The Board has announced that eleven (11) new Medical Treatment Guidelines will become effective on May 2, 2022. This is good news for employers and carriers in New York! Read on to find out why.
As of this writing, there are six (6) Medical Treatment Guidelines in effect:
- Non-Acute Pain Medical Treatment Guidelines;
- Mid and Low Back Injury Medical Treatment Guidelines;
- Neck Injury Medical Treatment Guidelines;
- Knee Injury Medical Treatment Guidelines;
- Shoulder Injury Medical Treatment Guidelines;
- Carpal Tunnel Medical Treatment Guidelines;
On May 2, 2022, the following NEW Medical Treatment Guidelines become effective:
- Post-Traumatic Stress Disorder and Acute Stress Disorder;
- Work-Related Depression and Depressive Disorders (formerly referred to as Major Depressive Disorder);
- Eye Disorders Medical Treatment Guidelines;
- Traumatic Brain Injury Medical Treatment Guidelines;
- Complex Regional Pain Syndrome Medical Treatment Guidelines;
- Ankle and Foot Disorders Medical Treatment Guidelines;
- Elbow Injuries Medical Treatment Guidelines;
- Hand, Wrist and Forearm Injuries (including Carpal Tunnel Syndrome) Medical Treatment Guidelines
- Hip and Groin Disorders Medical Treatment Guidelines;
- Occupational Interstitial Lung Disease Medical Treatment Guidelines; and
- Occupational/Work-Related Asthma Medical Treatment Guidelines.
The New York Medical Treatment Guidelines: How They Work
Medical care for workers’ compensation injuries to the enumerated body parts and systems (listed above) must be provided in a manner “consistent with the Medical Treatment Guideline.” This is the standard for doctors and health care providers to follow. “Consistent with the MTG” means that care is provided within the criteria and based upon a correct application of the MTG. What is within the criteria and a correct application is left open for the WCB’s WC Judges to interpret.
Why Treatment Guidelines are Good for Carriers and Employers
The Medical Treatment Guidelines are based on evidence-based medical approaches intended to restore the functional ability of the injured worker. The goal is to provide the best medical care possible to allow the injured employee to meet the requirements of their daily and work activities with a focus on a return to work. The Guidelines have a goal of restoring the patient’s health to its pre-injury status in so far as is feasible.
This is good for employers! Before the Guidelines were implement, all medical care costing more than $1,000 had to be separately approved and authorized by the carrier/employer, with disputes frequently arising. Furthermore, the treating physicians were typically “over treating” the claimants and not focusing on restoring the employee to work status.
The Medical Treatment Guidelines include statements of “General Principles” in each MTG’s first section. These are the key principles necessary to apply and interpret the MTGs.
There are 23 general principles divided into 6 categories. Of these, the two most important are:
- Medical Care. The purpose of medical care is to restore functional ability required to meet daily and work-related activities, to obtain a positive patient response primarily defined as functional gains which can be objectively measured, and to provide effective treatment which includes evaluations and re-evaluations of treatment and which discontinues ineffective treatments.
- Treatment approaches. Treatment should emphasize active interventions over passive modalities (i.e., therapeutic exercise instead of manipulation), should include passive intervention to facilitate progress in an active rehabilitation program, and should resort to surgical interventions only when there is correlation of clinical findings, clinical course, imaging, and other diagnostic tests.
What Happens When the Treating Doctor Wants to Depart From the Standard of Care as set Forth in the Medical Treatment Guidelines?
When a medical care provider wants to provide specific medical treatment that does not fit the MTG they can request prior authorization for the treatment by requesting a variance. This procedure is similar to a ‘Request for Authorization’ under WCL Section 13-a(5). The regulation that permits variances is found at 12 N.Y.C.R.R. 324.3.
How A Request to Depart From the MTG will Be Submitted
When the “Onboard:Limited Release” Computer system is implemented (expected date ) all requests to either confirm a medical treatment is within he Medical treatment Guidelines or to depart from the Guidelines will be made through that computer system by was of a Prior Authorization Request (PAR).
When the “Onboard” Phase-in Happens: A Timeline
March 7, 2022: Medications
On March 7, 2022, medical care providers will begin to submit Medication PARs will be used for medication requests (replacing the current New York Workers’ Compensation Drug Formulary [Drug Formulary] prior authorization request process). With the implementation of OnBoard: Limited Release Phase One, medical marijuana will also be requested via a Medication PAR, which will replace the current process using the Attending Doctor’s Request for Approval of Variance and Carrier’s Response (Form MG-2).
April 4, 2022: Durable Medical Equipment
On April 4, 2022, DME PARs will be used for requests in accordance with the new Official New York Workers’ Compensation Durable Medical Equipment (DME) Fee Schedule.
