Frequently Asked Questions
- What are Medical Treatment Guidelines?
The Medical Treatment Guidelines are the standard of care for treating injured workers in New York, and are based on the best available medical evidence and the consensus of experienced medical professionals.
- Are the Medical Treatment Guidelines mandatory for all work-related injuries or illnesses?
Use of the Guidelines is mandatory for treatment rendered to the mid and low back, the knee, the shoulder, the neck and Carpal Tunnel Syndrome (CTS).
- When did the Medical Treatment Guidelines become mandatory?
The use of the MTGs for treatment of an injury covered by an MTG became mandatory December 1, 2010. After December 1, 2010, all treatment involving the mid and low back, the knee, the shoulder and the neck was subject to the MTGs, regardless of the date of injury. On March 1, 2013, a new CTS MTG and an updated version of the initial four MTGs became effective and cover treatment performed on or after March 1, 2013, regardless of the date of injury.
- Do the Guidelines apply if the injured worker needs emergency treatment?
No. The Treatment Guidelines do not have to be adhered to if emergency medical care is required.
- Do the Medical Treatment Guidelines apply to all payer types?
Yes. The Guidelines apply to all private and municipal self-insured employers, group self-insured trusts, all Special Funds, the State Insurance Fund, and private insurance carriers.
- What is the Workers' Compensation Board Medical Director's Office?
The Board's Medical Director's Office (MDO) has an important role in the administration of the Medical Treatment Guidelines. The office is comprised of two Medical Directors and nursing staff located in Albany and Brooklyn.
The responsibilities of the MDO include the oversight of all medical issues at the Board which include the following:
- promoting high quality care and outcomes for all injured workers
- implementing the Medical Treatment Guidelines
- resolving disputes over optional prior approval (MG-1) and variance (MG-2) requests
- updating the Medical Treatment Guidelines
- educating and training guideline users statewide
How do I obtain a copy of the Guidelines?
The Guidelines and the regulations are on the Board's web site. Paper copies or a CD can be requested by submitting the Medical Treatment Guidelines Order Form and including the applicable fee. Copies of the New York Medical Treatment Guidelines may also be purchased from the American College of Occupational and Environmental Medicine, (ACOEM), at http://www.acoem.org/PracticeGuidelines.aspx
- How do I use the Medical Treatment Guidelines?
Medical providers should be familiar with the Guidelines and render treatment consistent with the Guidelines. When completing Guideline forms, the medical provider should include the Guideline codes for each requested test or treatment (each test or treatment is assigned a specific series of numbers and letters in the Guidelines).
- What is included in the 2013 Medical Treatment Guidelines Additions and Improvements?
- Guidelines for the treatment of Carpal Tunnel Syndrome
- An ongoing maintenance care program of PT, OT or spinal manipulation for patients with chronic pain who meet specified criteria.
- Regulatory and process changes.
- Are there procedural changes that will be implemented as part of the MTG improvement program beginning 3/1/2013?
Yes. The following changes have been made to the variance/pre-authorization process:
- Partial variances can be granted.
- Variance requests must be submitted within two business days of the medical provider preparing and signing the request.
- Variance denials are resolved by a medical arbitrator, unless the claimant or insurer requests a hearing.
- Submission of duplicate variance requests is prohibited when:
- time has not expired for the review of the initial request or
- new medical information to support the resubmission request has not been provided.
- Variance requests that are substantially similar to previously submitted requests can be denied by the carrier on that ground alone, without obtaining a new medical opinion on the need for such treatment. The Board may refuse to issue an order of the chair for a substantially similar request submitted while one is pending or without new medical information.
- Anterior acromioplasty and chondroplasty have been removed from the list of procedures that require pre-authorization.
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- Does the Board offer training on the Guidelines?
Yes. Free web-based training is available on the Board web site. Programs have been designed for different audiences, including medical professionals, attorneys, claims handlers, and provider office staff.
- When taking the eLearn training program, should the "page back" option be used?
To avoid eLearn application issues, refrain from using your browsers back button or forward button. The eLearn application will display a back button and forward button.
- After completing the eLearn training, why did I have difficulty printing the certificate?
Some individuals may experience issues when attempting to print their eLearn certificates. The problem can be related to one of many areas including the browser being used, the browser release, computer settings, printer, printer settings etc. If you do experience any problems printing, please contact your help desk or internet service provider.
- Are CE credits available for registered nurses, psychologists, or physical and occupational therapists who wish to take the training?
Registered nurses, psychologists, and physical and occupational therapists do not have training specifically designed for their professions and will not receive continuing education credits for completing the training at this time. These professionals may want to contact their professional organizations to determine if they can work with the Board to develop specific eLearning training programs with continuing education credits. In the interim, however, the Board recommends that these professionals take any of the current training courses they feel are appropriate and review the Medical Treatment Guidelines.
- If a chiropractor takes the training, will he or she receive both category 1 and category 2 credits?
No. The chiropractor will receive category 1 credits only.
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- How were the Guidelines developed?
The Guidelines are an important component of the 2007 workers' compensation reform. They were initially developed by the Workers' Compensation Reform Task Force and its Advisory Committee. The Reform Task force and it's Advisory Committee, established by the Governor under the auspices of the NYS Insurance Department, was comprised of well- credentialed medical professionals and representatives of business and labor. The drafts of the initial four MTGs (back, neck, shoulder and knee) submitted by the NYS Insurance Department were adopted and implemented by the Board in 2010. In September 2011, Insurance Department Superintendent delivered a proposed MTG for Carpal Tunnel Syndrome (CTS) developed by the NYS Workers' Compensation Reform Task Force and its Advisory Committee. The MTG was posted for public comment and changes made to the CTS which were implemented on March 1,2013.
In October 2011, a Medical Advisory Committee (MAC) was appointed, chaired by the Co-Medical Directors, consisting of nine physicians, three each appointed by Labor, Business and the Board to work on comprehensive chronic pain guidelines. Although the proposed chronic pain guidelines are not yet completed, it was agreed that some maintenance care (chiropractic and physical therapy) be incorporated into the back, neck, knee, shoulder and CTS MTGs and implemented on March 1, 2013.
- What are the benefits of Medical Treatment Guidelines?
- Set a single standard of medical care for injured workers,
- Expedite quality care for injured workers,
- Improve the medical outcomes for injured workers,
- Speed return to work by injured workers,
- Reduce disputes between payers and medical providers over treatment issues,
- Increase timely payments to medical providers, and
- o Reduce overall system costs.
- Were the Medical Treatment Guidelines tested in New York prior to implementation?
Yes. The Board conducted a pilot program beginning November 30, 2009 with participating medical providers and insurance carriers involving actual workers' compensation cases. More than 1,000 cases were handled by the pilot. Participants reported excellent results in terms of promoting communication between providers and carriers and delivering treatment faster to injured workers. Providers also reported that they had fewer disputes and received faster payment for treatment.
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- What is an ongoing maintenance care program?
An ongoing maintenance care program is a course of treatment that may include PT, OT or spinal manipulation, depending on the body parts involved. In certain circumstances, an ongoing maintenance care program may be indicated 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.
- Who is eligible for this program?
To qualify for ongoing maintenance care, the patient must have:
Specific, objective functional goals must be identified, measured and met in order to support the need for ongoing maintenance care. There is a limit of 10 visits per year when the criteria for the program are met. A variance for additional treatment is not permitted.
- reached maximum medical improvement (MMI) and have a permanent disability
- chronic pain
- demonstrated a decline in functional status without the identified treatment
- What documentation is required for participation in the ongoing maintenance care program?
The criteria that must be met and documented include:
The provider must establish, with documentation in the medical record, that the previous treatment maintained functional status and that, without treatment, functional status deteriorated. The need for ongoing maintenance treatment must be evaluated periodically by progressively longer trials of therapeutic withdrawal of maintenance treatment. Within a year, and annually thereafter, a trial without the maintenance treatment should be instituted. If deterioration in functional ability is documented during the therapeutic withdrawal, reinstatement of the ongoing maintenance care program may be acceptable.
- Patient participation in a self-management program developed jointly with the provider;
- Worsening of symptoms (function and pain) despite the self- management program;
- Initiation of the ongoing maintenance program with specific objective functional goals that are identified, measured and met as a result of the maintenance treatment.
- Who is authorized to provide treatment in an ongoing maintenance program?
Depending upon the injured body part(s) one of the following may be authorized to provide treatment: a physician, chiropractor, physical therapist or occupational therapist. Only one provider may develop or provide a course of treatment that meets the criteria for an ongoing maintenance care program for a particular body part.
- Is a variance request or C-4 Authorization required for an ongoing maintenance care program?
No. Ongoing maintenance care provided consistent with Guideline criteria does not require a variance or C-4AUTH. There is a limit of 10 visits per year when the criteria for the program are met. A variance for additional treatment is not permitted.
- Can a variance request be submitted once the maintenance program is completed?
No. There is a limit of 10 visits per year. No variance for additional treatment is allowed.
