---

§ 324.1 Definitions

For purposes of this Subchapter:

• (a) The definitions of the terms in subdivision (a) of section 300.1 of Part 300 of this Chapter are applicable to this Subchapter.
• (b) "Consistent with the Medical Treatment Guidelines" means within the criteria of the Medical Treatment Guidelines and based on a correct application of the Medical Treatment Guidelines.
• (c) "Denial," "deny" or "denies" means a denial, partial grant or partial denial by an insurance carrier or Special Fund of a variance request made pursuant to section 324.3 herein or an optional prior approval request made pursuant to section 324.4 herein.
• (d) "Insurance carrier or Special Fund's medical professional" means a physician, registered physician assistant, registered professional nurse, or nurse practitioner licensed by New York State, or the appropriate state where the professional practices, who is:
  • (1) employed by an insurance carrier or Special Fund; or
  • (2) has been directly retained by the insurance carrier or Special Fund; or
  • (3) 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.
• (e) "Maximum Medical Improvement (MMI)" means a medical judgment that (a) a claimant has recovered from the work injury to the greatest extent that is expected and (b) no further improvement in his or her condition is reasonably expected. The need for palliative or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties.
  A finding of maximum medical improvement is a normal precondition for determining the permanent disability level of a claimant.
• (f) "Medical arbitrator" means the Medical Director of the Board, the Assistant Medical Director of the Board, or a New York licensed physician designated by the Chair or his or her designee.
• (g) "Medical care" means all care, treatment, and other attendance for an injured worker's injury, illness or occupational disease as listed and provided in Workers' Compensation Law Sections 13, 13-b, 13-k, 13-l, and 13-m.
• (h) "Medical Treatment Guidelines" means the treatment guidelines for workers' compensation injuries, illnesses, or occupational diseases to the parts of the body addressed in the guidelines incorporated by reference in subdivision (a) of section 324.2 of this Part.
• (i) "Prescribed method of same day transmission" means (1) facsimile transmission, provided that the receiving party has designated a facsimile number for this purpose to other persons, entities, or the Board; (2) electronic mail (email), provided that the receiving party has designated an electronic mail address for this purpose to other persons, entities, or the Board; or (3) such other means of electronic delivery as the receiving party or the Chair has designated for this purpose to other persons, entities, or the Board
• (j) "Review of records" means the evaluation of a claimant without physical examination, by a medical provider authorized by the Chair to treat claimants or to conduct independent medical examinations or both, based on the review of reports and records, including treatment notes, diagnostic test results, depositions or hearing testimony, exhibits, and other records or reports from medical providers or independent medical examiners or both in the electronic case file maintained by the Board.
• (k) "Special Fund" means any special fund maintained by the Board that is responsible for paying for medical treatment and care of injured workers, including but not limited to, the Special Fund for Reopened Cases created and governed by Workers' Compensation Law Section 25-a and the Uninsured Employers' Fund created and governed by Workers' Compensation Law Section 26-a.
• (l) "Treating Medical Provider" means any physician, podiatrist, chiropractor, or psychologist that is providing treatment and care to an injured worker pursuant to the Workers' Compensation Law.

§ 324.2 Medical treatment guidelines

• (a) Medical Treatment Guidelines. Regardless of the date of accident or date of disablement, treatment of on the job injuries, illnesses, or occupational diseases to a worker's lumbar, thoracic, or cervical spine, shoulder or knee, or carpal tunnel syndrome shall be consistent with the Medical Treatment Guidelines set forth in paragraphs (1) through (5) of this subdivision. The operative Medical Treatment Guidelines shall be the Medical Treatment Guidelines in place on the date on which medical services are rendered. All Treating Medical Providers shall treat all existing and new workers' compensation injuries, illnesses, or occupational diseases, except as provided in section 324.3 of this Part, in accordance with the following:
  • (1) for the lumbar and thoracic spine, the New York Mid and Low Back Injury Medical Treatment Guidelines, Second Edition, January 14, 2013, effective March 1, 2013, which is herein incorporated by reference;
  • (2) for the cervical spine, the New York Neck Injury Medical Treatment Guidelines, Second Edition, January 14, 2013, effective March 1, 2013, which is incorporated herein by reference;
  • (3) for the knee, with the New York Knee Injury Medical Treatment Guidelines, Second Edition, January 14, 2013, effective March 1, 2013, which is incorporated herein by reference;
  • (4) for the shoulder, the New York Shoulder Injury Medical Treatment Guidelines, Second Edition, January 14, 2013 effective March 1, 2013, which is incorporated herein by reference; and,
  • (5) for carpal tunnel syndrome, the New York Carpal Tunnel Syndrome Medical Treatment Guidelines, First Edition, January 14, 2013, effective March 1, 2013, which is incorporated herein by reference.
