineteen hundred seventy-nine, shall not exceed two
14 hundred fifteen dollars per week, that occurs (4) on or after July
15 first, nineteen hundred eighty-three, shall not exceed two hundred
16 fifty-five dollars per week, that occurs (5) on or after July first,
17 nineteen hundred eighty-four, shall not exceed two hundred seventy-five
18 dollars per week, that occurs (6) on or after July first, nineteen
19 hundred eighty-five, shall not exceed three hundred dollars per week,
20 that occurs (7) on or after July first, nineteen hundred ninety, shall
21 not exceed three hundred forty dollars per week; and in the case of
22 temporary total disability shall not be less than thirty dollars per
23 week and in the case of permanent total disability shall not be less
24 than twenty dollars per week except that if the employee's wages at the
25 time of injury are less than thirty or twenty dollars per week respec-
26 tively, he or she shall receive his or her full weekly wages. Compen-
27 sation for permanent or temporary partial disability due to an accident
28 or disablement resulting from an occupational disease that occurs (1) on
29 or after January first, nineteen hundred seventy-eight, shall not exceed
30 one hundred five dollars per week, that occurs (2) on or after July
31 first, nineteen hundred eighty-three, shall not exceed one hundred twen-
32 ty-five dollars per week, that occurs (3) on or after July first, nine-
33 teen hundred eighty-four, shall not exceed one hundred thirty-five
34 dollars per week, that occurs (4) on or after July first, nineteen
35 hundred eighty-five, shall not exceed one hundred fifty dollars per
36 week, that occurs (5) on or after July first, nineteen hundred ninety,
37 shall not exceed two hundred eighty dollars per week; nor be less than
38 twenty dollars per week; except that if the employee's wages at the time
39 of injury are less than twenty dollars per week, he or she shall receive
40 his or her full weekly wages. In no event shall compensation when
41 combined with decreased earnings or earning capacity exceed the amount
42 of wages which the employee was receiving at the time the injury
43 occurred. Compensation for permanent or temporary partial disability, or
44 for permanent or temporary total disability due to an accident or disa-
45 blement resulting from an occupational disease that occurs (1) on or
46 after July first, nineteen hundred ninety-one and prior to July first,
47 nineteen hundred ninety-two, shall not exceed three hundred fifty
48 dollars per week; (2) on or after July first, nineteen hundred ninety-
49 two, shall not exceed four hundred dollars per week; nor be less than
50 forty dollars per week except that if the employee's wages at the time
51 of injury are less than forty dollars per week, the employee shall
52 receive his or her full wages. Compensation for permanent or temporary
53 partial disability, or for permanent or temporary total disability due
54 to an accident or disablement resulting from an occupational disease
55 that occurs (1) on or after July first, two thousand seven shall not
56 exceed five hundred dollars per week, (2) on or after July first, two
S. 3322 4 A. 6163

1 thousand eight shall not exceed five hundred fifty dollars per week, (3)
2 on or after July first, two thousand nine shall not exceed six hundred
3 dollars per week, and (4) on or after July first, two thousand ten, and
4 on or after July first of each succeeding year, shall not exceed two-
5 thirds of the New York state average weekly wage for the year in which
6 it is reported. Compensation for permanent or temporary partial disabil-
7 ity, or for permanent or temporary total disability due to an accident
8 or disablement resulting from an occupational disease that occurs on or
9 after July first, two thousand seven shall not be less than one hundred
10 dollars per week except that if the employee's wages at the time of
11 injury are less than one hundred dollars per week, the employee shall
12 receive his or her full wages. In no event shall compensation when
13 combined with decreased earnings or earning capacity exceed the amount
14 of wages the employee was receiving at the time the injury occurred.
15 § 3. Subdivision 5 of section 16 of the workers' compensation law, as
16 amended by chapter 924 of the laws of 1990, is amended to read as
17 follows:
18 5. Any excess of wages over: (1) seven hundred fifty dollars shall not
19 be taken into account in computing compensation under this section in
20 cases where the death occurs on or after July first, two thousand seven,
21 (2) eight hundred twenty-five dollars shall not be taken into account in
22 computing compensation under this section in cases where the death
23 occurs on or after July first, two thousand eight, (3) nine hundred
24 dollars shall not be taken into account in computing compensation under
25 this section in cases where the death occurs on or after July first, two
26 thousand nine, and (4) where the death occurs on or after July first,
27 two thousand ten, or when the death occurs on or after July first of
28 each succeeding year, an amount equal to the New York state average
29 weekly wage for the year in which it is reported shall not be taken into
30 account in computing compensation under this section. Any excess of
31 wages over five hundred ten dollars and five cents per week shall not be
32 taken into account in computing compensation under this section in cases
33 where the death occurs on or after July first, nineteen hundred ninety,
34 nor shall any excess of wages over five hundred twenty-five dollars per
35 week be taken into account in computing compensation pursuant to this
36 section in cases where death occurs on or after July first, nineteen
37 hundred ninety-one, nor shall any excess of wages over six hundred
38 dollars per week be taken into account in computing compensation pursu-
39 ant to this section in cases where death occurs on or after July first,
40 nineteen hundred ninety-two; nor shall any excess of wages over three
41 hundred eighty-two dollars and fifty cents per week be taken into
42 account in computing compensation under this section in cases where the
43 death occurs on or after July first, nineteen hundred eighty-three, nor
44 shall any excess of wages over four hundred twelve dollars and fifty
45 cents per week be taken into account in computing compensation under
46 this section in cases where the death occurs on or after July first,
47 nineteen hundred eighty-four, nor shall any excess of wages over four
48 hundred fifty dollars per week be taken into account in computing
49 compensation under this section in cases where the death occurs on or
50 after July first, nineteen hundred eighty-five; nor shall any excess of
51 wages over one hundred eighty-seven dollars and fifty cents per week on
52 or after January first, nineteen hundred seventy-eight or over two
53 hundred seventy dollars per week on or after July first, nineteen
54 hundred seventy-eight or over three hundred twenty-two dollars and fifty
55 cents per week on or after January first, nineteen hundred seventy-nine,
56 and prior to July first, nineteen hundred eighty-three, be taken into
S. 3322 5 A. 6163

1 account in computing compensation under this section nor shall any
2 excess of wages over six hundred and seventeen dollars and fifty cents a
3 month be taken into account in computing compensation under this section
4 in cases where the death occurred on or after July first, nineteen
5 hundred seventy-four, and prior to January first, nineteen hundred
6 seventy-eight, nor shall any excess of wages over five hundred and twen-
7 ty dollars a month be taken into account in computing compensation in
8 cases where death occurred on or after July first, nineteen hundred
9 seventy and prior to July first, nineteen hundred seventy-four, nor
10 shall any excess of wages over four hundred and fifty-five dollars a
11 month be taken into account in computing compensation in cases where
12 death occurred on or after July first, nineteen hundred sixty-eight and
13 prior to July first, nineteen hundred seventy, nor shall any excess of
14 wages over three hundred and ninety dollars a month be taken into
15 account in computing compensation in cases where death occurred on or
16 after July first, nineteen hundred sixty-five and prior to July first,
17 nineteen hundred sixty-eight, nor shall any excess of wages over three
18 hundred and fifty-seven dollars and fifty cents a month be taken into
19 account in computing compensation in cases where death occurred on or
20 after July first, nineteen hundred sixty-two and prior to July first,
21 nineteen hundred sixty-five, nor shall any excess of wages over three
22 hundred and twenty-five dollars a month be taken into account in comput-
23 ing compensation in cases where death occurred on or after July first,
24 nineteen hundred sixty and prior to July first, nineteen hundred sixty-
25 two, nor shall any excess of wages over two hundred and ninety-two
26 dollars and fifty cents a month be taken into account in computing
27 compensation where death occurred on or after July first, nineteen
28 hundred fifty-eight and prior to July first, nineteen hundred sixty, nor
29 shall any excess of wages over two hundred and sixty dollars a month be
30 taken into account in computing compensation where death occurred on or
31 after July first, nineteen hundred fifty-four and prior to July first,
32 nineteen hundred fifty-eight, nor shall any excess of wages over two
33 hundred and twenty-seven dollars and fifty cents a month be taken into
34 account in computing compensation where death occurred on or after July
35 first, nineteen hundred forty-eight and prior to July first, nineteen
36 hundred fifty-four, nor shall any excess of wages over one hundred and
37 eighty-two dollars a month be taken into account in computing compen-
38 sation where the death occurred on or after June first, nineteen hundred
39 forty-six and prior to July first, nineteen hundred forty-eight. When
40 death occurred on or after July first, nineteen hundred forty-eight and
41 prior to January first, nineteen hundred seventy-eight, computing
42 compensation to the widow or widower and children of a deceased employee
43 in no event shall wages be deemed to be less than one hundred and thirty
44 dollars a month. All questions of dependency shall be determined as of
45 the time of the accident. When death occurred on or after January first,
46 nineteen hundred seventy-eight, in no event shall wages be deemed to be
47 less than forty-five dollars a week in computing compensation to the
48 widow or widower and/or children of the deceased employee.
49 § 4. Paragraph w of subdivision 3 of section 15 of the workers'
50 compensation law, as relettered by chapter 286 of the laws of 1970, is
51 amended to read as follows:
52 w. Other cases. In all other cases [in this class] of permanent
53 partial disability, the compensation shall be sixty-six and two-thirds
54 [per centum] percent of the difference between [his] the injured employ-
55 ee's average weekly wages and his or her wage-earning capacity thereaft-
56 er in the same employment or otherwise[,]. Compensation under this para-
S. 3322 6 A. 6163

