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Summary of Regulatory Impact Statement
Proposed Amendment of Part 324 of 12 NYCRR
(Amendment of the Medical Treatment Guidelines)


  1. Statutory Authority:

    Workers' Compensation Law (WCL) § 117 (1), WCL § 141, WCL § 13, WCL §13-b and WCL § 13-a (5).
  2. Legislative Objectives:

    The purpose of the 12 NYCRR Part 324 (the Medical Treatment Guidelines or MTG) was to create medical guidelines for the treatment of injured workers using the most effective modern diagnostic and treatment techniques.
  3. Needs and Benefits:

    The Guidelines determine the standard of treatment and care for workers' compensation claimants. Carriers are only required to pay for medical care that is consistent with the Guidelines or that has been approved through a variance process. The Guidelines establish criteria for appropriate timing and use of diagnostic testing and medical treatments, control utilization of treatment, and thereby seek to reduce costs. Several years after the development of the initial MTGs, the Advisory Committee began to develop Guidelines for carpal tunnel syndrome (CTS). The Superintendent transmitted the recommended CTS MTG to the Chair in fall 2011. The Chair promptly posted the MTG and sought public comments. The comments were reviewed and changes made where appropriate.

    In addition, the Guidelines for the neck, back, shoulder and knee have been amended to permit 10 chiropractic, physical therapy or occupational therapy visits each year following a determination that the claimant has reached maximum medical improvement (MMI) and has chronic pain.

    Section 324.2(d)(2) has been amended to remove anterior acromioplasty and chondroplasty from the list of procedures that require prior authorization by the payer.

    Section 324.3 has also been amended to prohibit the repeated submission of variance requests by a treating medical provider for substantially similar treatment when an earlier variance request has not yet been denied or without additional information when the earlier substantially similar request has been previously denied.

    Paragraph (3) of subdivision (a) of Section 324.3 has been amended to specifically state that a variance must be submitted within two business days of the preparation of the request.

    Section 324.3 has been amended to remove the eight day requirement for informal resolutions and to direct that requests for review of a denial of a variance request will be directed to medical arbitration unless the claimant or payer requests review by a Workers' Compensation Law Judge.

    In addition, Section 324.3 has been amended to give the Chair discretion to direct the resolution of variance denials based on the claimant's failure to appear for an independent medical examination.

    The Board proposes further changes to Part 324 of 12 NYCRR by modification of the definition of MMI to conform it to the definition developed by the Advisory Committee and incorporated in the Board's 2012 Guidelines for the Determination of Permanent Impairment and Loss of Wage Earning Capacity.

    At subdivision (c) of section 324.1, the proposed amendment adds a definition of "Denial, deny or denies" to include instances when the carrier or Special Fund partially grants or approves only a portion of a variance or request for optional prior approval.

    Throughout the regulation the language has been modified from use of words like "form" and "file" to terms such as "format prescribed by the Chair" and "submit."
  4. Costs:

    The proposed amendments are intended to reduce costs to all parties and the Board, through further streamlining of the process to reduce delays in resolution of disputes and add clarity and guidance in the treatment of injured workers. As with the original Guidelines adopted in 2010, the Board will offer support for this implementation through training. The Guidelines will be available on the Board's website and anyone will be able to download and print them free of charge. If an individual or entity requests a hardcopy of one or more of the guidelines, the cost will be $10.00 per guideline or $50.00 for all five. This charge is to cover the Board's cost in making the copies. The charge for one or more of the Guidelines on a compact disc is $5.00.
  5. Local Government Mandates:

    The rule only imposes a mandate on local governments that are self-insured or that own and/or operate a hospital. The mandates on local governments are the same as those imposed on private self-insured employers, insurance carriers, the State Insurance Fund, third party administrators, medical professionals, private hospitals. Self-insured local governments and those that own and/or operate a hospital will need to comply with the requirements in the rule the same as a private self-insured employer or insurance carrier or private hospital. It is expected that the rule will generate reduced medical costs and therefore lower workers' compensation costs for all employers, including local governments.