- When would treatment for an exacerbation be appropriate? What documentation is required?
An exacerbation is a temporary worsening of a prior condition by an exposure or injury. This results in a transient increase in symptoms and signs, and a decrease in function. Treatment allows the patient to recover to baseline status or what it would have been had the exacerbation not occurred.
The initial treatment of an exacerbation that fulfills the requirements for an exacerbation and is consistent with the applicable MTG recommendations and General Principles does not require a variance. (See MDO Bulletin on Treatment of Exacerbations, January 4, 2012, for exacerbation requirements)
- If a variance request for additional therapy or maintenance care was previously denied based on the 2010 Guidelines, would the patient be eligible for an ongoing maintenance program?
Potentially yes, but only if the patient meets all ongoing maintenance care program criteria. However, maintenance of function (i.e.: no documented evidence of objective deterioration in function) in the absence of intervening PT, OT or chiropractic treatment will be considered when evaluating whether the requirements for ongoing maintenance care have been met.
- If the case is established for multiple body parts, for example the back and knee, are 10 visits allowed for each body part or 10 in total?
If an established case for multiple body parts meets the requirements for ongoing maintenance care for each site, the patient is entitled to up to 10 visits for each body part. For example, 10 visits could be allowed for chiropractic treatment of the back and 10 visits for physical therapy for the knee. If multiple body parts were treated on the same day, each treatment would count as one visit for each body part. If only one body part was treated, then it would count as one visit, for the body part treated.
- To be eligible for ongoing maintenance care, there must be a determination of MMI and a permanent disability. Who is responsible for making that determination?
This requirement is satisfied if:
- a judge has found that the claimant has reached MMI and has a permanent disability, or
- (in the absence of a judicial finding) the attending physician or chiropractor documents that the patient has achieved MMI and has a permanent disability, using the designated Board form (C-4.3).
- Will a claimant who has settled a claim by either a Sec 32 agreement approved by the Board or a lump sum settlement and who continues to be entitled to payment for necessary medical treatment be eligible for ongoing maintenance care?
The claimant will be eligible for ongoing maintenance care if the claimant is medically eligible for ongoing maintenance care (see Q.3), the settlement agreement provides that the carrier or Special Fund remains responsible for medically necessary care and:
- the claimant was found to have a permanent disability prior to the settlement; or,
- the permanency finding is included in the settlement, or
- if the settlement agreement does not include a finding of permanency, the treating provider completes and submits medical documentation that the patient has reached MMI and has a permanent impairment.
- If the patient is allowed 10 visits for ongoing maintenance care per year, when does the year start?
If all the criteria for maintenance care are met, a maximum of 10 visits are allowed per calendar year regardless of when the claimant reaches MMI.
- How does the new Ongoing Maintenance Care recommendations impact existing therapy treatment under an approved variance (MG-2)? For example, how should one handle a claimant who has an approved variance for continuing therapy of x visits that is ongoing as of 3/1/13 and also meets the criteria for an Ongoing Maintenance Care program of up to 10 visits in the calendar year?
It's important to understand that the 2013 MTGs eliminate the need for a variance in order to provide ongoing maintenance therapy for those with chronic pain. Under the 2010 MTGs, an injured worker was required to seek a variance in order to deviate from the duration limitations for therapy. The 2013 MTGs permit Ongoing Maintenance Care (OMC) for injured workers who meet the specific criteria. OMC is not simply an entitlement to 10 therapy treatments per year for anyone who has reached MMI. The treatment must be part of an ongoing maintenance care program, which includes a self-maintenance program, periodic therapeutic withdrawal trials, and other features described in the guidelines. Variance requests are no longer permitted for maintenance care.
In the example given, the claimant may complete his or her treatment allowed by the variance. After completion of the treatment authorized by the variance, the claimant and provider, where appropriate, may institute an OMC program that complies with the MTGs. The therapy provided based on the prior variance (even if delivered after March 1) would not count towards the 10 treatment maximum available through an OMC program.
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- Do the procedures recommended by the Medical Treatment Guidelines require pre-authorization if the cost exceeds the $1,000 threshold?
With limited exceptions that are clearly noted in the Guidelines, testing and treatment consistent with recommendations in the Guidelines is pre-authorized. Therefore, the $1,000 pre- authorization threshold does not apply and consent by the insurance carrier is not required. Health care providers may treat without pre- authorization, so long as the care is consistent with the Guidelines. Pre-authorization is only required for:
- Lumbar fusions
- Artificial disk replacement
- Electrical bone growth stimulators
- Spinal Cord Stimulators
- Osteochondral autograft
- Autologous chondrocyte implantation
- Meniscal allograft transplantation
- Knee arthroplasty (total or partial knee joint replacement)
- The repeat performance of a surgical procedure due to failure of, or incomplete success from the same surgical procedure performed earlier, and if the medical treatment guidelines do not specifically address multiple procedures.
- How do medical providers request procedures within the Guidelines that require pre-authorization?
The request for pre-authorization should be made by completing the revised C-4AUTH form form and submitting it to the insurance carrier and the Workers' Compensation Board.
- When a surgeon obtains approval for a procedure which has been pre-authorized using the C-4 AUTH process and prescribes physical therapy according to the guidelines, does physical therapy require pre-authorization from the insurance carrier?
Physical therapy consistent with the Guidelines does not require prior authorization. For physical therapy to continue beyond what is recommended in the Guidelines, the treating medical provider would have to request a variance, and the therapy may continue if the variance request is approved by the carrier or the Board.
- The Medical Treatment Guidelines apply to injuries to the neck, mid/low back, shoulder, knee, and Carpal Tunnel Syndrome but the C-4AUTH form describes pre-authorization requirements for podiatrists. Why would a podiatrist use C-4AUTH when foot injuries are not part of the Guidelines?
The C-4 AUTH form is also used by all Workers' Compensation Board authorized providers when treating body parts not covered by the Guidelines to request authorization for services that cost more than $1,000, such as foot surgery as requested by a podiatrist.
- The Guidelines indicate that treatment is authorized (e.g. epidurals and surgery) if the Guideline standards are followed. Does this mean that a hospital automatically must accept this patient for surgery without written carrier authorization? What happens if the procedure is performed and the insurance carrier later denies payment to the provider or the hospital?
If surgery is performed in accordance with the Guidelines, a carrier may not deny payment.
Hospital representatives should educate themselves on the Medical Treatment Guidelines. No written authorization is needed when the Guidelines are followed. Treating medical providers may request optional prior approval from a participating carrier to confirm that the surgery will be reimbursed. If the carrier is not participating in optional prior approval, the provider may informally request authorization from the carrier.
- Now that a new C-4 Authorization form has been issued, can older versions of the C-4 Authorization form still be used?
A request to perform one of the 11 medical procedures which require pre-authorization should be submitted on the 2/13 version of the C-4 Authorization form. If authorization is requested for a body part not covered by the Medical Treatment Guidelines, either version of the C-4 Authorization form may be used, however the use of the new C-4 Authorization form is encouraged in all cases.
- For injuries not currently covered under the Medical Treatment Guidelines, does the C-4 Auth process still apply?
Yes. Medical services costing more than $1000 must be authorized by the carrier or the Board. Any denial of such medical service must be within 30 calendar days from receipt of the request and "must be based on a conflicting second opinion rendered by a physician authorized by the board" (WCL § 13a(5).
- Does a surgeon need to obtain pre-authorization for repeat surgeries to any body part or only for those body parts covered by the Medical Treatment Guidelines?
The prior authorization for repeat surgeries applies to any surgery covered by the five Medical Treatment Guidelines (mid and low back, neck, shoulder, knee and Carpal Tunnel Syndrome) if the medical treatment guidelines do not specifically address multiple procedures. For surgery to body parts not covered by the Medical Treatment Guidelines and costing more than $1000, pre-authorization is required.
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- Is there anything medical providers can do if they want assurance that their interpretation of the guidelines is correct, or if they need an approval document for a hospital or other entity?
Yes. The regulations provide for an optional prior approval procedure where the medical provider can request optional prior approval from a PARTICIPATING insurance carrier to determine correct application of the Guidelines. A Board form (MG-1) is available for this purpose on the Board's web site.
- Are all insurance carriers and other payer types required to participate in the optional prior approval process?
No. This process is only available if the insurance carrier or employer is participating in the optional prior approval program. A list of insurance carriers and employers who have opted out of the optional prior approval process is available on the Board's web site. Search for Carrier Contacts and Participation
- What is the difference between Pre-authorization and Optional Prior Approval?
A. Pre-authorization (C4AUTH): For treatment of injuries to the mid and low back, neck, knee, shoulder and Carpal Tunnel Syndrome, pre-authorization is only required for procedures listed in question #1 Pre-Authorization. The pre-authorization process, used for treatments or procedures exceeding a $1,000 threshold, continues to be used for all other body parts. The pre-authorization process uses the C-4 AUTH form and it gives the carrier 30 days to respond to a request. During that period, the carrier has the right to obtain an IME or records review. To deny a pre-authorization request, the carrier must show a conflicting medical opinion.