1 graph shall be payable during the continuance of such permanent partial
2 disability, but subject to reconsideration of the degree of such impair-
3 ment by the board on its own motion or upon application of any party in
4 interest however, all compensation payable under this paragraph shall
5 not exceed (i) five hundred twenty-five weeks in cases in which the loss
6 of wage-earning capacity is greater than ninety-five percent; (ii) five
7 hundred weeks in cases in which the loss of wage-earning capacity is
8 greater than ninety percent but not more than ninety-five percent; (iii)
9 four hundred seventy-five weeks in cases in which the loss of wage-earn-
10 ing capacity is greater than eighty-five percent but not more than nine-
11 ty percent; (iv) four hundred fifty weeks in cases in which the loss of
12 wage-earning capacity is greater than eighty percent but not more than
13 eighty-five percent; (v) four hundred twenty-five weeks in cases in
14 which the loss of wage-earning capacity is greater than seventy-five
15 percent but not more than eighty percent; (vi) four hundred weeks in
16 cases in which the loss of wage-earning capacity is greater than seventy
17 percent but not more than seventy-five percent; (vii) three hundred
18 seventy-five weeks in cases in which the loss of wage-earning capacity
19 is greater than sixty percent but not more than seventy percent; (viii)
20 three hundred fifty weeks in cases in which the loss of wage-earning
21 capacity is greater than fifty percent but not more than sixty percent;
22 (ix) three hundred weeks in cases in which the loss of wage-earning
23 capacity is greater than forty percent but not more than fifty percent;
24 (x) two hundred seventy-five weeks in cases in which the loss of wage-
25 earning capacity is greater than thirty percent but not more than forty
26 percent; (xi) two hundred fifty weeks in cases in which the loss of
27 wage-earning capacity is greater than fifteen percent but not more than
28 thirty percent; and (xii) two hundred twenty-five weeks in cases in
29 which the loss of wage-earning capacity is fifteen percent or less. For
30 those claimants classified as permanently partially disabled who no
31 longer receive indemnity payments because they have surpassed their
32 number of maximum benefit weeks, the following provisions will apply:
33 (1) There will be a presumption that medical services shall continue
34 notwithstanding the completion of the time period for compensation set
35 forth in this section and the burden of going forward and the burden of
36 proof will lie with the carrier, self-insured employer or state insur-
37 ance fund in any application before the board to discontinue or suspend
38 such services. Medical services will continue during the pendency of any
39 such application and any appeals thereto.
40 (2) The board is directed to promulgate regulations that establish an
41 independent review and appeal by an outside agent or entity of the
42 board's choosing of any administrative law judge's determination to
43 discontinue or suspend medical services before a final determination of
44 the board.
45 § 5. The workers' compensation law is amended by adding a new section
46 35 to read as follows:
47 § 35. Safety net. 1. Return to work. (a) The commissioner of labor
48 will issue a report to the governor, the speaker of the assembly, the
49 majority leader of the senate, and the chairs of the labor, ways and
50 means and finance committees of the assembly and senate on or before
51 December first, two thousand seven, making recommendations as to how to
52 assure that workers categorized by the board as permanently partially
53 disabled return to gainful employment to the greatest extent practica-
54 ble. Such commissioner will consider administrative and legislative
55 remedies, and shall include estimates of cost in the report. The report
56 shall examine best practices and the laws of other jurisdictions, as
S. 3322 7 A. 6163

1 well as any relevant programs authorized by New York law. The report
2 shall additionally examine return to work practices as implemented by
3 carriers, the state insurance fund, employers, and the board. It shall
4 also examine the relationship of vocational rehabilitation to ultimate
5 return to work.
6 (b) The commissioner of labor will be assisted by an advisory council
7 constituted of six persons appointed by the governor as follows:
8 (i) a representative of organized labor appointed upon recommendation
9 of the New York State American Federation of Labor-Congress of Indus-
10 trial Organizations;
11 (ii) a representative of the business community appointed upon recom-
12 mendation of the Business Council of New York State, Incorporated;
13 (iii) one person upon recommendation of the majority leader of the
14 senate;
15 (iv) one person upon recommendation of the speaker of the assembly;
16 and
17 (v) two other persons in the governor's discretion.
18 2. Total industrial disability. No provision of this article shall in
19 any way be read to derogate or impair current or future claimants'
20 existing rights to apply at any time to obtain the status of total
21 industrial disability under current case law.
22 3. Extreme hardship redetermination. In cases where the loss of wage-
23 earning capacity is greater than eighty percent, a claimant may request,
24 within the year prior to the scheduled exhaustion of indemnity benefits
25 under paragraph w of subdivision three of section fifteen of this arti-
26 cle, that the board reclassify the claimant to permanent total disabili-
27 ty or total industrial disability due to factors reflecting extreme
28 hardship.
29 4. Annual safety net reporting. The commissioner of labor, in
30 conjunction with the board and the superintendent of insurance, shall
31 track all claimants who have been awarded permanent partial disability
32 status and report annually on December first, beginning in two thousand
33 eight, to the governor, the speaker of the assembly, the majority leader
34 of the senate, and the chairs of the labor, ways and means and finance
35 committees of the assembly and senate:
36 (i) The number of said claimants who have:
37 (1) returned to gainful employment;
38 (2) been recategorized as being totally industrially disabled;
39 (3) remain subject to duration limitations set forth in paragraph w of
40 subdivision three of section fifteen of this article; and
41 (4) not returned to work, and whose indemnity payments have expired.
42 (ii) The additional steps the commissioner contemplates are necessary
43 to minimize the number of workers who have neither returned to work nor
44 been recategorized from permanent partial disability.
45 § 6. Subdivision 2 of section 50 of the workers' compensation law, as
46 amended by chapter 605 of the laws of 1946, is amended to read as
47 follows:
48 2. By insuring and keeping insured the payment of such compensation
49 with any stock corporation, mutual corporation or reciprocal insurer
50 authorized to transact the business of [workmen's] workers' compensation
51 insurance in this state through a policy issued under the law of this
52 state.
53 § 7. Section 52 of the workers' compensation law, as amended by chap-
54 ter 419 of the laws of 1961, subdivisions 1 and 5 as amended by chapter
55 924 of the laws of 1990, subdivision 2 as amended by chapter 460 of the
S. 3322 8 A. 6163

1 laws of 1991 and subdivision 3 as amended by chapter 845 of the laws of
2 1965, is amended to read as follows:
3 § 52. Effect of failure to secure compensation. 1. (a) Failure to
4 secure the payment of compensation for five or less employees within a
5 twelve month period shall constitute a misdemeanor, and is punishable by
6 a fine of not less than [five hundred] one thousand nor more than [two]
7 five thousand [five hundred] dollars [or imprisonment for not more than
8 one year, or both]. Failure to secure the payment of compensation for
9 more than five employees within a twelve month period shall constitute a
10 class E felony, and is punishable by a fine of not less than five thou-
11 sand dollars nor more than fifty thousand dollars in addition to any
12 other penalties otherwise provided by law. It shall be an affirmative
13 defense to any criminal prosecution under this section that the employer
14 took reasonable steps to secure compensation.
15 (b) Where any person has previously been convicted of a failure to
16 secure the payment of compensation within the preceding five years, upon
17 conviction for a [second] subsequent violation such person shall be
18 guilty of a class D felony, and fined not less than [one] ten thousand
19 nor more than [five] fifty thousand dollars in addition to any other
20 penalties including fines otherwise provided by law[, and upon
21 conviction for a third or subsequent violation such person may be fined
22 up to seven thousand five hundred dollars in addition to any other
23 penalties including fines otherwise provided by law].
24 (c) Where the employer is a corporation, the president, secretary and
25 treasurer thereof shall be liable for failure to secure the payment of
26 compensation under this section. It shall be an affirmative defense to
27 any action against any officer of a corporation under this section that
28 the officer took reasonable steps to ensure that the corporation secured
29 compensation, that proper internal procedures were in effect to do so,
30 and that proper internal controls existed to monitor compliance with
31 said procedures.
32 (d) If at any time an employer intentionally and materially under-
33 states or conceals payroll, or intentionally and materially misrepre-
34 sents or conceals employee duties so as to avoid proper classification
35 for calculation of premium paid to secure compensation, or intentionally
36 and materially misrepresents or conceals information pertinent to the
37 calculation of premium paid to secure compensation, such employer shall
38 be deemed to have failed to secure compensation and shall be subject to
39 the sanctions applicable to this section.
40 (e) A stop-work order issued because an employer is deemed to have
41 failed to secure compensation under section one hundred forty-one-a of
42 this chapter shall have no effect upon an employer's or carrier's duty
43 to provide benefits under this chapter or upon any of the employer's or
44 carrier's rights and defenses.
45 2. All fines imposed under this chapter, except as herein otherwise
46 provided, shall be paid directly and immediately by the officer collect-
47 ing the same to the chairman, and shall be paid by him into the unin-
48 sured employers' fund created under section twenty-six-a of this chap-
49 ter, provided, however, that all such fines collected by justices of
50 towns and villages shall be paid to the state comptroller in accordance
51 with the provisions of section twenty-seven of the town law and section
52 4-410 of the village law respectively.
53 3. In any prosecution hereunder the failure of the employer to file
54 with the chairman, within ten days after demand, a statement subscribed
55 by the employer and affirmed by him as true under the penalties of
56 perjury showing specifically (a) the name of the stock company, mutual
S. 3322 9 A. 6163

1 corporation or reciprocal insurer in which such employer is insured and
2 the number and the date of issuance and term of such policy of insur-
3 ance, or (b) that the said employer is insured with the state fund in
4 which case he shall give the number of such policy of insurance, the
5 date of issuance and term thereof, or (c) that the said employer has
6 been authorized to do business as a self-insurer pursuant to section
7 fifty of [the workmen's compensation law] this article, giving the date
8 of said authorization, or (d) a legal reason, if any, why said employer
9 is not required to secure compensation, shall constitute prima facie
10 evidence that the employer has failed to secure compensation as herein
11 required. The statement to be filed herein shall be subscribed by the
12 employer or if the employer is a corporation by one of the officers
13 herein named in which he shall state that he has read such statement
14 subscribed by him and knows the contents thereof and that same is true
15 of his own knowledge.
16 4. If, however, there has been an accident and the board shall have
17 made an award against the employer as a non-insured employer, the making
18 of such award, except in a case where the employer had secured compen-
19 sation insurance which was in effect at the time of the accident but the
20 carrier later became insolvent, shall constitute prima facie evidence of
21 an employment by the employer of an employee in an occupation in which
22 the said employer was required to carry compensation and of the failure
23 of the employer to secure the payment of [workmen's] workers' compen-
24 sation on the date of the accident involved in said award. A certified
25 copy of such award shall be received as competent evidence of the making
26 thereof in any criminal prosecution hereunder.
27 5. The chair, upon finding that an employer has failed for a period of
28 not less than ten consecutive days to make the provision for payment of
29 compensation required by section fifty of this [chapter] article, may
30 impose upon such employer, in addition to all other penalties, fines or
31 assessments provided for in this chapter, a penalty of [two hundred
32 fifty] one thousand dollars for each ten day period of non-compliance or
33 a sum not in excess of two [percent of] times the cost of compensation
34 for its payroll for the period of such failure, which sum shall be paid
35 into the uninsured employers' fund created under section twenty-six-a of
36 this chapter. When an employer fails to provide business records suffi-
37 cient to enable the chair to determine the employer's payroll for the
38 period requested for the calculation of the penalty provided in this
39 section, the imputed weekly payroll for each employee, corporate offi-
40 cer, sole proprietor, or partner shall be the New York state average
41 weekly wage, multiplied by 1.5. Where the employer is a corporation, the
42 president, secretary and treasurer thereof shall be liable for the
43 penalty. If the employer shall within thirty days after notice of the
44 imposition of a penalty by the chair pursuant to this subdivision make
45 an application in affidavit form for a redetermination review of such
46 penalty the chairman shall make a decision in writing on the issues
47 raised on such application.
48 § 8. Section 131 of the workers' compensation law, as amended by chap-
49 ter 135 of the laws of 1998, is amended to read as follows:
50 § 131. Payroll records. (1) Every employer subject to the provisions
51 of this chapter shall keep a true and accurate record of the number of
52 his or her employees, the classification of employees, information
53 regarding employee accidents and the wages paid by him or her for a
54 period of four years after each entry therein, which records shall be
55 open to inspection at any time, and as often as may be necessary to
56 verify the same by investigators of the board, by the authorized audi-
S. 3322 10 A. 6163