• (b) Obtaining the medical treatment guidelines. The New York Mid and Low Back Injury Medical Treatment Guidelines, New York Neck Injury Medical Treatment Guidelines, New York Knee Injury Medical Treatment Guidelines, New York Shoulder Injury Medical Treatment Guidelines, and New York Carpal Tunnel Syndrome Medical Treatment Guidelines incorporated by reference herein may be examined at the office of the Department of State, 99 Washington Avenue, Albany, New York, 12231, the Legislative Library, the libraries of the New York State Supreme Court, and the district offices of the Board. Copies may be downloaded from the Board's website or obtained from the Board by submitting a request in writing, with the appropriate fee, identifying the specific guideline requested and the choice of format to Publications, New York State Workers' Compensation Board, 328 State Street, Schnectady, New York 12305-2318. Information about the Medical Treatment Guidelines can be requested by email at GENERAL_INFORMATION@wcb.ny.gov, or by telephone at 1-800-781-2362. The Medical Treatment Guidelines are available on paper or compact disc. A fee of ten dollars will be charged for each guideline requested in paper format, and a fee of five dollars will be charged for a compact disc containing all guidelines requested. Payment of the fee shall be made by check or money order payable to "Chair WCB."
• (c) Limitations. The Medical Treatment Guidelines in subdivision (a) of this section and this Part are not intended to, and were not prepared with the expectation of, establishing a standard for determining professional liability.
• (d) Pre-authorized procedures list.
  • (1) All medical care consistent with the Medical Treatment Guidelines costing more than one thousand dollars is included on the pre-authorized procedures list, except for the medical care set forth in paragraph (2) of this subdivision. Medical care costing more than one thousand dollars included on the pre-authorized procedures list are pre-authorized so Treating Medical Providers are not required to request prior authorization. (2) The following medical care consistent with the Medical Treatment Guidelines costing more than one thousand dollars is not included on the pre-authorized procedures list set forth in paragraph (1) of this subdivision so that prior authorization is required:
    • (i) Lumbar fusion as set forth in E.4 of the New York Mid and Low Back Injury Medical Treatment Guidelines;
    • (ii) Artificial disc replacement as set forth in E.5 of the New York Mid and Low Back Injury Medical Treatment Guidelines, and in E.3 of the New York Neck Injury Medical Treatment Guidelines;
    • (iii) Spinal cord stimulators as set forth in E.8 of the New York Mid and Low Back Injury Medical Treatment Guidelines;
    • (iv) Vertebroplasty as set forth in E.6.a.i. of the New York Mid and Low Back Injury Medical Treatment Guidelines;
    • (v) Kyphoplasty as set forth in E.6.a.i. of the New York Mid and Low Back Injury Medical Treatment Guidelines;
    • (vi) Electrical bone stimulation as set forth in the New York Mid and Low Back Injury Medical Treatment Guidelines and the New York Neck Injury Medical Treatment Guidelines;
    • (vii) Osteochondral autograft as set forth in D.1.f. and Table 4 of the New York Knee Injury Medical Treatment Guidelines;
    • (viii) Autologus chondrocyte implantation as set forth in D.1.f., Table 5, and D.1.g. of the New York Knee Injury Medical Treatment Guidelines;
    • (ix) Meniscal allograft transplantation as set forth in D.6.f., Table 8, and D.7. of the New York Knee Injury Medical Treatment Guidelines; and
    • (x) Knee arthroplasty (total or partial knee joint replacement) as set forth in F.2. and Table 11 of the New York Knee Injury Medical Treatment Guidelines.
  • (3) Notwithstanding that a surgical procedure is consistent with the guidelines, a second or subsequent performance of such surgical procedure shall require prior approval if it is repeated because of the failure or incomplete success of the same surgical procedure performed earlier, and if the Medical Treatment Guidelines do not specifically address multiple procedures.
• (e) Variances from the Medical Treatment Guidelines are permissible only as provided in section 324.3 of this Part.
• (f) Maximum medical improvement shall not preclude the provision of medically necessary care for claimants. Such care shall be medically necessary to maintain function at the maximum medical improvement level or to improve function following an exacerbation of the claimant's condition. Post-maximum medical improvement medical services shall conform to the relevant Medical Treatment Guidelines, except as provided in section 324.3 of this Part.