B. Optional Prior Approval (MG-1):This process is more limited in focus, and is designed to only answer one question, "is the requested treatment or test a consistent application of the guidelines?" Providers must electronically submit the (MG-1) form. Carriers have eight business days to respond. Disputes are resolved by a binding decision of the Board's Medical Director's Office. The process allows medical providers to obtain a determination prior to treating on whether the requested treatment is consistent with MTG recommendation. It allows carriers to object before a test or treatment is performed.
- Does a carrier have to respond to the Optional Prior Approval request if it is not participating in the process?
No. An insurance carrier who is not participating is not required to respond to an Optional Prior Approval request.
- Can the insurance carrier obtain an IME or records review upon receiving a request for optional prior approval?
No. The insurance carrier must approve or deny the request based upon a review of the medical documentation to determine if the test or procedure is a consistent application of the Guidelines.
- Who may deny an Optional Prior Approval request for the insurance carrier?
A denial of an Optional Prior Approval request must be reviewed by a medical professional and must include the basis for the denial.
- Can a request for Optional Prior Approval and a Variance request be submitted at the same time?
Yes. However when multiple requests for Medical Guideline processes are received that are all integral to a primary procedure request, but have different carrier response timelines, the timeframe for all requests is extended to that of the request with the longest timeline or to a maximum of 15 calendar days if there is no IME or 30 calendar days if IME is requested.
- Can the insurance carrier deny the request for optional prior approval while waiting for the results of an independent medical exam?
No. The insurance carrier must approve or deny the request based on the application of the Guidelines.
- Can physical and occupational therapists request optional prior approval?
No. The request for optional prior approval can only be made by the treating medical provider.
- Where can I get a listing of the insurance carriers who do not participate in the optional prior approval process?
This information is currently available on the Board web site and will be regularly updated. Search for Carrier Contacts and Participation
- If a carrier has opted out of the Optional Prior Approval program, will the Board provide a response to an MG-1 request verifying that the treatment is within the Medical Treatment Guidelines? If yes, will the same time frame apply? If no, what does the Board recommend for providers who wish to obtain prior approval in situations where the carrier has opted out of the program?
If a carrier has opted out of the Optional Prior Approval program, the Board will not respond to MG-1 requests submitted by the claimant's medical provider. Medical providers are encouraged to treat the claimant in accordance with the Medical Treatment Guidelines and submit timely bills to the carrier or self-insured employer. Medical providers may also reach out to the carrier informally to request written authorization for treatment covered by the Medical Treatment Guidelines.
- Is an EC-70 (Medical Arbitrator's Decision) subject to administrative review under Section 23?
No. When a medical arbitrator makes a decision on an optional prior approval request, that decision is not subject to administrative review under Section 23.The Board cannot give legal advice with respect to whether such decisions are subject to a challenge pursuant to CPLR Article 78. The new regulations do not change the CPLR, so whether the Medical Arbitrator's decisions can be challenged by an Article 78 proceeding will be governed by existing law.
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- When is a variance request denial resolved by a medical arbitrator instead of in a hearing before a workers' compensation law judge? How has the process changed?
A request for review of a variance denial is directed to medical arbitration unless the claimant or the insurer requests review by a workers' compensation law judge. The request for review by a medical arbitrator or a law judge may be made on a case-by-case basis.
- What should a medical provider do if he or she believes an injured worker needs treatment that is not consistent with the Guidelines?
It is recognized there are legitimate reasons for exceptions to the Medical Treatment Guidelines:
In those cases, the Treating Medical Provider may submit a variance request on form MG-2.
- Extend duration of treatment when a patient is continuing to show objective functional improvement.
- Individual circumstances, such as other medical conditions, may delay an individual's response to treatment, or make certain treatment appropriate.
- Actual treatment is not addressed by the Guidelines.
- Peer reviewed studies may provide evidence supporting new/alternative treatments.
- Can the insurance carrier request an IME or records review upon receipt of a variance request?
Yes. The variance process does allow an additional amount of time (up to a total of 30 days) for the carrier to have an independent medical exam or record review as long as the insurance carrier notifies the provider and the Board within 5 days of a variance request that an independent medical exam or record review is being conducted.
- The Guidelines indicate a specific number of visits for chiropractic treatment. Does that mean that a chiropractor would have to submit a request for additional visits?
Yes. The chiropractor may submit a variance request to request treatment beyond what is recommended under the Guidelines, but must document that the patient is continuing to show objective functional improvement that includes, but are not limited to, positional tolerances, range of motion, strength, endurance, activities of daily living, cognition, psychological behavior, and efficiency/velocity measures that can be quantified. If the chiropractic care is being provided for those with chronic pain who meet the criteria for an ongoing maintenance care program, no variance beyond the ten treatments is allowed.
- Can physical and occupational therapists request a variance?
No. The request for additional therapy can only be made by the treating medical provider.
- Can a physical or occupational therapist complete the MG-2 form, send it to the treating physician for signature, and then submit the request to the appropriate parties?
Yes. A physical therapist may complete the MG-2/MG-2.1 form(s) including the Guideline reference codes and supportive documentation of objective findings, and submit it to the treating medical provider for review, approval and signature. Once the treating medical provider approves and signs the form(s), the physical therapist may submit the completed MG-2/MG-2.1 form(s) on behalf of the treating medical provider. The completed MG-2 form must be submitted to the insurance carrier or self-insured employer, the Workers' Compensation Board, and the claimant's legal counsel, if any, or to the claimant if not represented.
- Who at the insurance carrier must review the variance request if the insurance carrier intends to deny the request?
If the insurance carrier denies the request for a variance on the basis that the treating medical provider did not meet the burden of proof that a variance is appropriate for the claimant and medically necessary, the variance can be reviewed by the insurance carrier's designated point of contact. If the denial of the variance is for any other reason, the denial must be reviewed by the medical professional designated by the insurance carrier.
- For denied variance requests, can an insurance carrier attach its' peer review decision to the variance request and remain in compliance with the regulations?
Yes. A carrier can attach its' peer review (from an appropriate health care professional) to the form however the MG-2 form must still be signed and dated by the carrier's designated point of contact.
- Can a carrier offer a voluntary appeal process for denied variances or is that intended to be the "informal resolution" process?
Yes. The Board strongly encourages carriers and treating providers to informally resolve disputes involving the Medical Treatment Guidelines, including variance requests. If the dispute is resolved by informal discussion, the carrier must submit to the provider and the Board a signed copy of the MG-2 form indicating the dispute has been resolved.
- If the Medical Treatment Guidelines clearly indicate that a certain procedure is not recommended, is a request for a variance appropriate?
Yes. The regulations state, "When a treating medical provider determines that medical care that varies from the Guidelines, such as when a treatment, procedure or test is not recommended by the Medical Treatment Guidelines, is appropriate for the claimant, he/she shall request a variance from the insurance carrier or Special Fund". The medical provider must meet the "burden of proof" when seeking a variance (Please see Question 36).
- If a carrier requests an IME upon receipt of a variance request the carrier has 30 days to reply. When does the 30 day period begin knowing that the carrier has five days to notify a provider that it wants an IME to address the variance?
The insurance carrier has 30 days from the date of receipt of the variance request to have the IME performed and respond to the variance request.
- When the insurance carrier responds to a variance request on form MG-2, can the carrier state, "see attached report" in section E and include the report?
Yes, however the report must clearly indicate the reasons for the denial of the variance.
- If the insurance carrier fails to exhaust all of its remedies under the regulations, including the enforcement of a subpoena in Supreme Court, will the insurance carrier be barred from seeking to have the Treating Medical Provider's reports precluded?
A subpoena is not required to depose the treating medical provider. If an insurance carrier has not exhausted all of its remedies under the Board's regulations, it will not automatically be barred from seeking to preclude the treating medical provider's reports. The determination will be made by the law judge based upon the facts, the actions of the insurance carrier, and the time period within which the deposition had to be completed.
- What determines whether a variance request (MG-2) dispute is resolved by a law judge (expedited hearing) or the Medical Director's Office?
A dispute over a variance denial request will be decided by a medical arbitrator unless either party requests a hearing before a law judge.
- What is the difference between resolution by expedited hearing and by medical arbitrator?
An expedited hearing involves the presentation of a dispute to a workers' compensation law judge. The parties have the option of taking medical testimony (usually by deposition) before the judge rules on the dispute. Either party may appeal the outcome of the hearing. It typically takes more than 60 days from the request for a hearing until the hearing is scheduled and a decision issued.
Resolution by the medical arbitrator involves the Medical Director's Office (MDO) review
of the medical documentation submitted by the parties. There is no testimony taken and
no hearing occurs. The medical arbitrator typically resolves the dispute within one week
of receipt of the request for a decision. No appeal from the decision is allowed.
- If an expedited hearing is requested, how much time is provided for preparing and submitting depositions?