1 tors, accountants or inspectors of the carrier with whom the employer is
2 insured, or by the authorized auditors, accountants or inspectors of any
3 workers' compensation insurance rating board or bureau operating under
4 the authority of the insurance law and of which board or bureau such
5 carrier is a member or the group trust of which the employer is a
6 member. Any and all records required by law to be kept by such employer
7 upon which the employer makes or files a return concerning wages paid to
8 employees shall form part of the records described in this section and
9 shall be open to inspection in the same manner as provided in this
10 section. Any employer who shall fail to keep such records, who shall
11 willfully fail to furnish such record as required in this section or who
12 shall falsify any such records, shall be guilty of a misdemeanor and
13 subject to a fine of not less than five nor more than ten thousand
14 dollars in addition to any other penalties otherwise provided by law,
15 except that any such employer that has previously been subject to crimi-
16 nal penalties under this section within the prior ten years shall be
17 guilty of a class E felony, and subject to a fine of not less than ten
18 nor more than twenty-five thousand dollars in addition to any penalties
19 otherwise provided by law.
20 (2) Employers subject to [subdivision] subsection (e) of section two
21 thousand three hundred four of the insurance law and subdivision two of
22 section eighty-nine of this chapter shall keep a true and accurate
23 record of hours worked for all construction classification employees.
24 The willful failure to keep such record, or the knowing falsification of
25 any such record, may be prosecuted as insurance fraud in accordance with
26 the provisions of section 176.05 of the penal law.
27 (3) The chair, upon finding that an employer has failed to keep true
28 and accurate records as required by this section, may impose upon such
29 employer, in addition to all other penalties, fines or assessments
30 provided for in this chapter, one thousand dollars for each ten day
31 period of non-compliance or a sum not in excess of two times the cost of
32 compensation for its payroll for the period of such violation, which sum
33 shall be paid into the uninsured employers' fund created under section
34 twenty-six-a of this chapter. When an employer fails to provide business
35 records sufficient to enable the chair to determine the employer's
36 payroll for the period requested for the calculation of the penalty
37 provided in this section, the imputed weekly payroll for each employee,
38 corporate officer, sole proprietor, or partner shall be the New York
39 state average weekly wage, multiplied by 1.5. Where the employer is a
40 corporation, the corporation and any of the following shall be liable
41 for the penalty provided in this subdivision: the president, secretary
42 and treasurer. If the employer shall within thirty days after notice of
43 the imposition of a penalty by the chair pursuant to this subdivision
44 make an application in affidavit form for a redetermination review of
45 such penalty, the chair shall make a decision in writing on the issues
46 raised on such application.
47 § 9. Subdivision 4 of section 114 of the workers' compensation law, as
48 amended by chapter 635 of the laws of 1996, is amended and a new subdi-
49 vision 5 is added to read as follows:
50 4. Consistent with the provisions of the criminal procedure law, in
51 any prosecution alleging a violation of subdivision one, two or three of
52 this section, or sections fifty-two and one hundred thirty-one of this
53 chapter, in which the act or acts alleged may also constitute a
54 violation of the penal or other law, the prosecuting official may charge
55 a person pursuant to the provisions of this section and in the same
56 accusatory instrument with a violation of such other law.
S. 3322 11 A. 6163

1 5. A person (a) who is convicted of a second or subsequent offense
2 under this section within ten years of the prior conviction, or (b) who
3 violates any provision of this section concerning two or more claimants,
4 shall be guilty of a class D felony.
5 § 10. Section 114-a of the workers' compensation law is amended by
6 adding a new subdivision 3 to read as follows:
7 3. If the board or any court having jurisdiction over proceedings in
8 respect of any claim for compensation determines that the proceedings in
9 respect of such claim, including any appeals, have been instituted or
10 continued without reasonable ground:
11 (i) the cost of such proceedings shall be assessed against the party
12 who has so instituted or continued the proceedings, which shall be paya-
13 ble to the board for administrative expenses pursuant to section one
14 hundred fifty-one of this chapter;
15 (ii) reasonable attorneys' fees shall be assessed against an attorney
16 or licensed representative who has instituted or continued proceedings
17 without reasonable grounds, which assessment shall be payable to the
18 board for administrative expenses pursuant to section one hundred
19 fifty-one of this chapter. Fees awarded under this provision may not be
20 recouped from the party; and
21 (iii) such assessments shall be in addition to any other penalty
22 permitted under this chapter.
23 § 11. Section 141 of the workers' compensation law, as amended by
24 chapter 398 of the laws of 1997, is amended to read as follows:
25 § 141. General powers and duties of the [chairman] chair. The [chair-
26 man] chair shall be the administrative head of the workers' compensation
27 board and shall exercise the powers and perform the duties in relation
28 to the administration of this chapter heretofore vested in the commis-
29 sioner of labor by chapter fifty of the laws of nineteen hundred twen-
30 ty-one, and acts amendatory thereof, and by this chapter excepting arti-
31 cle six thereof, and except in so far as such powers and duties are
32 vested by this chapter in the workers' compensation board. The [chair-
33 man] chair shall preside at all meetings of the board and shall appoint
34 all committees and panels of the board; shall designate the times and
35 places for the hearing of claims under this chapter and shall perform
36 all administrative functions of the board as in this chapter set forth.
37 The [chairman] chair, in the name of the board, shall enforce all the
38 provisions of this chapter, and may make administrative regulations and
39 orders providing for the receipt, indexing and examining of all notices,
40 claims and reports, for the giving of notice of hearings and of deci-
41 sions, for certifying of records, for the fixing of the times and places
42 for the hearing of claims, and for providing for the conduct of hearings
43 and establishing of calendar practice to the extent not inconsistent
44 with the rules of the board. The [chairman] chair shall issue and may
45 revoke certificates of authorization of physicians, chiropractors and
46 podiatrists as provided in sections thirteen-a, thirteen-k and thir-
47 teen-1 of this chapter, and licenses for medical bureaus and x-ray and
48 other laboratories under the provisions of section thirteen-c of this
49 chapter, issue stop work orders as provided in section one hundred
50 forty-one-a of this article, and shall have and exercise all powers not
51 otherwise provided for herein in relation to the administration of this
52 chapter heretofore expressly conferred upon the commissioner of labor by
53 any of the provisions of this chapter, or of the labor law. The [chair-
54 man] chair, on behalf of the workers' compensation board, shall enter
55 into the agreement provided for in section one hundred seventy-one-h of
56 the tax law, and shall take such other actions as may be necessary to
S. 3322 12 A. 6163

1 carry out the agreement provided for in such section for matching bene-
2 ficiary records of workers' compensation with information provided by
3 employers to the state directory of new hires for the purposes of veri-
4 fying eligibility for such benefits and for administering workers'
5 compensation.
6 § 12. The workers' compensation law is amended by adding a new section
7 141-a to read as follows:
8 § 141-a. Civil enforcement. 1. To investigate violations of sections
9 fifty-two and one hundred thirty-one of this chapter, the chair or his
10 or her designees shall have the power to:
11 (a) Enter and inspect any place of business at any reasonable time for
12 the purpose of investigating employer compliance.
13 (b) Examine and copy business records.
14 (c) Administer oaths and affirmations.
15 (d) Issue and serve subpoenas for attendance of witnesses or
16 production of business records, books, papers, correspondence, memoran-
17 da, and other records. Such subpoenas may be served without the state on
18 any defendant over whom a New York court would have personal jurisdic-
19 tion under the civil practice law and rules as to the subject matter
20 under investigation, provided the information or testimony sought bears
21 a reasonable relationship to the subject matter under investigation.
22 2. The chair shall specify by rule the business records that employers
23 must maintain and produce to comply with this section.
24 3. If a person has refused to obey a subpoena, the chair may commence
25 an action in supreme court of any county where venue is proper for an
26 order requiring compliance with the subpoena. Costs, including reason-
27 able attorney's fees, incurred by the chair to obtain and enforce an
28 order granting, in whole or in part, a petition to enforce a subpoena
29 shall be taxed against the subpoenaed party.
30 4. (a) Whenever the chair determines that an employer who is required
31 to secure compensation in accordance with this chapter has failed to
32 secure such compensation, or where an employer has failed to pay penal-
33 ties assessed against it pursuant to this chapter, such failure shall be
34 deemed an immediate serious danger to public health, safety, or welfare
35 sufficient to justify service by the chair of a stop-work order on the
36 employer, requiring the cessation of all business operations effective
37 immediately, except where the employer's failure concerns only domestic
38 or child care workers in his or her own household. The chair may issue
39 such order, which shall take effect as to a particular employer worksite
40 when served at that worksite, or as to all employer worksites in the
41 state for which the employer is not in compliance when served on the
42 employer. A stop-work order may be served with regard to an employer's
43 worksite by posting a copy of the stop-work order in a conspicuous
44 location at the worksite. The order shall remain in effect until the
45 chair directs that the stop-work order be removed, upon a determination
46 that the employer has come into compliance with the coverage require-
47 ments of this chapter and has paid any penalty assessed under this chap-
48 ter. If the employer shall within thirty days after notice of the stop-
49 work order make an application in affidavit form for a redetermination
50 review of such order the chair shall make a decision in writing on the
51 issues raised in such application. The chair may direct a conditional
52 release from a stop-work order upon a finding that the employer has
53 complied with coverage requirements of this chapter and has agreed to
54 remit periodic payments of the penalty pursuant to a payment agreement
55 schedule with the chair. If an agreement or order of conditional release
56 is issued, failure by the employer to meet any term or condition of such
S. 3322 13 A. 6163