§ 324.3 Variances

• (a) Treating Medical Providers.
  • (1) 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 request in the format prescribed by the Chair for such purpose. A variance must be requested and granted by the carrier, Special Fund, the Board or order of the Chair 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.
  • (2) The burden of proof to establish that a variance is appropriate for the claimant and medically necessary shall rest on the Treating Medical Provider requesting the variance.
  • (3) The Treating Medical Provider requesting a variance shall submit the request in the format prescribed by the Chair to the insurance carrier or Special Fund, Board, claimant, and the claimant's legal representative, if any, on the same day. A variance request must be submitted within two business days of the date it is prepared and signed. The Treating Medical Provider shall submit the variance request to the insurance carrier or Special Fund and Board by one of the prescribed methods of same day transmission if equipped to do so, otherwise the Treating Medical Provider may send the form by regular mail with a certification that the Treating Medical Provider is not equipped to send and receive the variance request by one of the prescribed methods of same day transmission and the date the variance request was sent to the insurance carrier or Special Fund and Board. The Treating Medical Provider shall either submit at the same time as the variance request or reference on the variance request, if already in the claim file maintained by the Board, the necessary medical documentation to support the variance request. All questions on the variance request prescribed by the Chair must be answered completely, clearly setting forth information that meets the following requirements:
    • (i) for all variances:
      • (a) a medical opinion by the Treating Medical Provider, including the basis for the opinion that the proposed medical care that varies from the Medical Treatment Guidelines is appropriate for the claimant and medically necessary, and
      • (b) a statement that the claimant agrees to the proposed medical care, and
      • (c) an explanation of why alternatives under the Medical Treatment Guidelines are not appropriate or sufficient; and
    • (ii) for appropriate claims:
      • (a) a description of any signs or symptoms which have failed to improve with previous treatments provided in accordance with the Medical Treatment Guidelines; or
      • (b) if the variance involves frequency or duration of a particular treatment, a description of the functional outcomes that, as of the date of the variance request, have continued to demonstrate objective improvement from that treatment and are reasonably expected to further improve with additional treatment.
  • (4) Treating Medical Providers may submit citations or copies of relevant literature published in recognized, peer-reviewed medical journals in support of a variance request.
  • (5) (i) No variance is permitted from the maximum frequency and duration of ongoing maintenance care contained in New York Mid and Low Back Injury Medical Treatment Guidelines Sections D.10(a)(ii) and D.11, New York Neck Injury Medical Treatment Guidelines Sections D.11(d)(ii) and D.12, New York Shoulder Injury Medical Treatment Guidelines Section E.12, New York Knee Injury Medical Treatment Guidelines Section E.9, and New York Carpal Tunnel Syndrome Medical Treatment Guidelines Section E.4.g.
  • (ii) The Treating Medical Provider may render or prescribe treatment in accordance with the ongoing maintenance care guidelines contained in New York Mid and Low Back Injury Medical Treatment Guidelines Sections D.10(a)(ii) and D.11, New York Neck Injury Medical Treatment Guidelines Sections D.11(d)(ii) and D.12, New York Shoulder Injury Medical Treatment Guidelines Section E.12, New York Knee Injury Medical Treatment Guidelines Section E.9, and New York Carpal Tunnel Syndrome Medical Treatment Guidelines Section E.4.g when (A) the Board has made a legal determination that the claimant has a permanent disability, or (B) a medical provider submits a medical opinion evidencing that the claimant has reached maximum medical improvement and has a permanent impairment, in the format prescribed by the Chair for such purpose, and the Board has not yet made a legal determination on maximum medical improvement or permanent disability.
  • (6) If a claim is controverted or the time to controvert the claim has not expired and the Treating Medical Provider needs to request a variance from the Medical Treatment Guidelines, he or she must request such variance from the insurance carrier or Special Fund who would become responsible in the event the claim is established by complying with paragraphs (1) through (4) of this subdivision.
  • (7) Resubmission of a variance request.
    • (i) If a variance request for substantially similar treatment, procedure or test has been previously denied by the carrier or Special Fund, the Treating Medical Provider shall submit the date of such denial and additional documentation or justification in support of a new variance request. A variance request that is substantially similar to any previous request may not be submitted, until the carrier or Special Fund has denied any previous variance request.
    • (ii) In the event that a variance request is submitted before a previous variance request for substantially similar treatment, procedure or test has been denied, the carrier or Special Fund may submit the denial of the subsequent request without a medical opinion by its medical professional, a review of records, or independent medical examination.