May 2, 2022: All Medical Treatment
On May 2, 2022, The PAR types for treatment/testing will be implemented. Here are the treatment PARs:
- MTG Confirmation PARs will be used to request confirmation from the insurer that the procedure or test is based on a correct application of the MTGs, which was previously done using the Attending Doctor’s Request for Optional Prior Approval and Carrier’s/Employer’s Response (Form MG-1). Note: Prior to the implementation of OBLR, MG-1s were optional for both the provider and the payer. With the implementation of OBLR, MG-1s will continue to be optional for the provider, but if submitted, will be mandatory for the payer.
- MTG Variance PARs will be used to request testing or treatment that varies from the MTGs applicable to the body part or condition being treated, which was previously done using the Attending Doctor’s Request for Approval of Variance and Carrier’s Response (Form MG-2).
- MTG Special Services PARs will be used to request authorization for special service(s), which was previously done using the Attending Doctor’s Request for Authorization and Carrier’s Response (Form C-4AUTH). Note: This process will mirror the MTG Variance PAR process, rather than the Non-MTG Over $1,000 PAR process.
- Non-MTG Over $1,000 PARs will be used for requests for treatment costing over $1,000 for non-MTG body parts, which was previously done using the Attending Doctor’s Request for Authorization and Carrier’s Response (Form C-4AUTH).
- Non-MTG Under or = $1,000 PARs (new) will be used for requests for treatment costing $1,000 or less for non-MTG body parts. This PAR type is optional for the health care provider, but a response from the payer is mandatory.
A variance is a request for authorization to do something that varies from the MTG. A treating medical provider must request this approval from the carrier. A variance request must be made even if the claim is controverted or the time to controvert the case has not yet expired.
A variance request must be made before treatment is provided that differs from the Guidelines. Requests made after treatment that differs from the MTG has already been provided will not be considered.
A variance will be sought in four circumstances:
- EXTRA-MTG: The treating doctor believes that the claimant would benefit from medical care that is not within the MTG;
- NOT RECOMMENDED BY THE MTG: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not recommended;
- NOT YET RIPE: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not specified at that point in the claimant’s treatment; or
- FREQUENCY: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but exceeds the maximum number or frequency limit for that particular treatment.
Variance requests must be made on Form MG-1, Attending Doctor’s Request for Approval of Variance and Carrier’s Response. The treating physician must complete all of the sections of the Form MG-2, which includes information about the claimant, employer, carrier, the Medical Treatment provider, the body part, the section of the MTG that applies, the specific treatment requested, a statement as to why the treatment is medically necessary, reference to records in the WCB’s file, and a certification that the claimant understands and agrees to undergo the proposed medical care.
It is possible for attending doctors to request treatment which is not addressed specifically in the MTG. In those cases, the attending doctor is not seeking a variance from the Guidelines as much as they are asking for permission to do something not contemplated by the MTG. In those cases, the attending doctor must show the same proofs as a doctor seeking simple variance. See N.Y.C.R.R. Section 324.5.
If more than one Treating Medical Provider needs a variance for more than one procedure or test at the same time, Form MG-2.1 should be used. The MG-2 form must be transmitted the same day to the WCB, the carrier, the claimant, and claimant’s attorney. Form MG-2 must be sent by either email or fax – mail is acceptable only if the provider does not have fax or email capabilities. N.Y.C.R.R. Section 324.3(a)(3). This is likely to cause problems as the attending doctor is unlikely to have an email address for the claimant or the claimant’s attorney. All carriers are required to designate a ‘qualified employee’ to receive these requests and the WCB is publishing all of the ‘qualified employees’ contact info on the WCB website.
The medical provider requesting the variance has the burden of proof to show that the treatment requested is appropriate and medically necessary for the claimant. N.Y.C.R.R. Section 324.3(a)(2). The attending doctor requesting the variance must provide:
- the basis for the opinion that the specified treatment or test is appropriate and is medically necessary;
- a statement that the claimant agrees to the proposed medical care;
- an explanation why alternatives contained within the Guidelines are not appropriate or sufficient; and
- any signs or symptoms which failed to improve with treatment provided in accordance with the Guidelines; or
- the objective improvements made by particular treatment and the expected improvements with more of the same treatment. See N.Y.C.R.R. 324.3(a)(3).
The attending doctor may also submit copies of relevant articles from peer-reviewed medical journals which lend support for the variance request but ONLY for treatments not otherwise addressed by the MTG. If the claimant is seeking a treatment (like discography) which has been specifically eliminated by the MTG, then NO AMOUNT of contrary articles in support of the procedure will be persuasive. The attending doctor must make reference to medical reports that get attached to the MG-2 form or already within the WCB’s file (E-case).