1 payment agreement shall result in the immediate reinstatement of the
2 stop-work order and the entire unpaid balance of the penalty shall
3 become immediately due. The chair may require an employer who is found
4 to have failed to comply with the coverage requirements of this chapter
5 to file with the board, as a condition of release from a stop-work
6 order, periodic reports for a probationary period that shall not exceed
7 two years, and that demonstrate the employer's continued compliance with
8 this chapter. The board shall by rule specify the reports required and
9 the time for filing under this subdivision.
10 (b) A stop-work order issued against an employer under this section
11 shall be in effect against any non-compliant substantially-owned affil-
12 iated entity.
13 5. The chair may file a complaint in the supreme court of any county
14 where venue is proper: (a) to enjoin any employer from violating a stop-
15 work order; or (b) to enjoin any other practice prohibited by section
16 fifty-two or one hundred thirty-one of this chapter. In any action
17 brought by the chair pursuant to this section in which it prevails, the
18 court may award costs, including the reasonable costs of investigation
19 and reasonable attorneys' fees.
20 6. Any judgment obtained by the chair and any penalty due under this
21 section shall, until collected, constitute a lien upon the entire inter-
22 est of the employer, legal or equitable, in any property, real or
23 personal, tangible or intangible; however, such lien is subordinate to
24 claims for unpaid wages and any prior recorded liens, and a lien created
25 by this section is not valid against any person who, subsequent to such
26 lien and in good faith and for value, purchases real or personal proper-
27 ty from such employer or becomes the mortgagee on real or personal prop-
28 erty of such employer, or against a subsequent attaching creditor,
29 unless, with respect to real estate of the employer, a notice of the
30 lien is recorded in the public records of the county where the real
31 estate is located, and with respect to personal property of the employ-
32 er, the notice is recorded with the secretary of state.
33 7. In any court proceedings under this section, the chair shall be
34 represented by the attorney general.
35 § 13. The workers' compensation law is amended by adding a new section
36 141-b to read as follows:
37 § 141-b. Suspension and debarment. Any person subject to a final
38 assessment of civil fines or penalties or a stop-work order, or that has
39 been convicted of a misdemeanor for a violation of sections twenty-six,
40 fifty-two or one hundred thirty-one of this chapter, and any substan-
41 tially-owned affiliated entity of such person, shall be ineligible to
42 submit a bid on or be awarded any public work contract or subcontract
43 with the state, any municipal corporation or public body for a period of
44 one year from the final determination or conviction. Any person
45 convicted of a felony under this article, or a misdemeanor under
46 sections one hundred twenty-five and one hundred twenty-five-a of this
47 chapter shall be ineligible to submit a bid on or be awarded any public
48 work contract or subcontract with the state, any municipal corporation
49 or public body for a period of five years from such conviction.
50 § 14. The workers' compensation law is amended by adding a new section
51 141-c to read as follows:
52 § 141-c. Coordination of forms. The board, the commissioner of labor,
53 the commissioner of taxation and finance, the commissioner of motor
54 vehicles, and the superintendent of insurance shall consult on an ongo-
55 ing basis to coordinate the amendment of forms used to gather data help-
56 ful in identifying fraud, so as to promote effective use and sharing of
S. 3322 14 A. 6163

1 such information for identifying fraud in the area of workers' compen-
2 sation. Through such consultations and other means, these agencies shall
3 study the implementation of appropriate practicable technology to verify
4 the authenticity of forms, including certificates of coverage.
5 § 15. The workers' compensation law is amended by adding a new section
6 114-c to read as follows:
7 § 114-c. Multiple offenses. Any provision of this chapter which
8 imposes additional penalties for a second or subsequent offense shall
9 apply whenever the prior offense was committed by a substantially owned
10 affiliated entity of the party subject to penalty.
11 § 16. Subdivision 5 of section 136 of the workers' compensation law,
12 as added by chapter 635 of the laws of 1996, is amended to read as
13 follows:
14 5. Disclosure of information. The inspector general shall not publicly
15 disclose information which is:
16 (a) a part of an ongoing investigation or prosecution; or
17 (b) specifically prohibited from disclosure by any other provision of
18 law.
19 The disclosure of information in order to coordinate investigations
20 with the insurance frauds bureau of the department of insurance, includ-
21 ing the unit for workers' compensation insurance frauds investigations
22 within such insurance frauds bureau, and any frauds investigations unit
23 of the state insurance fund, to provide the report required by paragraph
24 (c) of subdivision three of this section or to apprise the chair of
25 ongoing investigations shall not be considered public disclosure for
26 purposes of this section.
27 § 17. Section 406 of the insurance law, as amended by chapter 635 of
28 the laws of 1996, is amended to read as follows:
29 § 406. Immunity. In the absence of fraud or bad faith, no person shall
30 be subject to civil liability, and no civil cause of action of any
31 nature shall arise against such person (i) for any information relating
32 to suspected fraudulent insurance transactions furnished to law enforce-
33 ment officials, their agents and employees; and (ii) for any information
34 relating to suspected fraudulent insurance transactions furnished to
35 other persons subject to the provisions of this chapter; and (iii) for
36 any such information furnished in reports to the insurance frauds
37 bureau, its agents or employees or [the workers' compensation fraud
38 inspector general] any state agency investigating fraud or misconduct
39 relating to workers' compensation insurance, its agents or employees.
40 Nor shall the superintendent or any employee of the insurance frauds
41 bureau, in the absence of fraud or bad faith, be subject to civil
42 liability and no civil cause of action of any nature shall arise against
43 them by virtue of the publication of any report or bulletin related to
44 the official activities of the insurance frauds bureau. Nothing herein
45 is intended to abrogate or modify in any way any common law privilege of
46 immunity heretofore enjoyed by any person.
47 § 18. Paragraph 3 of subsection (e) of section 697 of the tax law, as
48 amended by chapter 748 of the laws of 2005, is amended to read as
49 follows:
50 (3) Nothing herein shall be construed to prohibit the department, its
51 officers or employees from furnishing information to the office of
52 temporary and disability assistance relating to the payment of the cred-
53 it for certain household and dependent care services necessary for gain-
54 ful employment under subsection (c) of section six hundred six of this
55 article and the earned income credit under subsection (d) of section six
56 hundred six of this article, or pursuant to a local law enacted by a
S. 3322 15 A. 6163

1 city having a population of one million or more pursuant to subsection
2 (f) of section thirteen hundred ten of this chapter, only to the extent
3 necessary to calculate qualified state expenditures under paragraph
4 seven of subdivision (a) of section four hundred nine of the federal
5 social security act or to document the proper expenditure of federal
6 temporary assistance for needy families funds under section four hundred
7 three of such act. The office of temporary and disability assistance may
8 redisclose such information to the United States department of health
9 and human services only to the extent necessary to calculate such quali-
10 fied state expenditures or to document the proper expenditure of such
11 federal temporary assistance for needy families funds. Nothing herein
12 shall be construed to prohibit the delivery by the commissioner to a
13 commissioner of jurors, appointed pursuant to section five hundred four
14 of the judiciary law, or, in counties within cities having a population
15 of one million or more, to the county clerk of such county, of a mailing
16 list of individuals to whom income tax forms are mailed by the commis-
17 sioner for the sole purpose of compiling a list of prospective jurors as
18 provided in article sixteen of the judiciary law. Provided, however,
19 such delivery shall only be made pursuant to an order of the chief
20 administrator of the courts, appointed pursuant to section two hundred
21 ten of the judiciary law. No such order may be issued unless such chief
22 administrator is satisfied that such mailing list is needed to compile a
23 proper list of prospective jurors for the county for which such order is
24 sought and that, in view of the responsibilities imposed by the various
25 laws of the state on the department, it is reasonable to require the
26 commissioner to furnish such list. Such order shall provide that such
27 list shall be used for the sole purpose of compiling a list of prospec-
28 tive jurors and that such commissioner of jurors, or such county clerk,
29 shall take all necessary steps to insure that the list is kept confiden-
30 tial and that there is no unauthorized use or disclosure of such list.
31 Furthermore, nothing herein shall be construed to prohibit the delivery
32 to a taxpayer or his or her duly authorized representative of a certi-
33 fied copy of any return or report filed in connection with his or her
34 tax or to prohibit the publication of statistics so classified as to
35 prevent the identification of particular reports or returns and the
36 items thereof, or the inspection by the attorney general or other legal
37 representatives of the state of the report or return of any taxpayer or
38 of any employer filed under section one hundred seventy-one-h of this
39 chapter, where such taxpayer or employer shall bring action to set aside
40 or review the tax based thereon, or against whom an action or proceeding
41 under this chapter or under this chapter and article eighteen of the
42 labor law has been recommended by the commissioner, the commissioner of
43 labor with respect to unemployment insurance matters, or the attorney
44 general or has been instituted, or the inspection of the reports or
45 returns required under this article by the comptroller or duly desig-
46 nated officer or employee of the state department of audit and control,
47 for purposes of the audit of a refund of any tax paid by a taxpayer
48 under this article, or the furnishing to the state department of labor
49 of unemployment insurance information obtained or derived from quarterly
50 combined withholding, wage reporting and unemployment insurance returns
51 required to be filed by employers pursuant to paragraph four of
52 subsection (a) of section six hundred seventy-four of this article, for
53 purposes of administration of such department's [employment security
54 programs, evaluation of employment and training programs for which such
55 department has administrative, reporting, monitoring or evaluating
56 responsibilities] unemployment insurance program, employment services
S. 3322 16 A. 6163

1 program, federal and state employment and training programs, employment
2 statistics and labor market information programs, worker protection
3 programs, federal programs for which the department has administrative
4 responsibility or for other purposes deemed appropriate by the commis-
5 sioner of labor consistent with the provisions of the labor law, and
6 redisclosure of such information [when necessary to enable such depart-
7 ment to comply with] in accordance with the provisions of [section]
8 sections five hundred thirty-six and five hundred thirty-seven of the
9 labor law or any other applicable law, or the furnishing to the state
10 office of temporary and disability assistance of information obtained or
11 derived from New York state personal income tax returns as described in
12 paragraph (b) of subdivision two of section one hundred seventy-one-g of
13 this chapter for the purpose of reviewing support orders enforced pursu-
14 ant to title six-A of article three of the social services law to aid in
15 the determination of whether such orders should be adjusted, or the
16 furnishing of information obtained from the reports required to be
17 submitted by employers regarding newly hired or re-hired employees
18 pursuant to section one hundred seventy-one-h of this chapter to the
19 state office of temporary and disability assistance, the state depart-
20 ment of health, the state department of labor and the workers' compen-
21 sation board for purposes of administration of the child support
22 enforcement program, verification of individuals' eligibility for one or
23 more of the programs specified in subsection (b) of section eleven
24 hundred thirty-seven of the federal social security act and for other
25 public assistance programs authorized by state law, and administration
26 of the state's employment security and workers' compensation programs,
27 and to the national directory of new hires established pursuant to
28 section four hundred fifty-three-A of the federal social security act
29 for the purposes specified in such section, or the furnishing to the
30 state office of temporary and disability assistance of the amount of an
31 overpayment of income tax and interest thereon certified to the comp-
32 troller to be credited against past-due support pursuant to section one
33 hundred seventy-one-c of this chapter and of the name and social securi-
34 ty number of the taxpayer who made such overpayment, or the disclosing
35 to the commissioner of finance of the city of New York, pursuant to
36 section one hundred seventy-one-l of this chapter, of the amount of an
37 overpayment and interest thereon certified to the comptroller to be
38 credited against a city of New York tax warrant judgment debt and of the
39 name and social security number of the taxpayer who made such overpay-
40 ment, or the furnishing to the New York state higher education services
41 corporation of the amount of an overpayment of income tax and interest
42 thereon certified to the comptroller to be credited against the amount
43 of a default in repayment of a guaranteed student loan pursuant to
44 section one hundred seventy-one-d of this chapter and of the name and
45 social security number of the taxpayer who made such overpayment, or the
46 furnishing to the state department of health of the information required
47 by subdivision two-a of section two thousand five hundred eleven of the
48 public health law, or the furnishing to the state university of New York
49 or the city university of New York respectively or the attorney general
50 on behalf of such state or city university the amount of an overpayment
51 of income tax and interest thereon certified to the comptroller to be
52 credited against the amount of a default in repayment of a state univer-
53 sity loan pursuant to section one hundred seventy-one-e of this chapter
54 and of the name and social security number of the taxpayer who made such
55 overpayment, or the disclosing to a state agency, pursuant to section
56 one hundred seventy-one-f of this chapter, of the amount of an overpay-
S. 3322 17 A. 6163