    • (iii) In the event that a variance request, following denial of a request for substantially similar treatment, procedure or test , is submitted without additional documentation or justification beyond the prior variance request, the carrier or Special Fund may deny the variance request by specifying that a prior variance request for substantially similar treatment, procedure or test has been denied, and the subsequent variance request does not contain any additional documentation or justification. Such denial may be submitted without a medical opinion by its medical professional, a review of records, or independent medical examination.
• (b) Insurance carriers and Special Fund.
  • (1) Insurance carriers and Special Fund shall designate a qualified employee or employees in its office, if it handles its own claims, or a qualified employee or employees in the office of its representative licensed pursuant to Workers' Compensation Law Section 50 (3-b) or (3-d) as a point of contact for the Board and Treating Medical Providers regarding variance requests. Insurance carriers and Special Fund shall provide the Chair or his or her designee with the name and contact information for the point(s) of contact, including his, her, or their direct telephone number(s), facsimile number(s), and email address(es), within thirty days of the effective date of this paragraph. If the designated point(s) of contact changes at any time for any reason, the insurance carrier or Special Fund shall notify the Chair or his or her designee within ten business days of the change. The list of designated points of contact for each insurance carrier and Special Fund shall be posted on the Board's website.
  • (2) Review by insurance carrier or Special Fund.
    • (i) Without IME or review of records.
      • (a) The insurance carrier or Special Fund shall review the variance request and respond to the variance request in the format prescribed by the Chair within fifteen days of receipt, except as provided in subparagraph (ii) of this paragraph. Receipt is deemed to be the date submitted, if submitted by one of the prescribed methods of same day transmission, or, if sent by regular mail, five business days after the date the Treating Medical Provider requesting the variance certified that the form was sent to the insurance carrier or Special Fund.
      • (b) If the request for a variance was submitted after the medical care was rendered, a medical opinion by the insurance carrier or Special Fund's medical professional, a review of records, or independent medical examination is not required and the insurance carrier or Special Fund may deny the variance request on the basis that it was not requested before the medical care was provided.
      • (c) The insurance carrier or Special Fund may deny a 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 as set forth in subdivision (a) of this Section without review by the insurance carrier or Special Fund's medical professional, a review of records, or an independent medical examination. If the insurance carrier or Special Fund also wishes to obtain a medical opinion, a review of records, or independent medical examination, it must also comply with the timeframes set forth in subparagraph (ii) of this paragraph.
      • (d) When an insurance carrier or Special Fund denies a variance request on the basis that the Treating Medical Provider did not meet the burden of proof, the insurance carrier or Special Fund must also assert any other basis for denial or such basis for denial will be deemed waived.
      • (e) The insurance carrier or Special Fund may deny a request for a variance on the basis that (i) the Treating Medical Provider seeks a variance for a treatment, procedure or test that is substantially similar to a prior variance request from the Treating Medical Provider that has not yet been denied by the carrier or Special Fund; or (ii) that a prior substantially similar variance request has been denied, and the subsequent variance request does not contain any additional documentation or justification to the previous variance request. The carrier or Special Fund may deny the variance request by specifying the basis for the denial. The carrier or Special Fund may submit the denial without a medical opinion by its medical professional, a review of records, or independent medical examination.
      • (f) A denial of the request for a variance for reasons other than those set forth in clauses (b), (c) and (e) of this subparagraph must be reviewed by the insurance carrier or Special Fund's medical professional, if an independent medical examination or review of records is not conducted as set forth in subparagraph (ii) of this paragraph.
    • (ii) Review with IME or review of records.
      • (a) If the carrier or Special Fund wants an independent medical examination conducted of the claimant or a review of records in order to respond to the variance request, it shall notify the Chair and the Treating Medical Provider of this decision in the format prescribed by the Chair within five business days of receipt of the variance request by one of the prescribed methods of same day transmission, except if the Treating Medical Provider has certified he or she is not equipped to send and receive by one of such methods, then by regular mail to the requesting Treating Medical Provider. A final response to the variance request shall be submitted in the format prescribed by the Chair in the same manner as the notice in the preceding sentence within thirty days of receipt of the request. 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 date the Treating Medical Provider requesting the variance certified that the form was sent to the insurance carrier or Special Fund.
