Shannan M. Mackey, Associate Attorney
10/17/2022
Did you follow all the rules to use a diagnostic network [where the claimant and provider ignored the notice] and the Board nevertheless issued a Proposed Decision saying to pay your diagnostic fees at the network rate?
You have a diagnostic testing network in accordance with WCL 13-a (7). You did everything right. You provided your notice to the provider and claimants in accordance with Section 325-7.5 (d) (1). You even reminded the provider and the claimant in the variance to use your network. The claimant and the provider just ignored that and did what they wanted anyway. When you filed your C-8.1B you even furnished the DT-1 to the Board.
The regulation is clear it states at Section 325-7.5 (d) (4):
“(4) If the insurance carrier complies with the notice requirements of paragraph (1) of this subdivision, but the claimant utilizes the services of a facility or provider, including the treating medical provider, that is not an affiliated network provider for diagnostic examinations and tests, then the insurance carrier is not liable for the cost of the diagnostic examinations and tests”
This does not require a lawyer to interpret; when the carrier follows the procedure, yet the claimant and the provider ignore the rule, the carrier does not have to pay. “Easy-peasy,” right? Of course not.
You get a Proposed Decision stating that you need to pay for the diagnostic service at the “network rate,” citing with two 2012 Third Department Decisions. How? How does this even happen? Since when does caselaw trump the explicit and unambiguous language of a regulation?
The only explanation is that the person citing to that 2012 case obviously did not even read it. Both of those decisions from 2012 state that the legislature drafted WCLJ 13(7) to allow for the use of diagnostic testing networks but provided no instruction regarding notice requirements or the consequences of not using the diagnostic networks. In the beginning of 2012, that was true.
However, Section 325-7.5 was enacted in 2012, clearly in response to those Third Department decisions and to specifically answer the question of how to provide proper notice and what the consequences are of not using the diagnostic testing network.
Section 325-7.5 (d) (1) clearly outlines the requirements for providing notice. Section 325-7.5 (d) (4) clearly states that the consequence for the provider not using the diagnostic network when provided the notice in accordance with paragraph 1 is that the carrier does not have to pay. Not at the network rate. Not at any rate. Explicit language states no payment will be issued for the diagnostic examination and tests in those circumstances.
So, in legal terms, the two cited Third Department cases were abrogated by these changes made effective March 21, 2012.
See also:
- 12 NYCRR 325-7.5(d)(4) states that if the carrier or self-insured employer has provided notice of the requirement to use a diagnostic testing network to the claimant, and to the claimant’s treating health care providers, as required by 12 NYCRR 325-7.5(d)(1), and “the claimant utilizes the services of a facility or provider, including the treating medical provider, that is not an affiliated network provider for diagnostic examinations and tests, then the insurance carrier is not liable for the cost of the diagnostic examinations and tests.”
- Supreme Court 1st Judicial De
- FOJP Service Corporation