1 ment and interest thereon certified to the comptroller to be credited
2 against a past-due legally enforceable debt owed to such agency and of
3 the name and social security number of the taxpayer who made such over-
4 payment, or the furnishing of employee and employer information obtained
5 through the wage reporting system, pursuant to section one hundred
6 seventy-one-a of this chapter, as added by chapter five hundred forty-
7 five of the laws of nineteen hundred seventy-eight, to the state office
8 of temporary and disability assistance for the purpose of verifying
9 eligibility for and entitlement to amounts of benefits under the social
10 services law or similar law of another jurisdiction, locating absent
11 parents or other persons legally responsible for the support of appli-
12 cants for or recipients of public assistance and care under the social
13 services law and persons legally responsible for the support of a recip-
14 ient of services under section one hundred eleven-g of the social
15 services law and, in appropriate cases, establishing support obligations
16 pursuant to the social services law and the family court act or similar
17 provision of law of another jurisdiction for the purpose of evaluating
18 the effect on earnings of participation in employment, training or other
19 programs designed to promote self-sufficiency authorized pursuant to the
20 social services law by current recipients of public assistance and care
21 and by former applicants and recipients of public assistance and care,
22 (except that with regard to former recipients, information which relates
23 to a particular former recipient shall be provided with client identify-
24 ing data deleted), and to the state department of labor, or other indi-
25 viduals designated by the commissioner of labor, for the purpose of the
26 administration of such department's [employment security programs,
27 public assistance work programs] unemployment insurance program, employ-
28 ment services program, federal and state employment and training
29 programs, employment statistics and labor market information programs,
30 worker protection programs, federal programs for which the department
31 has administrative responsibility or for other purposes deemed appropri-
32 ate by the commissioner of labor consistent with the provisions of the
33 labor law[, as well as for the evaluation of the effect on earnings of
34 participation in training programs with respect to which the department
35 of labor has reporting, monitoring, administration, or evaluation
36 responsibilities], and redisclosure of such information in accordance
37 with the provisions of sections five hundred thirty-six and five hundred
38 thirty-seven of the labor law, or the furnishing of information, which
39 is obtained from the wage reporting system operated pursuant to section
40 one hundred seventy-one-a of this chapter, as added by chapter five
41 hundred forty-five of the laws of nineteen hundred seventy-eight, to the
42 state office of temporary and disability assistance so that it may
43 furnish such information to public agencies of other jurisdictions with
44 which the state office of temporary and disability assistance has an
45 agreement pursuant to paragraph (h) or (i) of subdivision three of
46 section twenty of the social services law, and to the state office of
47 temporary and disability assistance for the purpose of fulfilling obli-
48 gations and responsibilities otherwise incumbent upon the state depart-
49 ment of labor, under section one hundred twenty-four of the federal
50 family support act of nineteen hundred eighty-eight, by giving the
51 federal parent locator service, maintained by the federal department of
52 health and human services, prompt access to such information as required
53 by such act, or to the state department of health to establish eligibil-
54 ity under the child health insurance plan pursuant to subdivision two-a
55 of section two thousand five hundred eleven of the public health law and
56 to verify eligibility for the program for elderly pharmaceutical insur-
S. 3322 18 A. 6163

1 ance coverage under title three of article two of the elder law, or to
2 the office of vocational and educational services for individuals with
3 disabilities of the education department, the commission for the blind
4 and visually handicapped and any other state vocational rehabilitation
5 agency, for purposes of obtaining reimbursement from the federal social
6 security administration for expenditures made by such office, commission
7 or agency on behalf of disabled individuals who have achieved economic
8 self-sufficiency or to the higher education services corporation for the
9 purpose of assisting the corporation in default prevention and default
10 collection of federal guaranteed student loans through the federal fami-
11 ly education loan program as codified in chapter twenty-eight of title
12 twenty of the United States code; provided, however, that such informa-
13 tion shall be limited to the names, social security numbers, home and/or
14 business addresses, and employer names of defaulted or delinquent
15 student loan borrowers.
16 Provided, however, that with respect to employee information the
17 office of temporary and disability assistance shall only be furnished
18 with the names, social security account numbers and gross wages of those
19 employees who are (A) applicants for or recipients of benefits under the
20 social services law, or similar provision of law of another jurisdiction
21 (pursuant to an agreement under subdivision three of section twenty of
22 the social services law) or, (B) absent parents or other persons legally
23 responsible for the support of applicants for or recipients of public
24 assistance and care under the social services law or similar provision
25 of law of another jurisdiction (pursuant to an agreement under subdivi-
26 sion three of section twenty of the social services law), or (C) persons
27 legally responsible for the support of a recipient of services under
28 section one hundred eleven-g of the social services law or similar
29 provision of law of another jurisdiction (pursuant to an agreement under
30 subdivision three of section twenty of the social services law), or (D)
31 employees about whom wage reporting system information is being
32 furnished to public agencies of other jurisdictions, with which the
33 state office of temporary and disability assistance has an agreement
34 pursuant to paragraph (h) or (i) of subdivision three of section twenty
35 of the social services law, or (E) employees about whom wage reporting
36 system information is being furnished to the federal parent locator
37 service, maintained by the federal department of health and human
38 services, for the purpose of enabling the state office of temporary and
39 disability assistance to fulfill obligations and responsibilities other-
40 wise incumbent upon the state department of labor, under section one
41 hundred twenty-four of the federal family support act of nineteen
42 hundred eighty-eight, and, only if, the office of temporary and disabil-
43 ity assistance certifies to the commissioner that such persons are such
44 applicants, recipients, absent parents or persons legally responsible
45 for support or persons about whom information has been requested by a
46 public agency of another jurisdiction or by the federal parent locator
47 service and further certifies that in the case of information requested
48 under agreements with other jurisdictions entered into pursuant to
49 subdivision three of section twenty of the social services law, that
50 such request is in compliance with any applicable federal law. Provided,
51 further, that where the office of temporary and disability assistance
52 requests employee information for the purpose of evaluating the effects
53 on earnings of participation in employment, training or other programs
54 designed to promote self-sufficiency authorized pursuant to the social
55 services law, the office of temporary and disability assistance shall
56 only be furnished with the quarterly gross wages (excluding any refer-
S. 3322 19 A. 6163

1 ence to the name, social security number or any other information which
2 could be used to identify any employee or the name or identification
3 number of any employer) paid to employees who are former applicants for
4 or recipients of public assistance and care and who are so certified to
5 the commissioner by the commissioner of the office of temporary and
6 disability assistance. Provided, further, that with respect to employee
7 information, the department of health shall only be furnished with the
8 information required pursuant to subdivision two-a of section two thou-
9 sand five hundred eleven of the public health law with respect to those
10 children whose eligibility under the child health insurance plan is to
11 be determined pursuant to such subdivision two-a and with respect to
12 those members of any such child's household whose income affects such
13 child's eligibility and who are so certified to the commissioner or by
14 the department of health. Provided, further, that wage reporting infor-
15 mation shall be furnished to the office of vocational and educational
16 services for individuals with disabilities of the education department,
17 the commission for the blind and visually handicapped and any other
18 state vocational rehabilitation agency only if such office, commission
19 or agency, as applicable, certifies to the commissioner that such infor-
20 mation is necessary to obtain reimbursement from the federal social
21 security administration for expenditures made on behalf of disabled
22 individuals who have achieved self-sufficiency. Reports and returns
23 shall be preserved for three years and thereafter until the commissioner
24 orders them to be destroyed.
25 § 19. Paragraph 1 of subsection (l) of section 697 of the tax law, as
26 amended by chapter 214 of the laws of 1998, is amended to read as
27 follows:
28 (1) Notwithstanding any provision of law to the contrary, the state
29 department of labor shall furnish to the department information required
30 from employers pursuant to article eighteen of the labor law, and the
31 department shall furnish to the state department of labor, or other
32 individuals designated by the commissioner of labor who are engaged in
33 purposes deemed appropriate by the commissioner of labor consistent with
34 the provisions of the labor law, [the name, social security number and
35 wages of individuals, and the name and federal employer identification
36 number of employers contained within] withholding tax information
37 [required from employers] obtained or derived pursuant to part V of this
38 article, or pursuant to equivalent provisions enacted under the authori-
39 ty of article thirty, thirty-A or thirty-B of this chapter [or article
40 two-E of the general city law], and taxpayer identification information
41 acquired under any of the provisions of this chapter, for tax adminis-
42 tration and employment security [and public assistance work] program
43 purposes.
44 § 20. Subdivision 1 of section 537 of the labor law, as amended by
45 chapter 346 of the laws of 1948, is amended to read as follows:
46 1. Use of information. Information acquired from employers or employ-
47 ees pursuant to this article shall be for the exclusive use and informa-
48 tion of the commissioner in the discharge of his or her duties [here-
49 under] under this chapter and shall not be open to the public nor be
50 used in any court in any action or proceeding pending therein unless the
51 commissioner is a party to such action or proceeding, or such action or
52 proceeding involves information provided pursuant to paragraph g of
53 subdivision three of this section, notwithstanding any other provisions
54 of law. Such information insofar as it is material to the making and
55 determination of a claim for benefits or to adjudicating a claim for
56 benefits shall be available to the parties affected and, in the commis-
S. 3322 20 A. 6163