      • (b) If the claimant fails to appear without reasonable cause for an independent medical examination scheduled by the insurance carrier or Special Fund in order to respond to a request for a variance, the request for a variance shall be denied. The insurance carrier or Special Fund shall submit the response to the variance request within thirty days of receipt of the request. Receipt is determined as provided in clause (a) of this subparagraph. If the claimant requests review of the denial of the variance request based on his or her failure to appear, such request for review shall be reviewed by the Board in the manner prescribed by the Chair. Such request for review of the denial of the variance shall be submitted in the manner prescribed by the Chair within twenty-one business days of receipt of the insurance carrier or Special Fund's denial by the claimant. If the claimant requests review of the denial of the variance request and it is determined that the failure to appear was for reasonable grounds, the insurance carrier or Special Fund will have thirty days from the date of the filing of the decision to obtain an independent medical examination and provide a further response to the request for a variance.
  • (3) Insurance carrier or Special Fund response to variance request.
    • (i) The variance response shall be in the format prescribed by the Chair and shall clearly state whether the variance has been granted, denied, or partially granted. If a variance request has been partially granted, the variance response shall specify the medical treatment, procedure or test that has been granted.
    • (ii) The variance response shall be submitted by one of the prescribed methods of same day transmission to the Treating Medical Provider who requested the variance, the Board, claimant, claimant's legal representative, if any, or any other parties. However, if the Treating Medical Provider certified he or she is not equipped to send and receive by one of the prescribed methods of same day transmission, and/or if the claimant, claimant's legal representative, if any, or any other party is not capable of receiving the response by one of the prescribed methods of same day transmission or has not provided the insurance carrier or Special Fund with the necessary contact information, the insurance carrier or Special Fund shall send the response to such individual or individuals by regular mail with a certification of the date and to whom the response was sent.
    • (iii) If the insurance carrier or Special Fund denies a variance request, it shall state the basis for the denial in detail and, if for reasons other than those set forth in paragraph (2) (i) (b) or (c) or (2) (ii) (b) of this subdivision, submit with its response the written report of the insurance carrier or Special Fund's medical professional that reviewed the variance request or the review of records, if it has not already been submitted to the Board and to all other parties. The denial shall identify the independent medical examination report or review of records report, if already submitted to the Board, by the document identification number in the electronic case folder and date received by the Board. The insurance carrier or Special Fund may submit citations or copies of relevant literature published in recognized, peer-reviewed medical journals in support of a denial of a variance request.
  • (4) If a claim is controverted or the time to controvert the claim has not expired, and the insurance carrier or Special Fund grants or partially grants a variance request, such grant is limited to the question of appropriateness for the claimant and medical necessity, and it shall not be construed as an admission that the condition for which the variance is requested is compensable and the insurance carrier or Special Fund is not liable for the cost of such treatment unless the claim or condition is established.
  • (5) Prior to submitting the response, the insurance carrier or Special Fund may initially respond orally to the Treating Medical Provider about the variance requested by such provider.
• (c) Request for review of denial of variance. Upon receipt of the denial of the variance request, the claimant or claimant's legal representative, if any, shall consult with the Treating Medical Provider who requested the variance to determine if such variance is still appropriate and medically necessary. If the Treating Medical Provider still believes it is appropriate and medically necessary, the claimant or claimant's legal representative, if any, may request review of the denial of the variance. A request for review of the denial of the variance shall be submitted within twenty-one business days of receipt of the insurance carrier or Special Fund's denial by the claimant. 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 date the insurance carrier or Special Fund certified that the variance response was sent to the claimant or the claimant's legal representative, if any. The request shall be made in the format prescribed by the Chair and provide all information requested, unless the claimant is unrepresented. When a denial is not based on a claimant's failure to appear for an independent medical examination pursuant to subparagraph (ii) of paragraph (2) of subdivision (b) herein and the claimant seeks review of such denial, a represented claimant or such claimant's legal representative shall notify the Chair if he or she requests resolution by an expedited hearing in accordance with paragraph (3) of subdivision (d) of this section simultaneous with requesting review of the insurance carrier or Special Fund's denial of the request for a variance. If a represented claimant or such claimant's legal representative does not notify the Chair of his or her request for an expedited hearing, the request for review of the denial of the variance request will be resolved through the medical arbitration process set forth in paragraph (2) of subdivision (d) of this section. If the request is not received by the Board within twenty-one business days of receipt of the denial, the denial of the request for the variance will be deemed final. If the claimant or claimant's legal representative, if any, is informed or knows that the Treating Medical Provider is trying to informally resolve the denial of the variance request in accordance with subdivision (d) of this section, the claimant or claimant's legal representative shall not request review of the denial until advised that attempts at informal resolution have been unsuccessful or the informal resolution period has expired. If the claimant or claimant's legal representative submits a timely request for review of the denial of the variance, such request will be resolved in accordance with subdivision (d) (2) or (3) of this section. (d) Process for requesting review of denial of variance except denials based on the claimant's failure to appear for an IME.
