The 45-day public comment period with respect to Proposed Rule I.D. No. WCB471200013 commenced on November 21, 2012, and expired on January 7, 2013. The Chair and the Workers' Compensation Board (Board) accepted formal written public comments on the proposed rule through January 10, 2013.
The Chair and Board received written comments from two groups: the Business Council of New York State (Business Council) and from the Joint Legislative Task Force of the New York State Chiropractic Association and the New York Chiropractic Council (Chiropractors' Task Force). These comments were reviewed and assessed.
The Business Council objects to the addition of ongoing maintenance care (OMC), including up to 10 chiropractic or physical therapy or occupational visits per year, to the MTG. The Business Council asserts that the regulations allow the "routine use" of maintenance care visits without "appropriate and compelling evidence of such a treatment's efficacy." The Board respectfully disagrees. The ongoing maintenance care section acknowledges that "the current body of scientific evidence does not support the routine use of this intervention." However, the Chair's Medical Advisory Committee, which includes three doctors appointed by the Business Council, determined that maintenance care "may be indicated in certain situations." The maintenance care recommendations provide criteria to identify the patient population that may benefit. OMC is permitted 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. In order to qualify for ongoing maintenance care, the claimant must have chronic pain, reached maximum medical improvement (MMI), have a permanent disability and a decline in functional status without the identified treatment. Furthermore, specific, objective functional goals must be identified, measured and met in order to support the need for ongoing maintenance care. Therefore, OMC is not provided in a routine manner, but rather with requirements that must be met in order to qualify for such care.
The Chiropractors' Task Force requests a revision in the definition of "Insurance carrier or Special Fund's medical professionals" who are permitted to review variance requests to include chiropractors. The medical professional may be required to review variance requests involving any of the medical treatment guidelines. Since chiropractors' scope of practice is limited to the neck and back, they do not have the breadth of medical practice necessary to act as a medical professional for review of all variance requests. Accordingly, the Board will continue to require that a carrier or Special Fund use a physician, physician's assistant, registered professional nurse or nurse practitioner as its medical professional.
The Chiropractors' Task Force suggests that requiring that a variance request be granted by the carrier or Special Fund prior to permitting the requested treatment prolongs disability, pain and suffering. The Board notes that this requirement is not a change from the variance process. The added language is simply a clarification. Variances are used to seek approval for treatment that is outside of or in excess of the MTGs recommendations. Accordingly no treatment outside of or in excess of the MTG may occur until and unless it is approved by the carrier, Special Fund or Board decision. The Board notes that there are time constraints for all parties to assure that variance requests are handled in an expeditious manner.
The Chiropractors' Task Force suggests that medical providers be able to request a variance following completion of ongoing maintenance care treatment. The Chair, in connection with the Medical Advisory Committee, determined that when a claimant has reached maximum medical improvement, an ongoing maintenance program that includes periodic therapy,patient self-management, periodic therapeutic withdrawal, and a self-directed pain management program is appropriate. Variance requests to allow additional passive therapy are not consistent with this recommendation.
The Chiropractors' Task Force submitted several comments concerning what constitutes a substantially similar variance request. The Chiropractic Task Force presents some scenarios and seeks further explanation as to what may constitutes a substantially similar request. After review of these comments, the Board maintains that the plain meaning of "substantially similar" provides a sufficient basis for evaluation and comparison of two or more variance requests. In addition, the regulations provide the additional safeguard of administrative review in the event that it appears that there is not a sufficient basis for the finding that the variance request was substantially similar.
The Chiropractor's Task Force suggests that the regulation should require the carrier to supply a detailed explanation when rejecting a variance request on the basis that the medical provider has not met his or her burden of proof. When requesting a variance, the provider must present basic information showing that the proposed treatment, which is outside of or in excess of the MTGs, is necessary and likely to be effective. Sufficient documentation in support of the variance request is necessary for proper evaluation by the carrier or Special Fund. The responsibility to meet the burden of proof (appropriate medical documentation to support a variance requests) rests with the provider. The Board has developed training which is available on its website as well as a published Frequently Asked Question that provides detailed information as to what documentation is required in order to meet the variance request burden of proof. Of note, the MG-2 "Attending Doctor's Request for Approval of a Variance and Carrier's Response" includes a space for the inclusion of a carrier's/Special Fund's explanation of its basis for the burden of proof denial.
The Chiropractor's Task Force also requests that treating providers should be permitted to seek review of a variance denial. It is well settled that only a claimant, an employer or an insurance carrier has standing to appear in a Worker's Compensation case as to any of the primary issues involved in a case. The relationship between medically necessary treatment and a compensable accident or occupational disease is a primary issue. Therefore, a health care provider has no standing to contest the carrier or Special Fund's denial of a variance or a medical arbitrator's or WCLJ's determination of that issue.
The Chiropractor's Task Force suggests that informal resolution should not be mandatory. The Board has removed the eight day requirement for informal dispute resolution and the informal dispute resolution process is no longer mandatory. This permits the claimant to seek review of a variance denial as soon as it becomes apparent that an informal resolution will not occur. However, the Board encourages the medical provider and carrier/Special Funds to informally resolve disputes concerning variance requests and has required all carriers and Special Funds to identify a contact person for discussion of variance approvals.
The Chiropractor's Task Force suggests that the regulations be modified to permit cross-examination of a medical provider whose variance request has been denied based on failure to meet the burden of proof for such request. A variance request that is denied due to failure to meet the burden of proof means that the medical provider submitting the request failed to provide sufficient documentation or explanation in support of the variance request. Testimony of the provider will not make the variance request sufficient. It is noted that a variance that is denied due to failure to meet the burden of proof may be re-submitted by the provider with proper documentation and written justification.
The Chiropractor's Task Force suggests that the MTG be amended to permit a second course of ongoing maintenance care by a second provider if a first medical provider's ongoing maintenance care was ineffective. As In order to meet the eligibility criteria for maintenance care, the MTG requires a demonstration that the maintenance care has been previously effective for this claimant. In the scenario put forth by the Chiropractor's Task Force the eligibility criteria would not be met. Accordingly, no change has been made to the MTG.
Finally, the Chiropractor's Task Force suggests that term "spinal manipulation" should be changed to "active and passive therapy." The Board notes that the guidelines use the terms PT and OT along with spinal manipulation and are not intended to preclude any qualified provider from using active and passive therapies as a component of a qualified course of ongoing maintenance care. As the medical terms used in the MTG were carefully considered and selected by the Medical Advisory Committee and the Board, the Board has not made this suggested change.
The Regulation that is being adopted contains the following insubstantial changes from the proposed rule published in the November 21, 2012 State Register:
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