All parties have 30 calendar days from receipt of the request for a hearing to submit deposition transcripts (or take testimony at the Expedited Hearing if the claimant is not represented). The 30-day time limit begins upon receipt of the request for a hearing, not upon receipt of the Notice of Hearing for an Expedited Hearing.
- How does an unrepresented claimant submit medical testimony in the expedited hearing process?
If the claimant is not represented, testimony will be taken at the hearing.
- How can a party compel appearance at a deposition of an out-of-state provider?
If the out of state provider is treating a claimant who lives and is treated outside New York State, the Medical Treatment Guidelines do not apply. If the Medical Treatment Guidelines do not apply, then there is no need to request a variance and there will be no need to depose such provider. However, if the out of state provider is treating a claimant who lives in New York State, the Medical Treatment Guidelines apply. In that case the methods used to depose out of state providers for all other issues should be used. A subpoena is not necessary if the provider agrees to a date and time to be deposed.
- If a carrier denies a variance request based on the opinion of a non-physician "medical professional," will that opinion be afforded the same weight as the opinion of a claimant's physician, whether at arbitration or hearing?
Questions of credibility, reasonableness and weight of medical evidence are for the Board to decide. It is within the province of the Board to resolve conflicts in the medical testimony as well as to determine the reasonableness of and the weight and credibility to be given to such testimony (see Matter of Forrest v Grossman's Lumber, 175 AD2d 498 , lv denied 78 NY2d 862 ).
- Is a review of a variance request by the insurance carrier's medical professional considered an independent medical examination (IME) or review of records? Also, how long does the insurance carrier have to respond to the request if the review is performed by its medical professional?
Review by the insurance carrier's medical professional is not an IME or a record review. An IME involves a physical examination of the claimant and must be performed by an examiner authorized by the Chair pursuant to Workers' Compensation Law §§ 13-a (4) (b) and 137 (3)(a). A review of records, as defined in 12 NYCRR §324.1(i), is an evaluation of the medical records, test results, depositions, transcripts, and other records and reports in the Workers' Compensation Board's electronic case folder by a medical provider authorized by the Chair to treat claimants or to conduct IMEs. Review of the insurance carrier's medical professional is new and allows the insurance carrier to use a medical professional it already employs or contracts with to provide utilization review services. Specifically, an insurance carrier's medical professional, as defined in 12 NYCRR §324.1 (c), is a physician, physician's assistant, nurse practitioner, or registered professional nurse licensed by New York or the state where the professional practices who is either: 1) employed by the insurance carrier; 2) has been directly retained by the insurance carrier to review its claims and advise the insurance carrier; or 3) is employed by a URAC accredited company retained by the insurance carrier through a contract to review claims and advise the insurance carrier or Special Fund.
If the insurance carrier has a variance request reviewed by its medical professional, it must respond to such request within 15 calendar days of receipt of the request (12 NYCRR §324.3[b][i]). If the insurance carrier decides to obtain an IME or review of records to respond to a variance request, it must notify the Chair within 5 business days of such decision and respond within 30 calendar days of receipt of the request (12 NYCRR §324.3[b][ii]).
- If depositions in a case have already been ordered and are scheduled sometime after the 30 days that apply to a variance hearing, can the parties "fold" the variance issues into those depositions and produce one set of depositions after the 30 day time period?
The new regulations specifically provide that if the parties cannot informally resolve the variance dispute and opt out of the medical arbitrator process, an expedited hearing shall be scheduled within 30 days. If medical professionals are deposed, transcripts shall be provided to the Board on or before the hearing. For good cause shown the WCLJ may grant an adjournment if a medical professional cannot be deposed prior to the hearing. So, variance depositions cannot be folded into later depositions as a matter of course.
- Will the variance denial expedited hearings be limited to the sole issue of the variance denial? Or will the designated variance WCLJ address other outstanding issues, which may well be pending before another WCLJ?
In order to conserve Board resources, at most variance hearings the WCLJ will not address all outstanding issues in the claim.
- There are at least two outlying hearing points which are not Customer Service Centers (New City and Allegany) which do not have video capability. How will variance hearings be conducted and scheduled in those locations? Will the variance judge for the district travel to these sites instead of the WCLJ regularly assigned or will these locations be considered exceptions and the variance hearings heard by the judge regularly assigned to these locations and at regular intervals?
Variance hearings in places where the Board has no video capability will be conducted in person or by telephone. Legal representatives in those locations may appear either in person at the hearing point or by telephone.
- If an insurance carrier denies a variance request based upon review by its medical professional, which may be a physician assistant, nurse practitioner, or registered professional nurse, will such medical professional be subject to cross-examination at a deposition or hearing?
Yes, the insurance carrier's medical professional is subject to cross-examination at a deposition or hearing (12 NYCRR §324.3[d][ii]).
- What if the claimant's attorney, who is a sole practitioner, is on vacation or out of the office due to injury or illness when the insurance carrier denies a variance request so he or she cannot file a timely request for review of the denial?
The claimant or his/her legal representative can file a request for review of a denial of a variance within 21 business days of the receipt of the insurance carrier's denial. Receipt is deemed to be the date sent if sent by one of the prescribed methods of same day transmission or, if sent by regular mail, five business days after the insurance carrier certified that the variance response was sent to the claimant and claimant's legal representative (12 NYCRR §324.3[c]). Rule 1.3 of the New York Rules of Professional Conduct requires attorneys to "act with reasonable diligence and promptness in representing a client." 22 NYCRR Part 1200, Rule 1.3. Paragraph (b) of Rule 1.3 states that, "[a] lawyer shall not neglect a legal matter entrusted to the lawyer." The comments to Rule 1.3 issued by the New York State Bar Association advises a sole practitioner to prepare a plan for situations such as an injury or illness that keeps an attorney out of the office, which designates another lawyer to review client files and determine if immediate protective action is needed. A sole practitioner should have such a plan to ensure that no deadlines are missed.
- Are medical providers permitted to request review of a variance request denial on behalf of the claimant?
No. The claimant and/or the claimant's legal representative are the only parties who may request review of a carrier's denial of a variance request.
- Is there a specific form for the Treating Medical Provider to use to document the claimant's agreement to the treatment that varies from the Medical Treatment Guidelines when submitting a variance request?
Yes, the MG-2 Form, Attending Doctor's Request for Approval of Variance and Carrier's Response. In Section C on the first page of the form, there is a certification above the Treating Medical Provider's signature that includes the following statement, "I certify that the claimant understands and agrees to undergo the proposed medical care." A statement signed by the claimant is not required.
- What is the process for a claimant to file for review from a denial of a variance?
Is there a form the claimant must use to request such review?
When the claimant is represented by an attorney or licensed representative, the claimant or the legal representative must complete Section G of the Attending Doctor's Request for Approval of Variance and Carrier's Response (MG-2) form and send it to the Board within 21 business days of receipt of the denial of the variance. This section is towards the bottom of the second page of the form. The clamant must: 1) check the box to the left indicating he or she is requesting review of the denial of the variance, 2) choose whether the request for review will be decided by the Medical Arbitrator or at a hearing, and 3) sign and date the form. If the claimant does not have legal representation, the claimant must request review within 21 business days by completing Section G of the MG-2 form, requesting review of the variance denial using the RFA-1 form, or by writing a letter making such request and sending it to the Board.
- Insurance carriers must send a copy of the response to a variance request to the Treating Medical Provider, Board, claimant, and claimant's attorney. How will the insurance carrier send the response to the claimant by "same day transmission" if the insurance carrier does not have the claimant's email address or fax number?
If the insurance carrier does not have the claimant's email address or fax number, the insurance carrier must send the response to the claimant by regular mail with a certification of the date and to whom the response was sent (12 NYCRR § 324.3[b][iii]).
- If a Treating Medical Provider does not have the capability to send the variance request (Form MG-2) to the insurance carrier by one of the methods of same day transmission, so the variance request is sent by regular mail, when does the 5 business days from receipt of the variance request begin to run to notify the Chair that an independent medical examination or review of records will be obtained?
When a Treating Medical Provider does not have the equipment to send a variance request to the insurance carrier by one of the methods of same day transmission, the Treating Medical Provider may send it by regular mail with a certification that he/she is not equipped to send and receive the variance request form (MG-2) by one of the methods of same day transmission and the date the form was sent to the insurance carrier and the Board (12 NYCRR §324.3[a]). If the variance request is sent by regular mail, receipt is deemed to be five business days after the date the Treating Medical Provider certified the form was sent to the insurance carrier (12 NYCRR "324.3[b][ii][a]). Therefore, if the variance request is sent by regular mail because the Treating Medical Provider is not equipped to send it by email, facsimile, or other electronic means, it is deemed received by the insurance carrier five business days after the date the Treating Medical Provider certified he/she mailed it to the insurance carrier.
- Can medical providers provide treatment that is not consistent with the Medical Treatment Guidelines without obtaining a variance?
No. The Medical Treatment Guidelines are the standard of care in New York State. If one wishes to provide medical treatment that is not consistent with the Medical Treatment Guidelines, the treating medical provider must seek a variance from the carrier. If the variance is not approved by the carrier or by the WCB, then the treatment is not authorized and should not be provided.