  • (1) Informal resolution.
    • (i) If the insurance carrier or Special Fund denies the variance request in accordance with subdivision (b) of this section, the Treating Medical Provider who requested the variance may elect to try to resolve the dispute by discussing the variance request directly with the insurance carrier or Special Fund's medical professional prior to the resolution of the dispute through the medical arbitrator process set forth in paragraph (2) of this subdivision or the expedited hearing process set forth in paragraph (3) of this subdivision.
    • (ii) If the dispute is resolved, the insurance carrier or Special Fund confirms the resolution by submitting notice of the resolution in the format prescribed by the Chair for this purpose reflecting the resolution to the Treating Medical Provider, Board, claimant, claimant's legal representative, if any, and to any other parties, by one of the prescribed methods of same day transmission or, if one of the recipients is not equipped to receive the notice of resolution through one of the prescribed methods, by regular mail to such recipient.
    • (iii) The parties shall make every effort to resolve the dispute, however if the discussion fails to resolve the dispute the Treating Medical Provider shall notify the claimant and the claimant's legal representative, if any, that the dispute was not resolved so that the claimant or claimant's legal representative, if any, may request review of the denial of the request for a variance and have the dispute resolved through the medical arbitrator process set forth in paragraph (2) of this subdivision or expedited hearing process set forth in paragraph (3) of this subdivision.
  • (2) Medical arbitrator process.
    • (i) If the claimant or claimant's legal representative requests review of the denial of a variance, the Chair shall order the claim into the medical arbitrator process, when:
      • (a) the Treating Medical Provider and insurance carrier or Special Fund have attempted and failed to resolve the denial of the variance informally; and
      • (b) the claimant or insurance carrier or Special Fund has not requested that the issue be decided by expedited hearing as provided in paragraph (3) of this subdivision.
    • (ii) The request for review, variance request, and denial will be reviewed by the medical arbitrator. Such review will not commence if the Treating Medical Provider and insurance carrier or Special Fund resolve the denial of the variance informally and the insurance carrier or Special Fund confirms the resolution by submitting the notice of resolution in the format prescribed by the Chair for this purpose as provided in paragraph (1) (ii) of this subdivision. The medical arbitrator shall rule on the request for review of the denial of the variance and issue a notice of resolution setting forth the ruling and the basis for such ruling. If the basis for the insurance carrier or Special Fund's denial of the variance request was that the Treating Medical Provider failed to meet the burden of proof that the variance was appropriate for the claimant and medically necessary, and the medical arbitrator rules that the Treating Medical Provider did meet his or her burden of proof, the medical arbitrator shall then immediately rule on whether the variance request is approved or denied. The notice of resolution issued by the medical arbitrator is binding and not appealable under Workers' Compensation Law Section 23.
  • (3) Expedited hearing process.
    • (i) Upon request of a party, the case may be referred for an expedited hearing for review of the denial. A request for referral for an expedited hearing is applicable only to the specific variance denial under review. Subsequent requests for review of a variance denial shall be referred to the medical arbitrator process unless a party requests referral for an expedited hearing.
    • (ii) Claims referred to the expedited hearing process to resolve the request for review of the denial of a variance may be heard by a Workers' Compensation Law Judge designated to hear such issues. Notice of the expedited hearing shall provide that the parties may take the testimony of the claimant's Treating Medical Provider and the insurance carrier or Special Fund's medical professional, independent medical examiner, or records reviewer who wrote the written report upon which the denial of the variance request was based at or prior to the hearing, unless the denial was solely based on the failure of the Treating Medical Provider to meet his or her burden of proof as provided in subdivision (b) (2) (i)(c). If the medical professionals are deposed, transcripts shall be provided to the Board on or before the hearing and within thirty days of the request for the expedited hearing. If the claimant is unrepresented the testimony of claimant's attending physician and the independent medical examiner shall be taken at a hearing. For good cause shown, the Workers' Compensation Law Judge may grant an adjournment if one or both of the medical professionals cannot be deposed and transcripts filed with the Board at or prior to the hearing, or if one or both of the medical professionals cannot appear to testify at the expedited hearing. The Workers' Compensation Law Judge shall issue his or her decision on the request for review of the denial of the variance at the expedited hearing, including the reasons and evidence supporting the decision, and a notice of decision will be sent after the close of the hearing, unless the Workers' Compensation Law Judge determines on the record that there are complex medical issues, in which case he or she will reserve his or her decision and the written decision shall be issued shortly after the expedited hearing. The case shall not be continued for further development of the record except where there are complex medical issues of diagnosis, treatment or causation present and then it shall be continued for no more than thirty days.