1 sioner's discretion, may be made available to the parties affected in
2 connection with effecting placement.
3 § 21. Subdivision 2 of section 537 of the labor law, as amended by
4 chapter 346 of the laws of 1948, is amended to read as follows:
5 2. [Penalties.] Violations of the confidentiality provisions of this
6 section. Any [officer or employee of the state] person, who, without
7 authority of the commissioner or as otherwise required by law, shall
8 disclose [such] information in violation of the confidentiality
9 provisions of this section, upon conviction, shall be guilty of a misde-
10 meanor.
11 § 22. The opening paragraph and paragraph a of subdivision 3 of
12 section 537 of the labor law, as amended by chapter 442 of the laws of
13 1994, are amended to read as follows:
14 The commissioner may, however, disclose the information described in
15 [subdivision] subdivisions one and four of this section under the
16 following circumstances:
17 a. Federal [agencies] law. The commissioner shall report fully and
18 completely to the appropriate agency of the United States on the effect
19 and administration of this article in the manner prescribed by such
20 agency, and further he or she shall make information available, upon
21 request, to any federal, state or local agency [of the United States
22 charged with the administration of public works or other assistance
23 through public employment, the name, address, ordinary occupation, and
24 employment status of each recipient of unemployment insurance benefits,
25 and a statement of such recipient's right to further benefit under this
26 article. The commissioner may also make the state's records relating to
27 the administration of this article available to the federal railroad
28 retirement board and may furnish, at the expense of such board, such
29 copies thereof as the federal railroad retirement board deems necessary
30 for its purposes] entitled to such information under the social security
31 act or any other federal law in the manner prescribed by such federal
32 law or its implementing regulations.
33 § 23. Subdivision 3 of section 537 of the labor law is amended by
34 adding a new paragraph g to read as follows:
35 g. Federal, state and local agencies. (i) Upon request to the commis-
36 sioner, such information may be disclosed to certain federal, state and
37 local agencies. The commissioner may require written agreements with
38 requesting agencies in a form determined by the commissioner and
39 consistent with 20 CFR 603 and other federal regulations. The informa-
40 tion that may be disclosed pursuant to this paragraph shall be disclosed
41 only after the requesting agency has demonstrated, to the commissioner's
42 satisfaction, that the information shall be kept confidential, except
43 for those purposes for which it was provided to the requesting agency,
44 and that the requesting agency has security safeguards in place to
45 prevent the unauthorized disclosure of such information.
46 (ii) The information disclosed pursuant to this paragraph may be
47 disclosed to the following agencies to be used exclusively for the
48 following legitimate governmental purposes:
49 (1) any federal, state or local agency in the investigation of fraud
50 or misuse of public funds;
51 (2) any state or United States territorial workforce agency, local
52 workforce investment board and its agents, and one-stop operating part-
53 ner receiving funds under the workforce investment act of 1998 for
54 program performance purposes and other legitimate programmatic purposes
55 authorized by the commissioner;
S. 3322 21 A. 6163

1 (3) the United States department of labor or its agents, as required
2 by law, or in connection with the requirements imposed as a result of
3 receiving federal administrative funding;
4 (4) state and local economic development agencies, where such informa-
5 tion is necessary to carry out the statutory functions of such agencies,
6 shall receive the employer's name, address and industry code received
7 from the registration of employers; and
8 (5) the workers' compensation board, the state insurance fund and the
9 state insurance department, for purposes of determining compliance with
10 the coverage of workers' compensation and disability insurance.
11 § 24. Subdivision 4 of section 537 of the labor law, as amended by
12 chapter 724 of the laws of 2006, is amended to read as follows:
13 4. Wage reporting information obtained by the department from the
14 state department of taxation and finance pursuant to subdivision four of
15 section one hundred seventy-one-a of the tax law, as added by chapter
16 five hundred forty-five of the laws of nineteen hundred seventy-eight,
17 and information obtained or derived from quarterly combined withholding,
18 wage reporting and unemployment insurance returns required to be filed
19 by employers pursuant to paragraph four of subsection (a) of section six
20 hundred seventy-four of the tax law shall be considered confidential and
21 shall be used for the administration of the unemployment insurance
22 program, employment services program, federal and state employment and
23 training programs, employment statistics and labor market information
24 programs, employer services program, worker protection programs, federal
25 programs for which the department has administrative responsibility or
26 for other purposes deemed appropriate by the commissioner under this
27 chapter. Such information shall not be disclosed to persons or agencies
28 other than those considered entitled to such information under the
29 social security act or other federal law, or as provided in subdivision
30 three of this section or when such disclosure is necessary for the prop-
31 er administration of the department's [employment security programs as
32 well as for the evaluation of the effect on earnings of participation in
33 training programs with respect to which the department has reporting,
34 monitoring or evaluating responsibilities. No such evaluations shall be
35 made with regard to data concerning individuals whose application to or
36 participation in such programs, whichever occurred later, was completed
37 more than ten years from the time of evaluation. When used for the
38 purpose of evaluating, monitoring or reporting on such programs, access
39 to such information obtained from the department of taxation and finance
40 shall be limited to that which concerns individuals who applied to or
41 participated in such programs] unemployment insurance program, employ-
42 ment services program, employment and training programs, worker
43 protection programs, federal programs for which the department has
44 administrative responsibility or for other purposes deemed appropriate
45 by the commissioner under this chapter. Any reports concerning employ-
46 ment [security] and training programs submitted to a state or federal
47 agency shall also be submitted to the governor, the temporary president
48 of the senate, the speaker of the assembly and the chairs of the labor
49 committees in the senate and the assembly.
50 § 25. Subdivision (a) of section 13 of the workers' compensation law,
51 as amended by chapter 451 of the laws of 1996 and the closing paragraph
52 as separately amended by chapter 635 of the laws of 1996, is amended to
53 read as follows:
54 (a) The employer shall promptly provide for an injured employee such
55 medical, dental, surgical, optometric or other attendance or treatment,
56 nurse and hospital service, medicine, optometric services, crutches,
S. 3322 22 A. 6163

1 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
2 devices, functional assistive and adaptive devices and apparatus for
3 such period as the nature of the injury or the process of recovery may
4 require. The employer shall be liable for the payment of the expenses of
5 medical, dental, surgical, optometric or other attendance or treatment,
6 nurse and hospital service, medicine, optometric services, crutches,
7 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
8 devices, functional assistive and adaptive devices and apparatus, as
9 well as artificial members of the body or other devices or appliances
10 necessary in the first instance to replace, support or relieve a portion
11 or part of the body resulting from and necessitated by the injury of an
12 employee, for such period as the nature of the injury or the process of
13 recovery may require, and the employer shall also be liable for replace-
14 ments or repairs of such artificial members of the body or such other
15 devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
16 ic devices, functional assistive and adaptive devices or appliances
17 necessitated by ordinary wear or loss or damage to a [prothesis] prosth-
18 esis, with or without bodily injury to the employee. Damage to or loss
19 of a prosthetic device shall be deemed an injury except that no disabil-
20 ity benefits shall be payable with respect to such injury under section
21 fifteen of this article. Such a replacement or repair of artificial
22 members of the body or such other devices, eye-glasses, false teeth,
23 artificial eyes, orthotics, prosthetic devices, functional assistive and
24 adaptive devices or appliances or the providing of medical treatment and
25 care as defined herein shall not constitute the payment of compensation
26 under section twenty-five-a of this [chapter] article. All fees and
27 other charges for such treatment and services shall be limited to such
28 charges as prevail in the same community for similar treatment of
29 injured persons of a like standard of living.
30 The chair shall prepare and establish a schedule for the state, or
31 schedules limited to defined localities, of charges and fees for such
32 medical treatment and care, [to be determined] and including all
33 medical, dental, surgical, optometric or other attendance or treatment,
34 nurse and hospital service, medicine, optometric services, crutches,
35 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
36 devices, functional assistive and adaptive devices and apparatus in
37 accordance with and to be subject to change pursuant to rules promulgat-
38 ed by the chair. Before preparing such schedule for the state or sched-
39 ules for limited localities the chair shall request the president of the
40 medical society of the state of New York and the president of the New
41 York state osteopathic medical society to submit to him or her a report
42 on the amount of remuneration deemed by such society to be fair and
43 adequate for the types of medical care to be rendered under this chap-
44 ter, but consideration shall be given to the view of other interested
45 parties. In the case of physical therapy fees schedules the chair shall
46 request the president of a recognized professional association repres-
47 enting physical therapists in the state of New York to submit to him or
48 her a report on the amount of remuneration deemed by such association to
49 be fair and reasonable for the type of physical therapy services
50 rendered under this chapter, but consideration shall be given to the
51 views of other interested parties. The chair shall also prepare and
52 establish a schedule for the state, or schedules limited to defined
53 localities, of charges and fees for outpatient hospital services not
54 covered under the medical fee schedule previously referred to in this
55 subdivision, to be determined in accordance with and to be subject to
56 change pursuant to rules promulgated by the chair. Before preparing such
S. 3322 23 A. 6163

1 schedule for the state or schedules for limited localities the chair
2 shall request the president of the hospital association of New York
3 state to submit to him or her a report on the amount of remuneration
4 deemed by such association to be fair and adequate for the types of
5 hospital outpatient care to be rendered under this chapter, but consid-
6 eration shall be given to the views of other interested parties. In the
7 case of occupational therapy fees schedules the chair shall request the
8 president of a recognized professional association representing occupa-
9 tional therapists in the state of New York to submit to him or her a
10 report on the amount of remuneration deemed by such association to be
11 fair and reasonable for the type of occupational therapy services
12 rendered under this chapter, but consideration shall be given to the
13 views of other interested parties. The amounts payable by the employer
14 for such treatment and services shall be the fees and charges estab-
15 lished by such schedule. Nothing in this schedule, however, shall
16 prevent voluntary payment of amounts higher or lower than the fees and
17 charges fixed therein, but no physician rendering medical treatment or
18 care, and no physical or occupational therapist rendering their respec-
19 tive physical or occupational therapy services may receive payment in
20 any higher amount unless such increased amount has been authorized by
21 the employer, or by decision as provided in section thirteen-g of this
22 article. Nothing in this section shall be construed as preventing the
23 employment of a duly authorized physician on a salary basis by an
24 authorized compensation medical bureau or laboratory.
25 § 26. Section 13 of the workers' compensation law is amended by adding
26 a new subdivision (i) to read as follows:
27 (i) (1) When a claimant or pharmacy submits a claim to the employer or
28 its carrier for payment of prescribed medicine or for reimbursement of
29 the cost of prescribed medicine which the employer is required to
30 provide under this section, the employer or carrier shall pay the amount
31 prescribed by the fee schedule adopted under section thirteen-o of this
32 article, or if the prescribed medicine is not included on the current
33 fee schedule, the usual and customary charges for such prescribed medi-
34 cine, within forty-five days of receipt of the claim, unless the liabil-
35 ity of the employer or carrier on the claim for which the claimant seeks
36 payment or reimbursement of payment for the prescribed medicine is not
37 established, or the prescribed medicine is not for a causally related
38 condition.
39 (2) Where the liability of the employer or carrier on the claim for
40 which the claimant seeks payment or reimbursement of payment for the
41 prescribed medicine or reimbursement for payment of prescribed medicine
42 is not established, or is not for a causally related condition, the
43 employer or carrier shall pay any undisputed portion of the claim in
44 accordance with this section and notify the claimant or pharmacy, as
45 appropriate, in writing within forty-five days of receipt of the claim:
46 (i) that the claim is not being paid and explaining the reasons for
47 nonpayment; or
48 (ii) to request all additional information reasonably needed to deter-
49 mine the employer's or carrier's liability for the claim. Upon receipt
50 of the information requested in this subparagraph, the employer or
51 carrier shall comply with paragraph one of this subdivision.
52 (3) Each claim for payment of prescribed medicine or reimbursement for
53 payment of prescribed medicine that is processed in violation of this
54 section shall constitute a separate violation. In addition to the other
55 penalties provided in this chapter, any employer or carrier that fails
56 to reimburse the claimant or pay the pharmacy, as appropriate and as
S. 3322 24 A. 6163