- Does a physical therapist keep the patient on program or discharge care while waiting for the status of the variance request?
The treating medical provider or therapist should initiate the variance request as early in the treatment program as possible and avoid waiting until treatment is complete, if it is clinically appropriate. According to the Medical Treatment Guidelines regulations, "When a Treating Medical Provider determines that medical care that varies from the Medical Treatment Guidelines, such as when a treatment, procedure, or test is not recommended by the Medical Treatment Guidelines, is appropriate for the claimant and medically necessary, he or she shall request a variance from the insurance carrier or Special Fund by submitting the form prescribed by the Chair for such purpose. A variance must be requested before medical care that varies from the Medical Treatment Guidelines is provided to the claimant and a request for a variance will not be considered if the medical care has already been provided".
- What steps are necessary if the carrier wants to obtain an IME after receiving an MG-2 Variance Request?
Step 1:If the carrier wants to schedule an IME, the first step is to respond to the MG-2 within 5 business days of receipt by completing Section D (Notice of Independent Medical Examination [IME] or Medical Records Review.) The MG-2 response must be sent by same day transmission (or regular mail to the provider if the provider has no electronic means of receipt) to the treating medical provider and the Workers' Compensation Board.
Step 2:When the IME report has been completed, the carrier must then complete the second step which is to provide a final response to the MG-2 within 30 days of receipt of the MG-2 by completing Section E (Carrier's/Employer's Response to Variance Request). The MG-2 final response must be sent by same day transmission (or regular mail to the provider if the provider has no electronic means of receipt) to the treating medical provider, the Workers' Compensation Board, claimant, claimant's legal representative, if any, and any other parties. In Section E the carrier must state the basis for the denial in detail and attach the IME report or identify the IME report by document identification number and the date received by the Board if the IME report is already in the Board's electronic file (12 NYCRR 324.3[b] and ).
What makes an MG-2 form complete?
All Board forms should be completely filled out with all available information. Certain information is essential to the Board's internal procedures. Without that essential information, the Board cannot process the form. In order for the Board to take action on an MG-2 form, the Board requires that the following fields be completed.
(1) Patient's name, and
(2) Insurance Carrier's Name & Address.
Please note that the Insurance Carrier's or TPA's name and address must match the information the Board has on file.
(1) Individual Provider's WCB Authorization Number for all providers authorized by the New York State Workers' Compensation Board
(1) Date Variance Request Submitted and Method of Transmission,
(2) Guideline Reference for the body part followed by the 2 to 4 character corresponding reference in the Medical Treatment Guidelines or followed by the four letters N-O-N-E if there is no listed procedure,
(3) Approval Requested For requires a written description of the treatment requested,
(4) Statement of Medical Necessity requires a description directly on the form and if there is a supporting medical report in the Board's case file, enter the date of service or if there is no supporting medical report in the case file, attach a medical report and enter "See attached medical report" on the form;
(5) A check box selected for how the carrier was contacted. Please note if you listed your fax number at the top of the form, do not select the second check box; and
(6) the Provider's signature or stamp. Please note that initials next to the signature or stamp are not acceptable.
All other information that is requested on the form should be filled in if available.
Example of a Properly Completed MG-2 Form
- What is the "burden of proof" for a provider seeking a variance?
There are three basic types of variance requests. The provider must present documentation showing that the proposed treatment, which may be 1. An extension beyond the maximum duration or frequency recommended in the MTG, 2. Not recommended in the MTGs, or 3. Not addressed in the MTG is medically necessary and likely to be effective for the patient. The documentation required varies depending upon the type of variance (treatment) the provider is seeking. To satisfy the burden of proof, the provider must meet the documentation requirements for the type of variance requested.
All variance requests must include:
1. A medical opinion stating why the proposed care is appropriate and medically necessary for the patient
2. Certification by the requesting provider that the patient agrees to the proposed care, and
3. An explanation why alternatives under the MTGs are not appropriate or sufficient
Additionally, requests to extend treatment beyond recommended maximum duration/frequency must include:
4. Objective evidence that the requested treatment has produced functional improvement,
5. Further improvement is reasonably expected with additional treatment. Documentation should include explanation as to why treatment has not produced maximum effect and
6. Proposed plan for additional treatment with the treatment duration and frequency, and functional goals.
Finally, for treatment or testing that is not recommended or not addressed, the following must be documented:
1. A description of any signs or symptoms which have failed to improve with previous treatments provided according to MTG recommendations
2. Proposed treatment plan and an explanation of why proposed treatment or testing is necessary at this time, including specific functional goals, if applicable.
3. Medical evidence in support of efficacy of the proposed treatment or testing – may include relevant medical literature published in recognized peer reviewed journals.
- What information should a carrier include if it objects because a provider has not met the "burden of proof?"
The new version (2-13) of the MG-2 contains a checkbox for "Burden of Proof" in Section E. The carrier should check that box and describe in the text box to the left why the provider fails to meet the burden of proof. For example, if the provider seeks to extend a particular treatment the carrier might object that the provider failed to provide any evidence that the treatment already provided has produced objective functional improvement.
- If durable medical equipment is not addressed in the Guidelines, is a variance request required in order for the item to be supplied to the injured worker?
Yes. A variance request would be required if the durable medical equipment is not addressed in the Guidelines.
- In the return to work section of the General Principles of the Guidelines, (section A.17) it describes what is included in a functional capacity evaluation and it states, "In most cases, the question of whether a patient can return to work can be answered without an FCE." Does that mean that an FCE can be performed without requesting a variance?
The General Principles describe a functional capacity evaluation to be a comprehensive or more restricted evaluation of the various aspects of function as they relate to the patient's ability to return to work. An FCE can be performed without requesting a variance if it is clinically appropriate for the injured worker consistent with the General Principles of the Medical Treatment Guidelines, the Guidelines, and the criteria outlined in the New York Workers' Compensation Medical Fee Schedule ground rules.
- The back Guidelines recommend a maximum time frame of 3 months for manipulation. Can a chiropractor provide manipulation for the 3 months, and at the conclusion of the 3 month period, administer therapeutic exercise or other modalities without an approved variance?
All medical care should be based on the assessment of the patient, the patient's condition, and the re-evaluations of the patient at the recommended intervals, demonstrating objective functional improvement.
- If 8 weeks of treatment is recommended under the Guidelines, does the patient have to been seen during consecutive weeks within that 8 week period, or can the weeks be broken up due to patient no-shows, cancellations, vacations, or illness?
No. The duration time frames that are recommended in the Guidelines are consecutive. If the recommended duration time frame is 8 weeks, then treatment beyond the 8 weeks would require a variance request.
- Whether, pursuant to 12 NYCRR 324, 1(d) 3, a Utilization Review Accreditation Commission (URAC) certified utilization review organization providing variance request services in NYS through an employee who is a registered professional nurse licensed in NYS and which organization is retained by a TPA under contract with a carrier, Special Fund or self insured employer meets the regulations definition of "an insurance carrier or Special Fund's medical professional"?
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- Will claimants on long term narcotics and other pain medications have their medications discontinued because of the recommendations in the Medical Treatment Guidelines?
No. The Guidelines state that "Narcotic medications should be prescribed with strict time, quantity, and duration guidelines and with definitive cessation parameters… [with a] Maximum duration: 2 weeks." The Guidelines further state: "Use beyond two weeks is acceptable in appropriate cases. Any use beyond the maximum should be documented and justified based on the diagnosis and/or invasive procedures"
It is critical to note that the MTG do not require and are not intended to recommend the immediate cessation of prescription narcotics or other medication for claimants who have been using such medication long term. There are very significant health risks associated with the sudden withdrawal of narcotics and other pain medications. The MTG allow for the use of pain medication beyond the maximum duration with documentation in the medical record supporting the medical necessity of the ongoing use of pain medication. In cases where the need for continued pain medication beyond two weeks is documented and justified, a variance is not required. See Subject Number 046-457 dated December 1, 2010.
Further guidelines on the long term use of narcotics and other pain medications will be developed by the Board in the near future.
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- If a carrier stipulates one chiropractic visit per week for the rest of the claimant's life, do the guidelines apply after implementation of the Guidelines, or does the stipulation overrule the Guidelines?
Stipulations entered into prior to December 1, 2010, that comply with 12 NYCRR § 300.5 are binding upon the parties. Adoption of the Medical Treatment Guidelines does not invalidate an otherwise valid stipulation.
- What impact do the new guidelines have on a claimant with an existing carpal tunnel syndrome (CTS) claim? Do therapy treatments provided prior to March 1, 2013 count against duration limits?
The limitations on therapy in the CTS MTG will take effect in the same manner as they did for the back, neck, knee and shoulder MTGs in 2010. Treatment that is provided prior to March 1, 2013, or that the carrier has authorized (via C-4Auth) before March 1 but occurs afterward, does not count against the duration limitations for therapy under the new MTG. Only therapy provided after March 1, or after completion of a pre-authorized course of therapy (from prior to March 1), whichever is later, must comply with the CTS MTG therapy recommendations.