    The rule requires that all claimants with injuries, illnesses or occupational diseases to the neck, back, shoulder, and/or knee, and those diagnosed with carpal tunnel syndrome be treated in accordance with the Guidelines adopted and amended by the regulation.
  6. Paperwork Requirements:

    The proposed amendments should significantly reduce the number of variances requested and thus reduce the paperwork associated with those requests. The only additional paperwork requirements are the need to adhere to the Guidelines and to request a variance for treatment that deviates from the Guidelines' recommendations. The forms used to request a variance are already in use, but will be modified slightly.
  7. Duplication:

    The proposed regulation does not duplicate or conflict with any state or federal requirements.
  8. Alternatives:

    Carpal Tunnel Syndrome Guideline. The Advisory Committee to the Superintendent developed and proposed these CTS Guidelines based on the Colorado and Washington state guidelines. The Board could have rejected the proposed guidelines and chosen another state or commercially available guidelines for the treatment of CTS. It did not do so because the Board values the inclusive and collaborative process by which the proposed guidelines were developed and because the Board did not receive any comments that called into question the validity of the proposed guidelines.

    Maintenance Care. The Board could have waited to incorporate new maintenance care guidelines as part of the chronic pain guidelines that are currently in development by the MAC. The Board chose to move forward at this time because there was widespread agreement on the need to allow for limited maintenance care and more than three quarters of existing variance requests involve such treatment. The Board saw no reason to wait when a solution could be adopted at this time.

    Amendments to Part 324. One alternative to amending Part 324 of 12 NYCRR that the Board considered was to take no action. However, that alternative was not compelling because of the various issues that have been present since adoption of the original regulation. While the Board has attempted to correct the issues through communication with stakeholders and internal process, it was ultimately determined that the existing regulations required amendment.

    Under the current regulation, there are disputes regarding the timeliness of the filing of variance requests that occur when a variance is prepared and signed by the treating medical provider during the examination and treatment of a claimant, but the variance request is not submitted until later due to routine medical office practice. After consultation with stakeholders it was determined that the most important objective with respect to timeliness was to ensure that the Board and the carrier or Special Fund are provided with the variance request at the same time. It was determined that a slight delay between the preparation and submission of the variance request did not compromise the quality of the variance or the ability to evaluate the variance. Treating medical providers have communicated that the two business days proposed by the Board in this amendment is ample time to accommodate the minor routine delays between the preparation of the variance and the submission.

    Under the current regulation, the system has been burdened by treating medical providers that repeatedly submit variance requests for medical care, when a prior substantially similar, or identical, request has been denied or is still under review. These duplicate variance requests strain the Board's resources, the resources of carriers and Special Funds, produce delays in the resolution of all requests, and diminish the ability to carefully consider each variance request. The Board carefully considered this issue and has developed an approach in the proposed regulation that will create an expedited process for the denial of resubmitted variances while ensuring that claimants retain the ability to request a variance from the Guidelines when medically necessary.

    Finally, the Board has proposed changes to the regulation that will offer flexibility should the Board create an easy, accessible means for processing of the requests for variances and optional prior approvals electronically via a web portal or some other electronic means. The Board considered not changing the regulation at the present time. However if the Board is able to offer an easily accessible, transparent web portal that will further reduce delays and eliminate disputes concerning timely filings, then no further amendment of this regulation would be necessary before the Board could implement such a change. Furthermore, the recommended changes will not impact the current process.
  9. Federal Standards:

    No federal standards are applicable to this proposed regulation.
  10. Compliance Schedule:

    Participants will be able to comply with the proposed regulation when they take effect on February 1, 2013. The Board will conduct extensive outreach and education to providers, insurance companies, attorneys, Board staff, and others, between now and the effective date to facilitate incorporation of changes and to familiarize all stakeholders with the substantive content of the new and revised Guidelines. The participants will also have time to incorporate the carpal tunnel syndrome Guideline and the changes in the regulations into their policies, procedures and practices. Stakeholders will be given additional time beyond February 1, 2013, to incorporate revised forms into their systems.

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