Requires use of the Medical Treatment Guidelines for covered injuries and creates processes for their use.
Substance of final rule:
The proposed amendments to Part 324 of 12 NYCRR adopt Medical Treatment Guidelines (MTG) for Carpal Tunnel Syndrome (CTS).
In addition, the Guidelines for the neck, back, shoulder and knee have been amended to permit 10 chiropractic, physical therapy or occupational therapy visits each year following a determination that the claimant has reached maximum medical improvement (MMI) and has chronic pain. No variance is allowed from the maximum of 10 annual visits.
Section 324.2(d)(2) has been amended to remove anterior acromioplasty and chondroplasty from the list of procedures that require prior authorization by the payer.
Section 324.3 has also been amended to prohibit the repeated submission of variance requests by a treating medical provider for substantially similar treatment when an earlier variance request has not yet been denied or without additional information when the earlier substantially similar request has been previously denied.
Paragraph (3) of subdivision (a) of Section 324.3 has been amended to specifically state that a variance must be submitted within two business days of the preparation of the request.
Paragraph (5) of subdivision (a) has been added to provide that no variance is required for ongoing maintenance care.
Section 324.3 has been amended to remove the requirement that the parties attempt to informally resolve disputes for eight days and to direct that requests for review of a denial of a variance request will be directed to medical arbitration unless the claimant or payer requests review by a Workers’ Compensation Law Judge.
In addition, Section 324.3 has been amended to give the Chair discretion to direct the resolution of variance denials based on the claimant’s failure to appear for an independent medical examination.
The Board proposes further changes to Part 324 of 12 NYCRR by modification of the definition of MMI to conform it to the definition developed by the Advisory Committee and incorporated in the Board’s 2012 Guidelines for the Determination of Permanent Impairment and Loss of Wage Earning Capacity.
At subdivision (c) of section 324.1, the proposed amendment adds a definition of “Denial, deny or denies” to include instances when the carrier or Special Fund partially grants or approves only a portion of a variance or request for optional prior approval.
Throughout the regulation the language has been modified from use of words like “form” and “file” to terms such as “format prescribed by the Chair” and “submit.”
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 324.2(a), (b) and 324.3(c)(3).
Text of rule and any required statements and analyses may be obtained from:
Heather MacMaster, Workers' Compensation Board, 328 State Street, Office of General Counsel, Schenectady, New York 12305-2318, (518) 486-9564, email: regulations@wcb.ny.gov
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change any statements in the document. Specifically the changes are to: 1) change the effective date to March 1, 2013; 2) correct the web address for obtaining copies of the Medical Treatment Guidelines; 3) and add clarifying language regarding the time to file depositions when requesting review of a variance denial via an expedited hearing.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis for Small Business and Local Governments is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change any statements in the document. Specifically the changes are to: 1) change the effective date to March 1, 2013; 2) correct the web address for obtaining copies of the Medical Treatment Guidelines; 3) and add clarifying language regarding the time to file depositions when requesting review of a variance denial via an expedited hearing.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change any statements in the document. Specifically the changes are to: 1) change the effective date to March 1, 2013; 2) correct the web address for obtaining copies of the Medical Treatment Guidelines; 3) and add clarifying language regarding the time to file depositions when requesting review of a variance denial via an expedited hearing.
Revised Job Impact Statement
A revised Statement in Lieu of Job Impact Statement is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change the statement that the rule making will not have an adverse impact on jobs. Specifically the changes are to: 1) change the effective date to March 1, 2013; 2) correct the web address for obtaining copies of the Medical Treatment Guidelines; 3) and add clarifying language regarding the time to file depositions when requesting review of a variance denial via an expedited hearing.
Assessment of Public Comment
The 45-day public comment period with respect to Proposed Rule I.D. No. WCB471200013 commenced on November 21, 2012, and expired on January 7, 2013. The Chair and the Workers’ Compensation Board (Board) accepted formal written public comments on the proposed rule through January 10, 2013.
The Chair and Board received written comments from two groups: the Business Council of New York State (Business Council) and from the Joint Legislative Task Force of the New York State Chiropractic Association and the New York Chiropractic Council (Chiropractors’ Task Force). These comments were reviewed and assessed.
The Business Council objects to the addition of ongoing maintenance care (OMC), including up to 10 chiropractic or physical therapy or occupational visits per year, to the MTG. The Business Council asserts that the regulations allow the “routine use” of maintenance care visits without “appropriate and compelling evidence of such a treatment’s efficacy.” The Board respectfully disagrees. The ongoing maintenance care section acknowledges that “the current body of scientific evidence does not support the routine use of this intervention.” However, the Chair’s Medical Advisory Committee, which includes three doctors appointed by the Business Council, determined that maintenance care “may be indicated in certain situations.” The maintenance care recommendations provide criteria to identify the patient population that may benefit. OMC is permitted to maintain a patient’s functional status if there has been a previously observed and documented (in the medical record) objective deterioration in functional status without the identified treatment. In order to qualify for ongoing maintenance care, the claimant must have chronic pain, reached maximum medical improvement (MMI), have a permanent disability and a decline in functional status without the identified treatment. Furthermore, specific, objective functional goals must be identified, measured and met in order to support the need for ongoing maintenance care. Therefore, OMC is not provided in a routine manner, but rather with requirements that must be met in order to qualify for such care.
The Chiropractors’ Task Force requests a revision in the definition of “Insurance carrier or Special Fund’s medical professionals” who are permitted to review variance requests to include chiropractors. The medical professional may be required to review variance requests involving any of the medical treatment guidelines. Since chiropractors’ scope of practice is limited to the neck and back, they do not have the breadth of medical practice necessary to act as a medical professional for review of all variance requests. Accordingly, the Board will continue to require that a carrier or Special Fund use a physician, physician’s assistant, registered professional nurse or nurse practitioner as its medical professional.