1 required in this section shall be obligated to pay to the claimant or
2 pharmacy the amount prescribed on the fee schedule adopted under section
3 thirteen-o of this article, or if the prescribed medicine is not
4 included on the current fee schedule, the usual and customary charges
5 for the prescribed medicine plus simple interest at the rate set forth
6 in section five thousand four of the civil practice law and rules.
7 (4) Nothing in this subdivision shall prohibit employers or carriers
8 from agreeing to or arranging for direct billing by the pharmacy to the
9 employer or carrier for the cost of prescribed medicine, in order for
10 claimants to more promptly receive prescribed medicine for which employ-
11 ers and carriers are liable under this section.
12 (5) Notwithstanding any other provision of this chapter, if an employ-
13 er or carrier has contracted with a pharmacy to provide prescribed medi-
14 cine to claimants, then such employer or carrier may require claimants
15 to obtain all prescribed medicines from the pharmacy with which it has
16 contracted, except if a medical emergency occurs and it would not be
17 reasonably possible to obtain immediately required prescribed medicine
18 from the pharmacy with which the employer or carrier has a contract. An
19 employer or carrier that requires claimants to obtain prescribed medi-
20 cines from a pharmacy with which it has a contract must notify claimants
21 of the pharmacy or pharmacies with which it has a contract, the
22 locations and addresses of the pharmacy or pharmacies, if applicable,
23 how to initially fill and refill prescriptions through the mail, inter-
24 net, telephone or other means, and any other required information that
25 must be supplied to the pharmacy or pharmacies. If the pharmacy or phar-
26 macies with which the employer or carrier contracts does not offer mail
27 order service and does not have a physical location within a reasonable
28 distance from the claimant, as defined by regulation of the board, the
29 claimant may obtain prescribed medicines at the pharmacy or pharmacies
30 of his or her choice and the employer or carrier will be liable for such
31 charges in accordance with the fee schedule prescribed in section thir-
32 teen-o of this chapter.
33 § 27. The workers' compensation law is amended by adding a new section
34 13-o to read as follows:
35 § 13-o. Pharmaceutical fee schedule. The chair shall adopt a pharma-
36 ceutical fee schedule which shall establish maximum allowable fees for
37 prescription medicines provided pursuant to this chapter. The schedule
38 shall include a single dispensing fee. Nothing in the fee schedule shall
39 preclude mail order supply of scheduled medicines, provided that the
40 fees for such mail ordered medicines do not exceed the costs provided by
41 such fee schedule. Any pharmacy providing prescription medicines shall
42 provide the generic drug equivalent, if a generic equivalent is avail-
43 able, unless the prescribing physician specifically provides otherwise
44 by prescription. The fee schedule may be modified on each succeeding
45 April first, provided, however, that usual and customary fees may be
46 charged for drugs that are not included in a then-current fee schedule,
47 but are approved for use by the chair.
48 § 28. Subdivision 5 of section 13-a of the workers' compensation law,
49 as added by chapter 21 of the laws of 1991, is amended to read as
50 follows:
51 (5) No claim for specialist consultations, surgical operations,
52 physiotherapeutic or occupational therapy procedures, x-ray examinations
53 or special diagnostic laboratory tests costing more than [five hundred]
54 one thousand dollars shall be valid and enforceable, as against such
55 employer, unless such special services shall have been authorized by the
56 employer or by the board, or unless such authorization has been unrea-
S. 3322 25 A. 6163

1 sonably withheld, or withheld for a period of more than thirty calendar
2 days from receipt of a request for authorization, or unless such special
3 services are required in an emergency, provided, however, that the basis
4 for a denial of such authorization by the employer must be based on a
5 conflicting second opinion rendered by a physician authorized by the
6 [workers' compensation] board. The board, with the approval of the
7 superintendent of insurance, shall issue and maintain a list of pre-au-
8 thorized procedures under this section.
9 § 29. Section 13-a of the workers' compensation law is amended by
10 adding a new subdivision 7 to read as follows:
11 (7)(a) Notwithstanding any other provision of this chapter to the
12 contrary, any insurance carrier authorized to transact the business of
13 workers' compensation insurance in this state, self-insurer or the state
14 insurance fund may contract with a network or networks, legally and
15 properly organized, to perform diagnostic tests, x-ray examinations,
16 magnetic resonance imaging, or other radiological examinations or tests
17 of claimants and may require claimant to obtain or undergo such diagnos-
18 tic test, x-ray examinations, magnetic resonance imaging or other radio-
19 logical examinations or tests with a provider or at a facility that is
20 affiliated with the network or networks with which the carrier
21 contracts, except if a medical emergency occurs requiring an immediate
22 diagnostic test, x-ray examination, magnetic resonance imaging or other
23 radiological examination or test or if the network with which the insur-
24 ance carrier, self-insurer or the state insurance fund contracts does
25 not have a provider or facility able to perform the examination or test
26 within a reasonable distance from the claimant's residence or place of
27 employment, as defined by regulation of the board.
28 (b) Any insurance carrier, self-insurer or the state insurance fund
29 which requires claimants to obtain or undergo diagnostic tests, x-ray
30 examinations, magnetic resonance imaging or other radiological examina-
31 tions or tests with a provider or at a facility affiliated with a
32 network or networks with which it contracts, must notify the claimant of
33 the name and contact information for the network or networks at the same
34 time the written statement of the claimant's rights as required by
35 subdivision two of section one hundred ten of this chapter or immediate-
36 ly after imposing such requirement if the time period within which the
37 written statement of the claimant's rights as required by subdivision
38 two of section one hundred ten of this chapter has expired.
39 (c) At the time a request for authorization for special diagnostic
40 tests, x-ray examinations, magnetic resonance imaging or other radiolog-
41 ical examinations or tests costing more than one thousand dollars as
42 required by subdivision five of this section is approved, the insurance
43 carrier, self-insurer or state insurance fund, or if so delegated the
44 network with which the insurance carrier, self-insurer or state insur-
45 ance fund has contracted, shall notify the physician requesting authori-
46 zation of the requirement that the claimant obtain or undergo the
47 special diagnostic test, x-ray examination, magnetic resonance imaging
48 or other radiological examination or test with a provider or at a facil-
49 ity affiliated with the network or networks with which it has
50 contracted, the contact information for the network and a list of the
51 providers and facilities within the claimant's geographic location, as
52 defined by regulation of the board. The claimant, in consultation with
53 the provider who requested the special diagnostic test, x-ray examina-
54 tion, magnetic resonance imaging or other radiological test or exam,
55 will determine the provider or facility from within the network which
S. 3322 26 A. 6163

1 will perform such diagnostic test, x-ray examination, magnetic resonance
2 imaging or other radiological examination or test.
3 (d) The results of the special diagnostic test, x-ray examination,
4 magnetic resonance imaging or other radiological test or exam must be
5 sent to the physician who requested the test or exam immediately upon
6 completion of the report detailing the results.
7 § 30. Subdivisions 1, 2 and 3 of section 21-a of the workers' compen-
8 sation law, as added by chapter 635 of the laws of 1996, are amended to
9 read as follows:
10 1. Notwithstanding any other provision of this chapter to the contra-
11 ry, in any instance in which an employer is unsure of the extent of its
12 liability for a claim for compensation by an injured employee pursuant
13 to this chapter, such employer may initiate compensation payments and
14 payments for prescribed medicine and continue such payments for one
15 year, without prejudice and without admitting liability, in accordance
16 with a notice of temporary payment of compensation, on a form prescribed
17 by the board.
18 2. The notice of temporary payment of compensation authorized by
19 subdivision one of this section shall be delivered to the injured
20 employee and the board. Such notice shall notify the injured employee
21 that the temporary payment of compensation and prescribed medicine shall
22 not be deemed to be an admission of liability by the employer for the
23 injury or injuries to the employee. The board, upon receipt of a notice
24 of temporary payment of compensation, shall send a notice to the injured
25 employee stating that:
26 (a) the board has received a notice of temporary payment of compen-
27 sation relating to such injured employee;
28 (b) the payment of temporary compensation and prescribed medicine and
29 the injured employee's acceptance of such temporary compensation and
30 prescribed medicine shall not be an admission of liability by the
31 employer, nor prejudice the claim of the injured employee;
32 (c) the payment of temporary compensation and prescribed medicine
33 shall terminate on the elapse of: one year, or the employer's contesting
34 of the injured employee's claim for compensation and prescribed
35 medicine, or the board determination of the injured [employees'] employ-
36 ee's claim, whichever is first; and
37 (d) the injured employee may be required to enter into an agreement
38 with the employer to ensure the continuation of payments of temporary
39 compensation and prescribed medicine.
40 3. An employer may cease making temporary payments of compensation and
41 prescribed medicine if such employer delivers within five days after the
42 last payment, to the injured employee and the board, a notice of termi-
43 nation of temporary payments of compensation on a form prescribed by the
44 board. Such notice shall inform the injured employee that the employer
45 is ceasing temporary payment of compensation and prescribed medicine.
46 Upon the cessation of temporary payments of compensation and prescribed
47 medicine, all parties to any action pursuant to this chapter shall
48 retain all rights, defenses and obligations they would otherwise have
49 pursuant to this chapter without regard for the temporary payment of
50 compensation and prescribed medicine.
51 § 31. Section 54-b of the workers' compensation law, as amended by
52 chapter 113 of the laws of 1946, is amended to read as follows:
53 § 54-b. Enforcement on failure to pay award or judgment. [In the event
54 of the failure of a carrier or self-insurer to pay an award after the
55 expiration of thirty days from the entry thereof, from which award or
56 decision in connection therewith no appeal has been taken as provided by
S. 3322 27 A. 6163