For example: if six weeks of PT was approved by the carrier on 01/31/2013, the recommended frequency and duration limitations for PT in the Carpal Tunnel Syndrome MTG would not apply until after the approved six week course of treatment had been completed.
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- Are insurance carriers required to comply with the Medical Treatment Guidelines?
Yes. The regulations require insurance carriers to incorporate the Medical Treatment Guidelines into their policies, procedures, and practices and report their compliance to the Workers' Compensation Board. The regulations require that insurers must pay providers for services rendered in accordance with the Guidelines.
- Is the insurance carrier required to designate certain individuals to serve as a point of contact to assist the Board and medical providers with Medical Treatment Guidelines issues?
Every insurance carrier is required to designate a qualified employee or employees if it handles its own claims, or a qualified employee or employees of its licensed representative as a point of contact for the Board and Treating Medical Providers regarding requests for optional prior approval and requests for a variance within 30 days of the effective date of the regulations. The insurance carrier must also designate a qualified employee or employees, or designate a qualified employee or employee of it's licensed representative, to receive and act upon requests for authorization for procedures that are not pre-authorized under the Guidelines. The designated employee's name, telephone number, fax number, and e mail address must be reported to the Workers' Compensation Board. In addition, if there is a change in the designated point(s) of contact, the change must be reported to the Board within 10 business days of the change. This information is available on the Board's web site. Search for Carrier Contacts and Participation
- What is the difference between the carrier administrator and the contact person?
The carrier administrator is the person who has the authority to opt the carrier out of the Optional Prior Approval process, certify that the carrier has implemented Medical Treatment Guidelines into its policies, practices and procedures and provide designated contact information for the Variance, Optional Prior Approval and Pre-Authorization processes. The administrator has a user id and password to log into the administrator functions on the Board's web site.
The carrier administrator can also be the contact for the various Medical Treatment Guidelines processes, but does not necessarily have to be.
- If a TPA works with several carriers does the TPA assign an administrator and contact person for each carrier (or under the TPA name)? Can there be two people assigned, one being a back-up person?
The insurance carrier should designate a representative of its organization as the administrator with its Board assigned "W" number on the registration form, and designate the third party administrator contacts in the designated contact(s) fields on the form. The name of the third party administrator can be identified in the District/Region/Unit field in the designated contact section of the registration form. The administrator can add multiple third party administrator contacts as part of the registration process.
- If a carrier of record sends its claims to several different third party administrators, can its third party administrators differ regarding the opt-in/out procedure, or does the carrier bind its administrators? If the carrier binds its administrators, what happens when two carriers send work to the same administrator and they have different opinions on opting out?
The insurance carrier must make the decision whether to opt in or out of the optional prior approval process. A carrier may not designate one TPA who is opting in and another TPA who is opting out.
- How can a medical provider identify a third party administrator by checking the Board website when requesting prior approvals or variances?
This information is available on the Board web site if the insurance carrier administrator has identified the name of the third party administrator and the contacts for that TPA in the designated contact sections of the carrier registration form. [Search for Carrier's Designated Contact Information]
- Can a third party administrators (TPA) register the contact person for insurance carriers who are its clients using the TPA's "T" number?
No. It is insurance carriers and self-insured employers who must designate a contact person, the information must be supplied for each separate insurance carrier under the insurance carrier's "W" number.
- What is the e-mail and contact should an employer want to change contact for Pre-Authorizations or Variance or Opt out? Also, do self- insured employers or a TPA for the self insured employer complete the "Medical Treatment Guidelines Carrier Registration?
The insurance carrier or self-insured employer should be the one to designate a representative of its organization as the administrator with its Board assigned "W" number on the registration form. The carrier or self-insured employer can designate the third party administrator contacts in the designated contact(s) fields on the form. The name of the third part administrator can be identified in the District/Region/Unit field in the designated contact section of the registration form. The carrier administrator receives a user name and password and can modify the administrator or the contact information at any time.
- Does the TPA assign its own administrator and medical professional?
The insurance carrier or self-insured employer should be the one to designate a representative of its organization as the administrator with its Board assigned "W" number on the registration form. The carrier or self-insured employer can designate the third party administrator contacts in the designated contact(s) fields on the form. The name of the third party administrator can be identified in the District/Region/Unit field in the designated contact section of the registration form. The TPA can designate its own medical professional, which does not have to be reported to the Board by the carrier or self-insured employer.
- Can an adjuster approve treatment or does it need to be reviewed by a medical professional?
An adjuster can approve treatment; however, a denial must be made by a medical professional.
- Which carrier(s) must respond to Medical Treatment Guidelines (MTG) forms regarding provider requests for variances and optional prior approvals in claims involving Medical Treatment Guidelines where it has not yet been decided which carrier(s) is/are liable for payment?
The primary carrier. Regarding claims involving Medical Treatment Guidelines where it has not yet been decided which carrier(s) is/are liable for payment, the Board will designate one carrier as the primary carrier on the Board file who will be solely responsible for responding to medical treatment and/or authorization issues pending resolution of carrier liability. Once carrier liability has been determined, the liable carrier will become the primary carrier responsible for handling medical care related to the claim and will assume responsibility for all medical decisions made by the interim primary carrier while carrier liability was in dispute.
- Which carrier(s) must respond to Medical Treatment Guidelines (MTG) forms regarding provider requests for variances and optional prior approvals in claims involving Medical Treatment Guidelines where multiple carriers have been deemed liable for payment?
All carriers involved in the apportionment of liability must respond. Regarding claims involving Medical Treatment Guidelines where multiple carriers have been deemed liable for a claim, each carrier is assigned a percentage of the liability for medical treatment, compensation payments to the claimant or both. The medical provider will need to review the Board's Notice of Decision to determine the carrier liability as each case will have a different percentage allotment. If the medical provider has not received a copy of the Notice of Decision, or has questions regarding the determination of liability they should contact the Board for assistance.
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- What recourse does a medical provider have if treatment is rendered in accordance with the Guidelines and does not receive payment or a response from the insurance carrier?
If there is no response or payment within 45 days from the date the insurance carrier receives the bill, the medical provider may request an Administrative Award on Board form HP-1 .
- What if the insurance carrier objects to a bill due to Guideline issues?
If an insurance carrier objects to a bill stating that the medical treatment was an incorrect application of the Guidelines, was not consistent with the Guidelines, or exceeded the approved variance, a C-8.1 form must be timely filed with the Board and the medical provider. The objection will be decided through the Board's adjudication process.
- If a treating physician does not follow the rules and the carrier is absolved of liability, will the Board make a finding at the same time that the claimant is not responsible for the bill?
12 NYCRR 325-1.25[b] provides in part: "Bills [of providers for treatment of all body parts] submitted in any other format or outside this time requirement [90 days from the last day of the month in which services were rendered, or 90 days from the last day of the month in which the claimant received the final treatment in a continuous course of treatment] shall not be eligible for an award by the Chair under the provision of this Workers' Compensation Law as described herein."
Pursuant to 12 NYCRR § 325-1.23, , the claimant is responsible for the services for the payment of medical costs in cases in which the claimant fails to prosecute a claim for workers' compensation or in the event it is determined by the WCB that the illness or condition for which such service was rendered is not the result of a compensable workers' compensation claim. Additionally, the claimant may become liable rendered in cases where the claim is settled by a Section 32 agreement or in cases in which there is a third party settlement. There is no provision that a claimant is responsible for payment of the treatment when it has been found that the provider improperly billed the carrier and is thus not eligible for an award by the Chair.
- Are hospital-based rehabilitation departments required to use the OT/PT-4 (12/10 version) report forms when billing physical or occupational therapy services?
A hospital based rehabilitation program can bill for physical therapy on the customary hospital billing form, the UB-04.
- Can medical providers provide treatment that is not consistent with the Medical Treatment Guidelines by billing the patient's group health plan or charging the patient directly?
No. The Workers' Compensation Law prohibits medical providers from charging claimants directly or from billing another health insurance plan for any treatment of an injury that is covered by workers' compensation.
- Prior to the Guidelines, thermal treatments were "bundled" and not reimbursed. The Guidelines suggests that this passive treatment is a legitimate treatment. Is this treatment reimbursable?
If the services rendered are consistent with the Guidelines and the appropriate CPT code is listed in the fee schedule for use by the provider, services are reimbursable subject to the assigned RVU and limitations in the fee schedule.
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- What changes have been made to workers' compensation forms?
The MG-2 and MG-2.1 have been revised based on the procedural changes listed above.
- Section C: Provider certifies that the variance request is being submitted within two days of preparation and signing.
- Section C: Provider certifies that he or she does not have a substantially similar request pending and that this request contains additional supporting medical evidence if it is substantially similar to a prior denied request.
- Section E: A checkbox for Granted in Part, Burden of Proof Not Met and Substantially Similar Request Pending or Denied has been added to the Carrier/Employer's Response section.
