Legislative Session 2024- Workers’ Compensation Bills

Four workers’ compensation bills were passed by the NYS Senate and Assembly during the 2024 legislative session. Once a bill is passed by both chambers, the bills must be presented to Governor Hochul by December 31, 2024. The Governor has the option to 1) sign 2) veto or 3) request chapter amendments to the bill. As of December 22nd, the Governor has signed two bills and vetoed two bills. We anticipate that the bills that were signed will increase benefits, resulting in higher costs for all NYS employers and in some situations, decrease the incentives to return to work. 2024 Workers’ Compensation Bills signed into Law:

Bill A.5745/S.6635 – Amends WCL §10(3)(b) to eliminate the case law requirement that mental stress injuries be based on work related stress that is materially and substantially greater than that experienced by similarly situated workers.  “Where a worker files a claim for mental injury premised upon extraordinary workrelated stress incurred at work, the board may not disallow the claim upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment.”

Bill A.5745/S.6635 was signed by  Governor Hochul on December 6, 2024, subject to chapter amendments. 

As written, A.5745/S.6635 would expand the statutory carve out that applies to police officers, firefighters, and emergency medical technicians who filed a claim for mental injury premised upon extraordinary work-related stress to include all employees. In 2017 the NY legislature, in recognition of the high standard required by the statute for mental stress claims, and the occupational hazards/exposures experienced by first responders during emergencies, removed the restriction that a mental stress claim had to be greater than the stress sustained by a similar worker. As written, the 2024 bill would treat all workers in a manner similar to first responders and would prevent employers from defending claims for mental injury by demonstrating that an employee was not exposed to stress that was greater than that experienced by other employees. Employees will still  have to have experienced “extraordinary” stress. The onus to determine what qualifies as “extraordinary,” a standard that is not defined by statute, will be placed on Law Judges.

The chapter amendments to A,5745/S.6635 were released on January 9 to the public under a new bill number A.1677/S.0755. The chapter amendments sought to clarify the psychiatric (DSM) diagnoses that would be covered under the new legislation and placed specific work-related parameters as to what incidences meet the “extraordinary worker elated stress” standard.

The three psychiatric diagnoses covered under this new law include: post-traumatic stress disorder (PTSD), acute stress disorder, and major depressive disorder. For these specific diagnoses, claimants will not have to demonstrate that the stress experienced at work was “greater than that experienced by a similar worker” to qualify for workers’ compensation benefits. In addition, A1677/S,0755, contains language that mandates a causal nexus between the work-related stress to a distinct work-related event or events directly related to employment occurring during the performance of the employee’s job duties. A.1677/S.0755 becomes effective 180 days after it becomes law.

In 2022, the New York Compensation Insurance Rating Board (NYCIRB) hired an actuarial firm to review the impact of a similar mental stress bill that was passed by both chambers (A.2020-A/S.6373-B) and its impact on NY carriers and employers. Based on NYCIRB’s analysis, the Governor vetoed the bill. In veto memo 191, the Governor noted that the mental stress bill comes with “significant cost,” that was “imprecise” to measure. In order to overcome the Governor’s concern, the legislature negotiated the chapter amendment language noted above to control costs to her satisfaction.

Bill A.1204-A/S.9462-A – Amends WCL §13(b) to permit treatment by Licensed OT/PT Assistant.
“Under the direction and supervision of an authorized occupational therapist, occupational therapy services may be rendered by an occupational therapy assistant. Under the direction and supervision of an authorized physical therapist, physical therapy services may be rendered by a physical therapist assistant.”

The OT/PT bill was signed by Governor Hochul on September 27, 2024. This bill (or similar bills) has been present in every legislative session since 2013. Currently, OT/PT therapy assistants are not permitted to render care under WCL §13. This bill will allow OT/PT assistants who are licensed by the NY State Education Department to render services to claimants under the supervision of an authorized OT/PT. This bill will become effective on the 13th day after it becomes law. We believe that the impact of this bill will be minimal, since workers’ compensation authorized OT/PT therapists are currently using assistants to help render care to claimants.