  • (4) The claimant and the Treating Medical Provider who requested the variance shall have the burden of proof that such variance is appropriate for the claimant and medically necessary.
  • (5) The Board shall consider relevant literature published in recognized, peer-reviewed medical journals cited by the Treating Medical Provider or the insurance carrier or Special Fund or both, and may consider relevant literature not previously cited, in determining whether a variance is medically necessary, including satisfaction of the relevant requirements in subdivision (a)(3) of this section.
  • (6) If the insurance carrier or Special Fund fails to respond to the variance request, fails to timely deny the variance request in accordance with subdivision (b) of this section, or, except if the basis for the denial is one of the reasons set forth in subdivision (b) (2)(i)(b),(c) or (e) of this section, fails to submit the written report, or identify the report in the electronic case folder, the variance is deemed approved on the ground that such approval was unreasonably withheld and the Chair will issue an order stating that the request is approved. Such order of the Chair is not appealable under Workers' Compensation Law section 23. When a substantially similar variance has been submitted in violation of paragraph (7) of subdivision (a) herein, the failure of the carrier or Special Fund to timely deny such request shall not result in the variance being deemed approved and the Chair is not required to issue an order stating that the request is approved.
  • (7) When the Chair issues an order as provided in paragraph (6) of this subdivision in a claim that is controverted or the time to controvert the claim has not expired, the insurance carrier or Special Fund shall not be responsible for the payment of such medical care until the question of compensability is resolved and then only if that insurance carrier or Special Fund is found liable for the claim.

§ 324.4 Optional prior approval

• (a) Insurance carriers and Special Funds that participate in the optional prior approval process shall designate a qualified employee or employees in its office, if it handles its own claims, or a qualified employee or employees in the office of its representative licensed pursuant to Workers' Compensation Law Section 50 (3-b) and (3-d) as a point of contact for the Board and Treating Medical Providers regarding optional prior approval. Insurance carriers or Special Fund that participate in the optional prior approval process must notify and provide all requested information to the Chair or his or her designee and shall provide the Chair or his or her designee with the name and contact information for the point(s) of contact, including, his, her, or their direct telephone number(s), facsimile number(s), and email address(es), within thirty days of the effective date of this paragraph. An insurance carrier or Special Fund may opt-out of the optional prior approval process by notifying the Chair or his or her designee in writing before final authorization to write workers' compensation insurance, before final authorization to be self-insured, or at least sixty days before the last day of participation. An insurance carrier or Special Fund that has opted-out of this process may opt-in by providing notice to the Chair or his or her designee in writing sixty days prior to beginning participation.
• (b) The Treating Medical Provider has the option of requesting prior approval from the insurance carrier or Special Fund to confirm that the proposed medical care is consistent with the Medical Treatment Guidelines. To request the optional prior approval, the Treating Medical Provider shall submit the optional prior approval request to the insurance carrier or Special Fund and Board by one of the prescribed methods of same day transmission. The optional prior approval request shall be in a format prescribed by the Chair for such purpose. In addition to submitting the optional prior approval request in a format prescribed by the Chair, the Treating Medical Provider may also contact the insurance carrier or Special Fund by telephone.
• (c) The insurance carrier or Special Fund has eight business days from submission of the optional prior approval request to approve or deny the medical care. Any prior approval request must be reviewed by the insurance carrier or Special Fund's medical professional before it may be denied.
  • (1) If the insurance carrier or Special Fund agrees that the medical care for which optional prior approval is requested is consistent with the Medical Treatment Guidelines, it shall respond using the prescribed format and submit the approval to the Treating Medical Provider and the Board by using one of the prescribed methods of same day transmission.
  • (2) If the insurance carrier or Special Fund denies that the medical care for which optional prior approval is requested is consistent with the Medical Treatment Guidelines, it shall respond using the prescribed format, stating the basis for its denial, and submit the denial to the Treating Medical Provider and the Board by using one of the prescribed methods of same day transmission.
