In a Board Panel Decision dated May 24, 2017, the Board found that the Medical Treatment Guidelines apply to the out of state treatment of a claimant residing outside of New York State. The decision in In Re Hospice is important because it reverses the Board’s previous statements that out-of-state treatment was immune from the application of the restrictive Medical Treatment Guidelines (“MTG”). This meant that New York claimants merely had to “cross the river” into New Jersey or any other state and obtain medical treatment and medications which far exceeded the treatment or medications allowed under the Medical Treatment Guidelines, needlessly increasing the costs in their cases. Now employers and carriers have a Board Panel decision supporting the argument that law judges should apply the MTG’s to out of state cases.
Facts in In Re Hospice
The claimant had a New York workers’ compensation claim with a 1995 date of loss. He moved to Nevada where he received treatment for low back pain with Dr. Fisher. The doctor prescribed and dispensed LidoPro ointment ($1,883) and Terocin patches ($2,576). “LidoPro” is nothing more than a mixture of lidocaine and capsaicin. “Terocin” is also lidocaine with menthol.
The carrier objected to the prescriptions (by filing C-8.1Bs). All bills were found in favor of the provider.
The carrier appealed, conceding that the Medical treatment Guidelines do not apply out of state but arguing that the doctor had not established medical necessity for the treatments.
Legal Decision in In Re Hospice
The Board directly addressed the fact that in dozens of prior decisions it has held that the Medical Treatment Guidelines do not apply when the claimant resides out of state and receives medical care out of state. In the new decision, the Board panel states that “the plain language of the regulations governing the Guidelines, 12 NYCRR 324, do not limit their applicability to treatment rendered to New York residents or treatment rendered in New York.”
The Board applied Mid and Low Back Medical Treatment Guideline D.7.j.i & D.7.j.ii which state that
- Optimal Duration for lidocaine is one to two weeks and that long term use is not recommended, and
- Topical lidocaine is only allowed where the physician has documented neuropathic pain and for no longer than four weeks unless there are functional gains (documented improvement).
Although the facts of the case do not include a lengthy medical history, it is quite obvious from the date of loss (1995) and the dates of treatment (2016) that at least 21 years have elapsed (clearly longer than the one to four week trial periods for the topical medications prescribed). The Board also noted that the two prescriptions (ointment and patch) were just two different delivery mechanisms for the same medication.
The Board panel reversed the Law Judge and ruled in favor of the carrier, finding that the medications exceeded the Guidelines. The Board found that the Medical Treatment Guidelines apply to out of state residents.
Practical Advice
Despite the fact that the carrier did not raise the argument that the Medical Treatment Guidelines should not apply to out of state claimants the Board Panel used that basis to reverse the Law Judge. This is important – for two reasons. First, it shows how entrenched the Board’s prior direction in this topic – that the Medical treatment Guidelines do apply to out of state claimants has become in the New York Workers’ Compensation arena. It is notable that the carrier did not even bother to raise the inapplicability of the MTG’s to out of state treatment in their appeal. Second, by addressing the applicability of the MTGs to out of state treatment on their own accord signals that the Board is taking a new direction on out of state treatment which exceeds the Guidelines.
This decision is great for employers and carriers in New York!
Here are some important takeaways:
- Medical Treatment Guidelines apply to out of state residents obtaining medical treatment outside of New York State.
- Employers and carriers can challenge out of state treatment by filing C-8.1B‘s stating that “medical treatment exceeds the Guidelines” with a reference to the Guideline. Risk professionals may want to append a copy of the Board panel decision in In Re Hospice to their C-8.1 filings to remind the board employees reviewing the medical fee disputes that the Board’s position on out of state treatment has changed.
- An out of state medical provider does not have to use New York forms, for example a MG-2 (variance) or C-4AUTH (request for authorization) but still must request permission from the carrier when their proposed treatment course will exceed the Medical treatment Guidelines.