2024 Workers’ Compensation Bills vetoed by Governor:

Bill A.1219-A/S.1974-A – Amends WCL §13(1) to add a new paragraph that would permit claimants to utilize a non-network pharmacy provider upon a finding of eight factors. “[A] claimant shall not be required to obtain prescribed medicines through a pharmacy with which the employer or carrier has a contract and may obtain prescribed medicines from a pharmacy of his or her choice when…”

Bill A.1219-A/S.1974-A was vetoed by the Governor on December 13, 2024. In her veto memo, Governor Hochul mentioned that: 1) the bill would increase litigation resulting from factual disputes associated with the eight factors that would permit the claimant to utilize a non-employer network pharmacy 2) the bill would add “bureaucratic” steps to the Workers’ Compensation Board (WCB), and 3) the bill if signed would delay benefits to the claimant. A few examples of the eight factors that would permit the claimant to go out of the employers’ contracted pharmacy network for medications are:

• employer or carrier refused to provide payment for the prescribed medication and the claimant is unable to obtain the medication from the contracted pharmacy within 72 hours.
• employer or carrier or network pharmacy failed to respond to reauthorization request
• medications were previously authorized; however, the employer or carrier denies reauthorization because the medical guidelines do not support reauthorization
•  an IME disagrees with reauthorization

In the veto memo, the Governor mentioned that WCB will be issuing regulations to address the intent of A.1219-A/S.1974-A. The proposed regulation can be found at www.wcb.gov. The regulations will require that the employer or carrier notify the claimant that they may use a non-network pharmacy when the employer or carrier objects to medications for sites of injury that have not been accepted or established by the WCB. The regulations will be published in the State Register on December 31, 2024. Carriers and employers will have 60 days from publication to submit their comments to the WCB. For Lovell clients we do not see this as a major issue since NYSIF already provides firstfill pending establishment or acceptance of the claim. It is also important that employers and carriers are reminded that if signed, this bill would roll back the pharmacy cost benefits that employers negotiated in the 2007 Reform Legislation.

Bill A.6832-A/S.6929 – Amends WCL §13-a to allow for treatment costing less than $1,500 without the need for pre-authorization. The bill will also prevent carriers and employers from using the Medical Treatment Guidelines (MTG) to deny any treatment not within the Guidelines. “Such list of pre-authorized procedures (MTG) shall not prohibit varied treatment, nor shall the list be used as a basis to deny treatment not contained therein.”

“Any special diagnostic tests, x-rays examinations, magnetic resonance or other radiological examinations or test costing more than one thousand five hundred dollars performed by a provider who is not a member of the carrier’s, selfinsured’s or state insurance fund’s diagnostic network…shall be entitled to payment at the negotiated network rate.”

The Governor vetoed A.6832-A/S.6929, the Medical Treatment Guideline (MTG) bill on 11/22/2024. In Veto Message No. 62, she noted that this bill dismantles the standard of care contained in the Medical Treatment Guidelines. The veto message also emphasizes that the Medical Treatment Guidelines were premised on evidence-based medicine to create a uniform standard of care that would serve to improve medical outcomes to injured workers while also reducing disputes regarding whether treatment is necessary and appropriate. The MTG has also been credited with reducing costs to the workers’ compensation system. As for treatments greater than $1500, the veto message noted that the carrier will be required to obtain an IME, which would cause further delays to treatment that is currently authorized without any litigation in 94% of prior authorization requests.

A.6832-A/S.6929 was the most impactful of all the bills that were passed by the legislature during the 2024 legislative session. This bill would essentially dismantle the MTG and the Prior Authorization Request (PAR) process that the WCB spent years and millions of dollars to create as part of the comprehensive Business Process Reengineering (BPR), which included PAR and OnBoard. If signed, this bill would have opened the door to dramatically increased costs for employers if providers advanced questionable medical treatments. In addition, the cost of litigation would increase significantly as employers and carriers sought to limit unwarranted medical costs. We do not need to go far into the past to recall the abusive submissions of hundreds of bills by certain medical providers for treatments that were questionable and, in some cases, injurious to claimants.