The Chiropractors’ Task Force suggests that requiring that a variance request be granted by the carrier or Special Fund prior to permitting the requested treatment prolongs disability, pain and suffering. The Board notes that this requirement is not a change from the variance process. The added language is simply a clarification. Variances are used to seek approval for treatment that is outside of or in excess of the MTGs recommendations. Accordingly no treatment outside of or in excess of the MTG may occur until and unless it is approved by the carrier, Special Fund or Board decision. The Board notes that there are time constraints for all parties to assure that variance requests are handled in an expeditious manner.
The Chiropractors’ Task Force suggests that medical providers be able to request a variance following completion of ongoing maintenance care treatment. The Chair, in connection with the Medical Advisory Committee, determined that when a claimant has reached maximum medical improvement, an ongoing maintenance program that includes periodic therapy,patient self-management, periodic therapeutic withdrawal, and a self-directed pain management program is appropriate. Variance requests to allow additional passive therapy are not consistent with this recommendation.
The Chiropractors’ Task Force submitted several comments concerning what constitutes a substantially similar variance request. The Chiropractic Task Force presents some scenarios and seeks further explanation as to what may constitutes a substantially similar request. After review of these comments, the Board maintains that the plain meaning of “substantially similar” provides a sufficient basis for evaluation and comparison of two or more variance requests. In addition, the regulations provide the additional safeguard of administrative review in the event that it appears that there is not a sufficient basis for the finding that the variance request was substantially similar.
The Chiropractor’s Task Force suggests that the regulation should require the carrier to supply a detailed explanation when rejecting a variance request on the basis that the medical provider has not met his or her burden of proof. When requesting a variance, the provider must present basic information showing that the proposed treatment, which is outside of or in excess of the MTGs, is necessary and likely to be effective. Sufficient documentation in support of the variance request is necessary for proper evaluation by the carrier or Special Fund. The responsibility to meet the burden of proof (appropriate medical documentation to support a variance requests) rests with the provider. The Board has developed training which is available on its website as well as a published Frequently Asked Question that provides detailed information as to what documentation is required in order to meet the variance request burden of proof. Of note, the MG-2 “Attending Doctor’s Request for Approval of a Variance and Carrier’s Response” includes a space for the inclusion of a carrier’s/Special Fund’s explanation of its basis for the burden of proof denial.
The Chiropractor’s Task Force also requests that treating providers should be permitted to seek review of a variance denial. It is well settled that only a claimant, an employer or an insurance carrier has standing to appear in a Worker's Compensation case as to any of the primary issues involved in a case. The relationship between medically necessary treatment and a compensable accident or occupational disease is a primary issue. Therefore, a health care provider has no standing to contest the carrier or Special Fund’s denial of a variance or a medical arbitrator’s or WCLJ's determination of that issue.
The Chiropractor’s Task Force suggests that informal resolution should not be mandatory. The Board has removed the eight day requirement for informal dispute resolution and the informal dispute resolution process is no longer mandatory. This permits the claimant to seek review of a variance denial as soon as it becomes apparent that an informal resolution will not occur. However, the Board encourages the medical provider and carrier/Special Funds to informally resolve disputes concerning variance requests and has required all carriers and Special Funds to identify a contact person for discussion of variance approvals.
The Chiropractor’s Task Force suggests that the regulations be modified to permit cross-examination of a medical provider whose variance request has been denied based on failure to meet the burden of proof for such request. A variance request that is denied due to failure to meet the burden of proof means that the medical provider submitting the request failed to provide sufficient documentation or explanation in support of the variance request. Testimony of the provider will not make the variance request sufficient. It is noted that a variance that is denied due to failure to meet the burden of proof may be re-submitted by the provider with proper documentation and written justification.
The Chiropractor’s Task Force suggests that the MTG be amended to permit a second course of ongoing maintenance care by a second provider if a first medical provider’s ongoing maintenance care was ineffective. As In order to meet the eligibility criteria for maintenance care, the MTG requires a demonstration that the maintenance care has been previously effective for this claimant. In the scenario put forth by the Chiropractor’s Task Force the eligibility criteria would not be met. Accordingly, no change has been made to the MTG.
Finally, the Chiropractor’s Task Force suggests that term “spinal manipulation” should be changed to “active and passive therapy.” The Board notes that the guidelines use the terms PT and OT along with spinal manipulation and are not intended to preclude any qualified provider from using active and passive therapies as a component of a qualified course of ongoing maintenance care. As the medical terms used in the MTG were carefully considered and selected by the Medical Advisory Committee and the Board, the Board has not made this suggested change.
CHANGES TO THE REGULATION:
The Regulation that is being adopted contains the following insubstantial changes from the proposed rule published in the November 21, 2012 State Register:
• In section 324.2(a) the edition and effective dates have been changed to January 14, 2013 and March 1, 2013 respectively. The edition change reflects minor typographical errors that have been corrected as of January 14, 2013. The effective date has been extended to permit all stakeholders the opportunity to fully familiarize themselves with the changes and complete training.
• In section 324.2 (b), the Board’s web address has been updated from “GENERAL_INFORMATION@WCB.STATE.NY.US” to GENERAL_INFORMATION@wcb.ny.gov.”
• Section 324.3(c)(3) contains a correction regarding the expedited hearing process that was inadvertently omitted from the published regulation: “If the medical professionals are deposed, transcripts shall be provided to the Board on or before the hearing and within thirty days of the request for the expedited hearing.” The change conforms to the expedited hearing process in the original regulation and the process observed by the Board in compliance with WCL § 25(3)(d).