  • (3) If the insurance carrier or Special Fund fails to respond to a request for optional prior approval within eight business days, the medical care is deemed approved on the ground that approval was unreasonably withheld and the medical arbitrator will issue an order stating that the request is approved.
• (d) If a claim is controverted or the time to controvert the claim has not expired, and the insurance carrier or Special Fund agrees that the medical care for which optional prior approval is requested is consistent with the Medical Treatment Guidelines, such agreement shall not be construed as an admission that the condition for which the optional prior approval is requested is compensable and the insurance carrier or Special Fund is not liable for the cost of such treatment unless the claim or condition is established.
• (e) If the insurance carrier or Special Fund denies that the medical care for which optional prior approval is requested is consistent with the Medical Treatment Guidelines, the Treating Medical Provider may elect to try to resolve the dispute by discussing the optional prior approval request directly with the insurance carrier or Special Fund's medical professional prior to commencing the review provided in subdivision (f) of this section.
  • (1) If the dispute is resolved, the insurance carrier or Special Fund shall confirm the resolution in the format prescribed by the Chair and shall submit the resolution to the Treating Medical Provider and Board by using one of the prescribed methods of same day transmission.
  • (2) If the discussion fails to resolve the dispute, the Treating Medical Provider may request review of such denial by submitting the request for review in the format prescribed by the Chair by using one of the prescribed methods of same day transmission. The request for review of the denial of the optional prior approval will be reviewed in accordance with subdivision (f) of this Section.
• (f) Whether or not the Treating Medical Provider attempts to informally resolve the denial of the optional prior approval with the insurance carrier or Special Fund as provided in paragraph (1) of subdivision (e), he or she may request review by the medical arbitrator of the denial of optional prior approval within fourteen days of the date of the denial by submission of the request in the format prescribed by the Chair for such purpose. Upon the request of the Treating Medical Provider, the optional prior approval request and denial will be reviewed by a medical arbitrator. The medical arbitrator shall rule on whether the medical care is consistent with the Medical Treatment Guidelines and issue a notice of resolution setting forth the ruling and the basis for such ruling within eight business days of receipt of the request for review by the Board. Such notice of resolution is binding and not appealable under Workers' Compensation Law Section 23. This notice of resolution does not preclude, where applicable, a subsequent request for a variance as provided in section 324.3 of this Part.
• (g) An insurance carrier or Special Fund shall not dispute a bill for medical care on the basis that it was not consistent with the Medical Treatment Guidelines if it has approved a request for optional prior approval for such medical care or the medical arbitrator has issued a notice of resolution approving the medical care.
• (h) When the medical arbitrator issues a resolution as provided in subdivisions (b)(3) and (e) of this section in a claim that has been controverted or the time to controvert the claim has not expired, the insurance carrier or Special Fund shall not be responsible for the payment of such services until the question of compensability is resolved and then only if the claim or condition is established.

§ 324.5 Conditions, treatments, or diagnostic tests not addressed by medical treatment guidelines

If the Medical Treatment Guidelines do not address a condition, treatment or diagnostic test for a part of the body covered by the Medical Treatment Guidelines, then the factors in subdivision (a) (3) of section 324.3 of this Part and relevant medical literature as described in subdivision (a) (4) of section 324.3 of this Part shall be used to determine whether the insurance carrier or Special Fund shall be obligated or not obligated to pay for the medical care at issue.

§ 324.6 Incorporation into policies, procedures and practices

Insurance carriers and Special Funds shall incorporate the Medical Treatment Guidelines set forth in section 324.2 (a) and (b) and the provisions in sections 324.3(b), 324.4(a), and 324.5 of this Part, and section 325-1.25 of Subpart 325-1 into their policies, procedures, and practices so that their utilization review and management criteria are consistent with the Medical Treatment Guidelines. Insurance carriers and Special Funds shall have certified to the Chair within one hundred and twenty days of the effective date of this Part that they have done so and shall re-certify to the incorporation of the Medical Treatment Guidelines and the regulatory provisions cited in the previous sentence within sixty days of any changes to their policies, procedures, and practices. The Chair and Department of Insurance will conduct audits of insurance carriers and Special Funds with respect to the accuracy of the certifications. Each insurance carrier shall submit the policies and procedures incorporating the Medical Treatment Guidelines incorporated by reference in section 324.2 (a) and (b) and the provisions in sections 324.3 (b), 324.4 (a), and 324.5 of this Part, and section 325-1.25 of Subpart 325-1 to the Chair or Department of Insurance in connection with such audit.