Insurance Carrier Actions in Response to a Variance Request
Upon receipt of a variance request the carrier must decide if it will obtain an IME or review of the records report. If the carrier is going to obtain an IME or records review, the WCB must be notified within 5 business days of receipt. (Receipt of variance is calculated as ‘same day’ if email or fax transmission is used; if sent by mail then receipt is 5 business days after treating doctor certified it was mailed). The carrier notifies the WCB that they are obtaining an IME or records review by completing Section “D’ of the MG-2 form.
If the carrier decides not to get an IME or records review, then the carrier must transmit its response within 15 calendars after receipt of the variance request. If the carrier has selected to get an IME or records review, the response is due within 30 days from receipt of variance request. Obviously, this creates an enormous burden for carriers: it will be a challenge to get an IME scheduled and completed and a report generated and reviewed within 30 days from receipt of a variance request. One response to this time challenge may be to get examining physicians to set one day aside per month for these ’emergent’ variance review IMEs.
The possible responses to a variance request are:
- Denial. Remember to issue a denial even if you have already filed a C-7 to controvert the case – controverting the case is not enough – the WCB can rule on variance requests where no denial was issued.;
- “Grant without prejudice.” This is only available if the claim has been controverted or the time to controvert the claim has not yet expired.
- Do nothing. if this happens (you do not respond within the time limitations) the Chair will issue an Order of the Chair. This decision will likely result in an approval of the variance. An Order of the Chair issued under these circumstances (untimely or no response) is not subject to an appeal under WCL Section 23.
Denial of Variance Request
The carrier must explain any denial of requested variance in Section “E” of Form MG-2. Any reason for denial that is not raised is deemed waived. The possible grounds for denial are:
- The medical care requested has already been rendered (if the request was submitted after treatment already rendered, an IME or records review is not necessary, See N.Y.C.R.R. 324.3(i)(b));
- The Treating Medical Provider did not meet the burden of proof (appropriateness and medical necessity);
- The treatment requests is not medically necessary or appropriate for the claimant – this would be coming from your IME or records review; or
- The claimant failed to appear for the scheduled IME examination. In this situation, the WCB may extend the time for IME by thirty days. See N.Y.C.R.R. 324.3.
If the denial is based on the grounds that the treatment sought is not medically necessary or appropriate, the carrier must:
- Have the case reviewed by its own medical professional, independent medical examiner, or records reviewer;
- Attach the written report of its own medical professional, independent medical evaluator, or records reviewer;
- Submit citations to peer-reviewed medical journals in support of the denial (if such articles formed the basis of the denial).
What Happens After a Denial?
There are three pathways for resolution to a denied variance request. The first path to resolution is ‘informal’ discussions between the medical care provider seeking the variance and the carrier. The parties have 8 business days to attempt an informal resolution – and if the dispute can be resolved, the insurance carrier confirms the agreement by completing Section “G” (‘Carrier’s Granting of Attending Doctor’s Variance Request after Initial Denial’).
If ‘informal’ resolution fails, the treating doctor notifies the claimant and claimant’s counsel. The claimant can then seek review of the denial by the Board. If the claimant decides to request review, a request for review must be filed within 21 business days of the receipt of denial (once again, ‘receipt’ is deemed the date of transmission of the denial was sent via fax or email and 5 business days of the denial was sent via mail). If the claimant is represented, the request for review must be on the Form MG-2 (Section F). if the claimant is not represented, the request for review must be in writing (but does not have to be on Form MG-2).
When informal resolution fails and the claimant requests a review, there are two pathways the review can take:
- Submission to a medical arbitrator if both parties agree in writing to the submission; or
- By a Workers’ Compensation Law Judge through the expedited hearing process (“Rocket Docket”).
The choice of either medical arbitration or “rocket docket” is up to the claimant – the claimant elects the method for resolving the dispute on Section “F” of Form MG-2. If the claimant is not represented then they have 14 days after the WCB responds to select either an expedited hearing or medical arbitration. If the claimant makes no choice the case is set for an expedited hearing.
The carrier may also elect either expedited hearing or medical arbitration – but in the case of arbitration the claimant must agree to it. The ‘default’ position is that if the carrier makes no election, the case will be set down for expedited hearing.
Important timelines for variance requests:
- 5 (five) business days to respond if obtaining an IME;
- 15 (fifteen) days for a final response if not obtaining an IME;
- 30 (thirty) days for a final response along with a copy of the IME;
- 8 (eight) business days to discuss denial informally;
- 21 (twenty one) business days for claimant to request review.