- When using form C-8.1 to object to payment of a bill based on failure of the provider to meet the criteria for ongoing maintenance care, which reason for the objection should be cited?
The box for Treatment provided was not based on correct application of the Guideline should be checked.
- Which Board forms are used by medical providers to report treatment rendered within the Guidelines?
The C-4 family of forms should be used to report all treatment rendered by physicians, chiropractors and podiatrists. Specific Medical Treatment Guidelines forms are only used if the medical provider is requesting a variance or optional prior approval.
- Which Board form is used for requesting optional prior approval?
Form MG-1 must be used. In addition, form MG-1.1 should be completed and included with an MG-1 if the medical provider is requesting optional prior approval for additional treatment(s) or procedure(s) in the same case.
- Which Board form is used for requesting a variance?
Form MG-2 must be used. In addition, form MG-2.1 should be completed and included with an MG-2 if the medical provider is requesting variance(s) for additional treatment(s) or procedure(s) in the same case.
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- Why are physical and occupational therapists not included in the definition of "Treating Medical Provider" so they cannot request variances or optional prior approvals, while an insurance carrier's medical professional can be a physician assistant, nurse practitioner, or registered professional nurse?
A treating medical provider and an insurance carrier's medical professional perform very different functions. The treating medical provider is responsible for examining, evaluating, diagnosing, and treating claimants, and submitting reports that are evidence of causal relationship and degree of impairment. An insurance carrier's medical professional does not treat or interact with claimants, but reviews medical records and requests from treating physicians to determine if treatment is consistent with the Medical Treatment Guidelines or if the burden of proof has been met to warrant a variance.
Further, WCL §13-a requires claimants to treat with physicians who are authorized by the Chair to treat injured workers. WCL §§13-k, 13-l, and 13-m require claimants to treat with podiatrists, chiropractors, and psychologists who are authorized by the Chair. Physical therapists are not authorized by the Chair to treat claimants, are not authorized under the WCL to diagnose, and their reports are not evidence of degree of disability or causal relationship. WCL §13-b (1) prohibits anyone who is not authorized by the Chair from rendering medical care under the WCL except in six instances. Paragraph (d) of WCL §13-b (1) provides that upon the referral of an authorized physician, which referral may be directive as to treatment, a claimant may receive physical therapy care from a licensed physical therapist. This paragraph requires that the physician maintain records of the claimant's condition and progress, along with records of instruction for treatment. Therefore, before a physical therapist can provide treatment, a physician must order physical therapy and may even specify the modalities to be provided.
When physical therapy is prescribed by the treating medical provider, the Medical Treatment Guidelines require a re-evaluation of the claimant within 2 to 3 weeks of the initial physical therapy visit and then 3 to 4 weeks after the initial re-evaluation. Re-evaluations may be performed by the treating medical provider who ordered the physical therapy or the physical therapist. However, if the physical therapist conducts the re-evaluation, the treatment notes and any report of the re-evaluation must be sent to the treating medical provider. The re-evaluations are important to insure that the claimant is receiving appropriate/adequate medical treatment and can, therefore, maximally participate in the recommended rehabilitation program. When a claimant is proceeding slower than expected, it is important for the physician to have this information, either through personally conducting the re-evaluation or receiving information about the re-evaluation, to insure that any co-morbid medical conditions or any previously unidentified limiting medical problems are identified and actively treated, so that the claimant's ability to participate in rehabilitation is maximized. If a physical therapist could request a variance then such communication and proper diagnosis or identification of other conditions would probably not occur. The physician and physical therapist must act as a team caring for the claimant. The physical therapist's scope of practice does not include the medical reassessment of the claimant and it is the physician's responsibility to insure that the patient receives maximal medical treatment in order to maximize participation in rehabilitation, and ultimately a more rapid return to work. For these reasons physical therapists are not authorized to request variances.
- How is a medical professional defined?
An insurance carrier's medical professional means a physician, registered physician assistant, registered professional nurse, or nurse practitioner licensed in New York State, or the appropriate state where the professional practices, who is employed by an insurance carrier or Special Fund, or has been directly retained by the insurance carrier or Special Fund or is employed by a URAC accredited company retained by the insurance carrier or Special Fund through a contract to review claims and advise the insurance carrier or Special Fund.
- Can an insurance carrier designate a physician authorized by the Chair to conduct independent medical examinations (IME) as an insurance carrier's medical professional?
Yes, an insurance carrier can designate a physician authorized by the Chair to conduct IMEs as its medical professional as long as the physician is either employed by the insurance carrier, or has been directly retained by the insurance carrier to review claims and advise the insurance carrier, or is employed by a URAC accredited company retained by the insurance carrier through a contract to review claims and advise the insurance carrier (12 NYCRR §324.1[c]).
- The procedures allow carriers to employ medical professionals such as nurses to review cases and make approval determinations. These professionals have no standing in the law as medical experts. If the carrier tries to enter their opinion into the record, can it be excluded?
No. The regulations establish a specific procedure for variance requests to be reviewed by a carrier's "medical professional." This term is defined in the regulation and is limited to specific credentialed individuals. The regulation specifically provides for the testimony of the carrier's medical professional, so such evidence will be admissible.
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- Do injured workers have to obtain diagnostic tests from within a diagnostic network for treatment covered under the Medical Treatment Guidelines?
Yes. The Medical Treatment Guidelines have no effect on the insurance carrier's right to direct an injured worker to their diagnostic network.
- If an MRI is consistent with the medical treatment guidelines, must the MRI be performed at a network facility contracted with by the carrier, if the carrier so notifies the claimant?
Yes. The MRI must be performed at a network facility if the carrier has contracted with the network facility and if the carrier properly notifies the claimant pursuant to WCL " 13-a(7).
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- How will injuries to parts of the body not covered by the Medical Treatment Guidelines be handled by carriers?
Work related injuries not covered by the Medical Treatment Guidelines will be handled as they have been prior to the implementation of the Medical Treatment Guidelines. The provider should follow their normal standard of care and the normal Board rules and processes, including authorization of treatment in excess of $1,000.
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- If a claimant resides out of state, and is treated by an out of state medical provider, do the various Medical Treatment Guidelines processes such as pre-authorization, variance requests, and option prior approval apply? Also, do the Medical Treatment Guidelines change the reimbursement methodology for out of state care or the fact that out of state providers are not eligible to request administrative awards or arbitration for unpaid medical bills?
The Medical Treatment Guidelines and the various Guidelines processes do not apply if the claimant both resides out of state and receives medical treatment out of state. The Guidelines do not change the fact that out of state medical providers treating claimants who reside out of state are reimbursed at medical fees customary to the area where the medical services are provided. In addition, the Guidelines do not change the fact that out of state medical providers cannot request administrative awards or arbitration.
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- What if the injured worker changes treating medical providers mid-treatment? Do the timelines and/or number of treatments described in the Guidelines (e.g. physical therapy, chiropractic treatment) start again with the new provider?
No, the treatment performed by a subsequent treating provider would be a continuation of the treatment rendered by the initial provider. It is expected that the subsequent provider will access the initial provider's records for continuity of care. If additional service is required beyond the guidelines, the treating provider will have to justify it through the variance process.
- Do the Medical Treatment Guidelines have any effect on the requirements in the Preferred Provider Organization (PPO)?
No. The Medical Treatment Guidelines have no effect on the insurance carrier's right to require an injured worker to obtain initial treatment from a medical provider participating in the PPO. Medical providers who are participating in a PPO program must also adhere to the Medical Treatment Guidelines.
- What patient history and physical examination findings must medical providers submit with an optional prior approval, variance, or pre-authorization request?
The patient history and physical examination findings that medical providers must submit will depend on the type of injury and the treatment (or proposed treatment) plan.
In general, medical providers should include ALL patient history and physical examination findings that are relevant to the specific injury, diagnosis and treatment plan.
At a minimum, medical providers must provide sufficient patient history and physical examination findings to demonstrate compliance with the medical treatment guidelines. If the patient history and physical findings do not fully document and demonstrate compliance with the medical treatment guidelines, the claim may be denied.
- The Shoulder Injury Medical Treatment Guidelines state that rotator cuff repair for partial thickness rotator cuff tears may be appropriate (no pre-authorization required) if certain subjective, objective and imaging findings are present and if adequate conservative treatment lasting 3-6 months was completed. Therefore, the medical provider MUST ensure the patient history and physical examination clearly documents the required subjective, objective, and imaging findings as well as patient compliance with conservative care all of which are outlined in the guidelines (Shoulder Injury Medical Treatment Guidelines, Table 3).
- When reporting treatment that is consistent with the Guidelines, is a fully completed C-4 report sufficient, or must a provider also include a narrative report?
Unless the New York Workers' Compensation medical fee schedule CPT code or ground rule requires a report, a fully completed C-4 or C-4.2 report is all that is required. However it is recommended that the provider also include office notes to provide a clearer picture of compliance with the Medical Treatment Guidelines.
- Can an injured worker voluntarily pay a medical provider for medical treatment that is not recommended in the Medical Treatment Guidelines?