1 law, the chairman may enforce the payment of said award against the
2 carrier or self-insurer by the entry of judgment in accordance with the
3 provisions hereof and section twenty-six. Where, however, the carrier
4 or self-insurer has taken an appeal and the award or decision in
5 connection therewith has been finally affirmed, as provided by law, and
6 no rehearing has been ordered by the board herein, if such award and
7 accrued costs and interest are not paid within thirty days after the
8 entry of a final order by the court of last resort, the chairman may
9 enforce, in like manner, payment against such carrier or self-insurer of
10 all sums of money due thereon.] In case of default by a carrier or self-
11 insured employer in the payment of any compensation due under an award
12 for the period of thirty days after payment is due and payable, or in
13 the case of failure by a carrier or self-insured employer to make full
14 payment of an award for medical care issued by the board or the chair
15 pursuant to section thirteen-g of this chapter, the chair in any such
16 case or on the chair's consent any party to an award may file with the
17 county clerk for the county in which the injury occurred or the county
18 in which the carrier or self-insured employer has his or her principal
19 place of business, (1) a certified copy of the decision of the board
20 awarding compensation or ending, diminishing or increasing compensation
21 previously awarded, from which no appeal has been taken within the time
22 allowed therefor, or if an appeal has been taken by a carrier or self-
23 insured employer who has not complied with the provisions of section
24 fifty of this article, where he or she fails to deposit with the chair
25 the amount of the award as security for its payment within ten days
26 after the same is due and payable, or (2) a certified copy of the award
27 for medical care issued pursuant to section thirteen-g of this chapter,
28 and thereupon judgment must be entered in the supreme court by the clerk
29 of such county in conformity therewith immediately upon such filing. If
30 the payment in default be an installment, the board may declare the
31 entire award due and judgment may be entered in accordance with the
32 provisions of this section. Such judgment shall be entered in the same
33 manner, have the same effect and be subject to the same proceedings as
34 though rendered in a suit duly heard and determined by the supreme
35 court, except that no appeal may be taken therefrom. The court shall
36 vacate or modify such judgment to conform to any later award or decision
37 of the board upon presentation of a certified copy of such award or
38 decision. The award may be so compromised by the board as in the
39 discretion of the board may best serve the interest of the persons enti-
40 tled to receive the compensation or benefits. Where an award has been
41 made against a carrier or self-insured employer in accordance with the
42 provisions of subdivision nine of section fifteen, or of section twen-
43 ty-five-a of this chapter, such an award may be similarly compromised by
44 the board, upon notice to a representative of the fund to which the
45 award is payable, but if there be no representative of any such fund,
46 notice shall be given to such representative as may be designated by the
47 chair of the board; and notwithstanding any other provision of law, such
48 compromise shall be effective without the necessity of any approval by
49 the state comptroller. Neither the chair nor any party in interest shall
50 be required to pay any fee to any public officer for filing or recording
51 any paper or instrument or for issuing a transcript of any judgment
52 executed in pursuance of this section. The carrier or self-insured
53 employer shall be liable for all costs and attorneys fees necessary to
54 enforce the award. For the purposes of this section, the term "carrier"
55 shall include the state insurance fund and any stock corporation, mutual
S. 3322 28 A. 6163

1 corporation or reciprocal insurer authorized to transact the business of
2 workers' compensation insurance in this state.
3 § 32. Subdivision 1 of section 354 of the workers' compensation law,
4 as added by chapter 635 of the laws of 1996, is amended to read as
5 follows:
6 1. Each preferred provider organization shall provide at least [five]
7 two providers in every medical specialty from which the employee may
8 choose and at least [three] two hospitals from which the employee may
9 choose in the event that hospitalization is necessary. The [chair]
10 commissioner of health may waive such numerical requirements upon a
11 finding that the geographical area in which the preferred provider
12 organization is located cannot meet the requirements.
13 § 33. Section 134 of the workers' compensation law, as added by chap-
14 ter 635 of the laws of 1996, is amended to read as follows:
15 § 134. Workplace safety and loss prevention program; certification of
16 safety and loss management specialists. 1. The commissioner of labor,
17 in consultation with the superintendent of insurance[,] and the chair of
18 the [workers' compensation] board[, and the president of the compen-
19 sation insurance rating board,] shall develop a compulsory workplace
20 safety and loss prevention program for all employers whose most recent
21 annual payroll is in excess of eight hundred thousand dollars and whose
22 most recent experience rating exceeds the level of 1.2. The commission-
23 er of labor[, shall request that the safety panel established by this
24 section provide recommendations for the establishment, creation and
25 implementation of the safety incentive program provided for in subdivi-
26 sion six of this section and] shall promulgate rules and regulations for
27 the implementation of [this program] safety, drug and alcohol
28 prevention, and return to work incentive programs.
29 2. The [compensation insurance rating board or such other rating
30 organization licensed by the state for the purpose of providing loss and
31 rate information] commissioner of labor shall provide written notifica-
32 tion to employers whose most recent annual payroll is in excess of eight
33 hundred thousand dollars and whose most recent experience rating exceeds
34 the level of 1.2 that they are required to undergo a workplace safety
35 and loss prevention consultation and written evaluation. Copies of the
36 written notification shall be provided to the department of labor and
37 the employer's insurer. The employer must arrange for the consultation
38 and evaluation within thirty days after receiving the notification and
39 must within ten days thereafter notify its insurer and the department of
40 labor in writing of the means by which the evaluation is to be accom-
41 plished. The employer must provide its insurer and the department of
42 labor with a copy of the evaluation within thirty days after receiving
43 it from the safety and loss consultant. Any remedial action recommended
44 in the evaluation must be implemented by the employer within a reason-
45 able period of time, but not to exceed six months after the employer
46 receives the evaluation. The insurer, within sixty days after the expi-
47 ration of such six month period, shall conduct an inspection to ascer-
48 tain whether the recommended remedial action has been implemented, and
49 the insurer shall within forty-five days thereafter provide to the
50 employer and the department of labor a copy of its inspection report.
51 3. If the employer does not arrange for a consultation and evaluation
52 or fails to implement recommended remedial action within the times
53 prescribed, the insurer shall surcharge the employer's manual rate
54 premium by .05 for the next ensuing policy period, and so long as non-
55 compliance continues there shall be an additional .05 surcharge for each
56 year thereafter of non-compliance. An employer may challenge an insur-
S. 3322 29 A. 6163

1 er's determination that the employer has not taken the recommended reme-
2 dial action by appeal to the department of labor on notice to the insur-
3 er. The department of labor shall thereafter conduct an independent
4 inspection and its determination of compliance or non-compliance shall
5 be final. However, such appeal may not be entertained if the employer
6 has not paid its billed premium including any surcharge thereof.
7 4. Employers required to participate in the workplace safety and loss
8 prevention program established by this section shall be permitted to
9 utilize the services of either the department of labor, or a private
10 safety and loss consultant which has been certified by the department of
11 labor and has paid the appropriate certification fee prescribed by rules
12 and regulations promulgated under this section. Private safety and loss
13 consultants may charge employers a fee for their services, and where
14 employers elect to have the services provided by the department of
15 labor, they shall pay for such services in accordance with fee schedules
16 established by the department of labor's rules and regulations.
17 5. Fees charged by the department of labor to employers for workplace
18 safety and loss prevention consultations and evaluations and fees
19 charged to private safety and loss consultants for certification shall
20 be paid to the commissioner of taxation and finance and the comptroller
21 and deposited in the department of labor accounts designated for such
22 purposes. The fees deposited in those designated accounts shall be used
23 to cover administrative expenses of this program.
24 6. Safety, drug and alcohol prevention, and return to work incentive
25 [program] programs. Employers insured through the state insurance fund
26 (except those who are current policyholders in a recognized safety
27 group) or any other insurer that issues policies of workers' compen-
28 sation insurance, shall be eligible for a credit in workers' compen-
29 sation insurance premiums if they:
30 a. pay annual workers' compensation insurance premiums of at least
31 five thousand dollars; and
32 b. maintain an experience rating of under 1.30 for the year preceding
33 and the years in which the credit has been applied for provided that no
34 insured required to implement a safety program pursuant to subdivision
35 one of this section shall be eligible for a premium credit under this
36 subdivision; and
37 c. implement any of the following:
38 (1) a safety incentive plan, that has been recommended by a safety and
39 loss management specialist after such specialist has been certified by
40 the [safety panel established pursuant to this section. The credit,
41 which shall be five percent of the workers' compensation insurance
42 premium, shall be provided to the employer at the end of the policy
43 year. The credit shall be available for two consecutive years, provided
44 that the safety incentive plan shall have been implemented for a minimum
45 of six months during the first year for which the credit is sought, and
46 that such plan shall have been implemented for a full twelve months
47 during the second year for which the credit is sought.] commissioner of
48 labor, or if such plan otherwise conforms to regulations promulgated by
49 the commissioner of labor;
50 (2) a drug and alcohol prevention program that conforms to regulations
51 issued by the commissioner of labor, in consultation with the office of
52 alcoholism and substance abuse services; and
53 (3) a return to work program that conforms to regulations issued by
54 the commissioner of labor.
S. 3322 30 A. 6163

1 The credit for each such program shall be established by regulations
2 issued by the superintendent of insurance. Such regulations shall
3 include provisions for recertification on an annual basis.
4 7. A self-insured employer shall be eligible for a reduction in the
5 security deposit provided for in subdivision three of section fifty of
6 this article if such employer has implemented any of the following: a. a
7 safety incentive plan that has been recommended by a safety and loss
8 management specialist after such specialist has been certified by the
9 [safety panel established pursuant to this section. The amount of the
10 reduction in the required security deposit shall be no greater than five
11 percent or such lesser amount as determined by the chair of the board to
12 be necessary to assure that the deposit remains sufficient to secure the
13 employer's liability to pay the compensation provided in this chapter.
14 The reduction shall be provided to the employer at the end of the policy
15 year. The reduction shall be available for two consecutive years,
16 provided that the safety incentive plan shall have been implemented for
17 a minimum of six months during the first year for which the reduction is
18 sought, and that such plan shall have been implemented for a full twelve
19 months during the second year for which the reduction is sought.]
20 commissioner of labor or if such plan otherwise conforms to regulations
21 promulgated by the commissioner of labor;
22 b. a drug and alcohol prevention program that conforms to regulations
23 issued by the commissioner of labor, in consultation with the office of
24 alcoholism and substance abuse services; and
25 c. a return to work program that conforms to regulations issued by the
26 commissioner of labor.
27 The credit for each program shall be no greater than established by
28 regulations issued by the superintendent of insurance or such lesser
29 amount as determined by the chair of the board to be necessary to assure
30 that the deposit remai