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Workers’ Compensation Board

New York State
Workers' Compensation Board
328 State Street  Schenectady, New York 12305
Governor David A. Paterson

Subject No. 046-256

Request for Adjustment of the Durable Medical Equipment Fee Schedule

Date: October 3, 2008

In accordance with Chapter V. of Title 12 NYCRR subchapter M, Part 442.2(3), the Chair may make adjustments to the durable medical equipment fee schedule as he deems appropriate. Any adjustment shall be made upon a finding that the reimbursement provided for a particular piece of durable medical equipment, medical/surgical supply or other item under the fee schedule is grossly inadequate to meet the suppliers' costs. A proposed fee schedule adjustment shall be posted on the Board's website for thirty days and the Chair shall consider any comments provided in response to such notice. The regulation stipulates that requests for adjustments of the fee schedule should be submitted to the Bureau of Health Management, 100 Broadway-Menands, Albany, New York, 12241.

A request for an adjustment of the durable medical equipment fee schedule has been submitted to the Bureau of Health Management by Joshua L. Oppenheimer of Greenberg Traurig, LLP, 54 State Street, Albany, N.Y. 12207, representing Empi, a manufacturer of non-invasive medical products used for physical rehabilitation. The request is for a change in the reimbursement amount for Transcutaneous Electrical Nerve Stimulation ("TENS") devices (HCPCS code E0730) from the current fee schedule amount of $76.25 to a suggested amount of $300.00.

The following justification for the requested fee adjustment was submitted and is summarized as follows:

  • The current reimbursement amount does not meet Empi's costs, which is at least three times more than the reimbursement provided in the existing fee schedule.
  • Due to the current $76.25 level of reimbursement in the fee schedule, Empi has been forced to remove this product from the New York State workers' compensation market, which is unfair to workers' compensation consumers who are unable to obtain Empi's product. Empi has received numerous requests from physical therapists and patients to make this product available.
  • TENS is a non-systematic, non-pharmacological, and non-addictive treatment option for persons who experience knee, lower back, shoulder, wrist/hand, or cervical pain. Empi's devices do not have the adverse effects that can occur with pain management drugs such as negative interactions with other medications, systemic effects, and habit forming effects. It is significantly less expensive than the daily cost of pain management drugs. The State could save money by adjusting the fee for TENS, and making the item available to individuals who would otherwise need to rely on pain medications, which can average between $5.88 and $9.18 per day for the most common pain medications such as OxyContin and Percocet.

This notice serves to solicit comments on this request for an adjustment of the durable medical equipment fee schedule. Comments can be submitted to David Austin, New York State Workers' Compensation Board, Bureau of Health Management, 100 Broadway-Menands, Albany, New York, 12241, or All comments must be received within 30 days of the date of this notice.

Any questions regarding these matters should be referred to the Office of General Counsel at 518-486-9564.


Zachary S. Weiss