No. Injured workers cannot pay for medical treatment for workers' compensation injuries or illnesses.
If a chiropractor and physical therapist are providing treatment on the same day which is consistent with the Medical Treatment Guidelines and billing in accordance with the physical medicine and chiropractic fee schedule ground rules, will both practitioners be paid for the services rendered?
If a claimant is treating with a chiropractor and a physical therapist and they both bill modality CPT code(s) that are subject to the RVU per day limitations in the Fee Schedule, both may not be paid. The carrier may object to the bills based on concurrent care. The treating providers may request arbitration, and the arbitration panel will decide if the services rendered were duplicative. If the physical therapist and the chiropractor are providing different treatments, it would not be considered concurrent care.
- How do the Medical Treatment Guidelines affect radiology facilities?
Imaging studies performed to the neck, back, knee, shoulder, and for Carpal Tunnel Syndrome are governed by the Medical Treatment Guidelines. This means that if the study is not consistent with the Guidelines, then the insurance carrier or self-insured employer is not responsible for payment, and the facility cannot bill the claimant. A Diagnostic Testing Network Lookup is available on the WCB website.
- How is a radiologist with a free standing diagnostic facility or a hospital, who relies on the treating physician's history and physical examination, supposed to know if the patient's treating physician has followed the appropriate Medical Treatment Guideline protocols prior to requesting the radiology exam being ordered?
The radiologist may wish to contact the treating medical provider and ask if he or she has ordered the study consistent with the Medical Treatment Guidelines for the body part in question. The radiologist may also contact the insurance carrier or self-insured employer to determine if the imaging study is consistent with the Guidelines.
- The injured worker is referred for physical therapy after a back injury. Physical therapy is provided for three weeks and the patient makes minimal progress. Physical therapy is stopped and the doctor prescribes pain medication. The acute pain begins to subside. Diagnostic test results are negative and surgery is not indicated. The injured worker is referred back to physical therapy. This time the patient does start to improve with physical therapy. Does the first 3 weeks of physical therapy count towards the recommended time frame in the Guidelines or may the therapist start over as if it is a new case?
In this scenario where the injured worker returns to physical therapy after having originally been discharged for lack of progress, the therapist should treat as if the first three weeks "did count" toward the anticipated timeframe, and have the treating medical provider request a variance if it is expected that the patient will need physical therapy beyond the maximum recommendation in the Medical Treatment Guidelines. The treating medical provider must submit documentation of the patient's objective functional improvement with the variance request.
- Can an IME deny care if a claimant fails to show improvement while receiving treatment that is listed as "needed" in the guidelines?
An IME cannot deny care. The IME can evaluate and opine based on that evaluation. It is the carrier who may deny payment for care.
Care is not listed "as needed" in the Medical Treatment Guidelines. The Medical Treatment Guidelines contain recommendations that are the mandatory standard of care for injured workers for the body parts covered by the Medical Treatment Guidelines. An IME may opine on whether the care requested is consistent with the Medical Treatment Guidelines recommendations. This means that the care must comply with the Medical Treatment Guidelines recommendations and General Principles. If a patient fails to demonstrate a positive response to treatment, defined in the General Principles as functional gains which can be objectively measured, treatment that is continued will not be consistent with the Medical Treatment Guidelines. If asked to opine on this matter, an IME may state that the care requested was not consistent with the Medical Treatment Guidelines.
- As follow-up to the case study presented at the CLE course, is a course of physical therapy necessary before an MRI can performed?
Based on the facts in the case study and according to the Knee Medical Treatment Guidelines, it is not necessary to receive physical therapy prior to ordering an MRI of the knee.
- 12. If a patient's complaints have resolved and the physical examination by the physician similarly shows a resolution of previous findings, do the Medical Treatment Guidelines apply?
If the claimant's symptoms and objective findings have resolved, then no further care may be indicated for that specific medical problem. However, in the event of an exacerbation, treatment would be performed consistent with the Medical Treatment Guidelines.
- Medical treatment of injured workers could be impacted by the Guidelines. Has the Board provided outreach to injured workers regarding the changes?
The Board has developed the publication, "Get the Facts", available on the Board web site.
- For initial visits, the Guidelines seem to disallow routine X-rays except for rare occasions until several visits later. Often orthopedists will want x-rays the first time the patient is seen. If x-rays were taken, how is this allowed or disallowed?
The Guidelines identify clinical history, signs, and symptoms that justify the need for x-rays, and do not recommend them for every new patient, nor for every condition. If the x-rays were taken and did not meet the Guidelines criteria, the carrier would have the right to object to payment.
If a treating medical provider refers a patient for 8 weeks of physical therapy and it is not medically necessary to see the patient for 8 weeks, is the treating medical provider required to see patients for a re-evaluation 2-3 weeks after the initial visit and 3-4 weeks thereafter?
The medical provider should see patients as clinically necessary according to the patient's condition. For patients who are participating in a rehabilitation program, physical or occupational therapists should re-evaluate the patient 2-3 weeks after the initial visit and 3-4 weeks thereafter, document objective functional findings, and report the results to the treating medical provider.
- How do the Medical Treatment Guidelines apply to section 32 agreements?
It depends on how the section 32 agreement is written. If the injured worker does not waive medical care, then the Guidelines will continue to apply to the injured worker's claim. If the agreement does waive the injured worker's rights to future medical benefits, then the injured worker will become responsible for paying for future treatment and the Medical Treatment Guidelines will not apply as the Workers' Compensation Board has no jurisdiction over the claim.
- It appears that the Guidelines allow only radiologists to do the x-rays. Can orthopedists do them as well?
There is no specific reference to x-rays being limited to radiologists in the Medical Treatment Guidelines.
Can a facility named "Standing MRI" or "Stand-up MRI" be used to perform MRI's that a provider requests for a claimant with Medical Treatment Guidelines covered injuries?
Facilities with "Standing MRI" or "Stand-up MRI" as their business/company names may be utilized to perform MRI's provided the facility performs the MRI in a recumbent position.
- Can medical providers provide treatment that is not consistent with the Medical Treatment Guidelines if they do so for free?
No. As discussed above, the Guidelines and the variance process determine whether medical services are necessary. If they are not necessary, they should not be provided.
- In the event an injured worker fails to improve with physical therapy administered in accordance with the Guidelines, and surgery is required, can the injured worker receive the full course of physical therapy as recommended in the Guidelines post operatively?
Yes, however the therapist must re-evaluate the patient 2-3 weeks after the initial visit, and 3-4 weeks thereafter, and demonstrate that the patient is showing functional improvement.
- Is an injured worker entitled to physical or occupational therapy, or chiropractic treatment after December 1, 2010 if the carrier has already filed a C-8.1A, with an IME, objecting to further physical or occupational therapy, or chiropractic treatment as not medically necessary, and filed C-8.1B's for any physical or occupational therapy, or chiropractic treatment provided thereafter, when a decision has not been issued yet resolving the C-8.1A?
No. The C-8.1A form filed prior to December 1, 2010 objecting to future treatment must be resolved by a Law Judge at a hearing. The Judge will determine, on a case by case basis, as to the medical necessity of prior physical or occupational therapy or chiropractic treatment or the application of future physical or occupational therapy or chiropractic treatment. C-8.1B forms filed will be addressed consistently with the decision regarding the C-8.1A form.
- Are providers required to adhere to the Guidelines for No Fault patients?
The Workers' Compensation Board does not have jurisdiction over No-Fault cases. Inquiries regarding No-Fault cases should be directed to the New York State Insurance Department.
- The Medical Treatment Guidelines state it is recommended and preferred that an EMG be performed and interpreted by a physician, Board Certified in Neurology or Physical Medicine and Rehabilitation. Can physical therapists or chiropractors also perform EMG's?
The Medical Treatment Guidelines are evidence based standards of care and best practices for the medical treatment of work related injuries. The recommendation that EMG's be performed and interpreted by a physician, Board Certified in Neurology or Physical Medicine and Rehabilitation are part of the best practices for medical treatment. Electro-diagnostic tests can be highly variable in medical practice, being both patient and operator dependent. The recommendation that only Board Certified physicians perform and interpret these tests is aimed at achieving better consistency and comparability of results. However, if the EMG is performed consistent with the Guidelines, a physical therapist or chiropractor may perform an EMG as allowed under these providers' license and scope of practice. Electro-diagnostic tests, including EMG's, do not stand alone in the diagnosis of any medical condition. The Medical Treatment Guidelines require that the results of any diagnostic test be correlated with clinical findings and interpreted within the specific context of the patient's overall clinical picture.
- If a patient receives home physical therapy prior to outpatient therapy services, do the home therapy visits count towards the amount of physical therapy that is recommended in the Guidelines?
Yes. Physical therapy provided in the home setting would count toward the amount of physical therapy that is recommended in the Guidelines.
- Does MTG apply to claims under the Volunteer Ambulance Workers' Benefit Law and the Volunteer Firefighters' Benefit Law?
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