By Theodore Ronca, Esq., Aquebogue, NY, and Rebecca A. Shafer, Esq., Hartford, CT
There are two sets of workers compensation guidelines set to be used in NY. We will discuss the two sets of guidelines, their impact on workers compensation payments and litigation. (Editor’s Note: Part II is set forth below. To read Part I of this article, click here.)
On December 1, 2010, the state of New York will have a whole new way for doctors to treat employees who have suffered certain types of work related injuries. The New York's Workers Compensation Board in an effort to ensure fair and equitable treatment for all injured workers has adopted for specific injuries comprehensive medical treatment guidelines. One of the principal advantages to guidelines when implemented by states is to provide a mechanism by which treatment can be provided quickly without need for advance approval; it also provides a mechanism to promptly pay providers. One result will be that RNs and MDs will be much more involved at the carrier level reviewing medical documents and commenting on whether or not they are following the guidelines.
These new guidelines are not expected to result in much additional litigation principally because there is not as much money involved in treatment guidelines as there is in settlement guidelines. Medical treatment questions are reviewed by a medical arbitration panel which decides if further treatment is warranted or if surgery is indicated. If so, payment is made expeditiously.
The new guidelines are a set of best practices for the medical providers to follow in treatment of work related injuries. They prescribe specific treatments based on evidence-based medicine. The medical providers will have to adhere to the Medical Treatment Guidelines for all medical treatments involving the middle and lower back, the neck, a knee or a shoulder.
There are four separate sets of treatment guidelines, each 70-80 pages in length for each of these body parts. These four body parts account for 60% of all workers comp claims in New York. All carriers, self-insured employers, third party administrators, payers and other stakeholders are required to incorporate the New York guidelines into their operations within 120 days of December 1, 2010. They must certify their on-going compliance thereafter.
Using the guidelines in their current form could be a major hurdle to quickly incorporating them into the workflow thus preparation should be done well in advance. One of the easiest ways to comply with the new requirements may be to purchase support tools from vendors.
The treatment guidelines can be found at:
Evaluation and Proposed Guidelines
Treatment guidelines for medical providers are nothing new. Many other states require a similar approach requiring medical providers to use the Official Disability Guidelines providing for evidence-based medical treatment and disability duration guidelines. Thirty-six states compel the treating doctors to use the American Medical Association Guidelines for the rating of permanent partial disability or permanent total disability.
The new Medical Treatment Guidelines apply to all existing claims with medical treatment on or after December 1, 2010 and will apply to all new claims after December 1st. [The guidelines however do not apply to emergency medical care at the time of the injury, but do apply to all subsequent care and to all non-emergency initial care]. The guidelines apply to all payer types – workers' compensation insurers, self-insured employers both private and municipal government pools, group self-insured trusts, all Special Funds and New York's own State Insurance Fund.
The guidelines only apply to injured employees who live in the State of New York or who receives medical treatment in New York. If your company's location is in New York, but the injured employee both lives and receives medical treatment outside of New York, the medical treatment guidelines do not apply. Out of state treatment is judged by “fair and reasonable for local standards.” If the state has a medical fee schedule that applies that rate will be used. If the treatment was not in the best interests of the employee, the employer could reassign the employee to a more appropriate local facility of the employer’s choice, but that is rarely done.
The development of the new Medical Treatment Guidelines was the result of an effort to improve the New York workers' compensation system where two nearly identical individuals with nearly identical injuries often receive totally different medical care. The difference was due to the medical providers' relationships with plaintiff attorneys – employees represented by attorneys often took much longer to recover from their injuries than employees without attorneys.
Purpose of Treatment Guidelines
The Medical Treatment Guidelines are designed to:
1. Create a uniform standard of medical care for the injured employees
2. Bring about higher quality and faster medical treatment
3. Expedite the return to work for the injured employee (hopefully within 6 months)
4. Create a more desirable medical result for the employee
5. Diminish the number of disagreements between the work comp insurers and the treating doctors over the nature and quality of medical care
6. Decrease the time between medical service and payment to the medical provider
7. Lower overall work comp cost
The new Medical Treatment Guidelines partially remove the requirement that medical procedures exceeding $1,000 have to be preauthorized. If the medical provider is in compliance with the testing and treating guidelines, preauthorization is no longer needed except for the following procedures:
1. Lumbar fusion
2. Artificial disk replacement
5. Electrical bone growth stimulators
6. Spinal cord stimulators
7. Anterior acromioplasty of the shoulder
9. Osteochondral autograft
10. Autologus chrondocyte implantation
11. Meniscal allograft transplantation
12. Knee arthroplasty (total or partial)
13. 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
Even with the changes in preauthorization of treatment, there may be occasions when medical providers are unsure that their interpretation of the guidelines is correct. When this happens, the medical provider can request an optional prior approval, if the insurance company has elected to not to opt out of the prior approval process. The medical provider can determine if the insurance company is a part of the optional prior approval process by contacting the Workers' Compensation Board.
Petitioning for Alternative Treatment
If the medical provider believes the injured employee would benefit by treatment outside of the guidelines, the medical provider can petition the Workers Compensation Board for approval of the alternative treatment. Some of the reasons why the medical provider might want to deviate from the treatment guidelines include:
1. The employee is showing improvement but has not reached the level of recovery necessary within the duration of treatment recognized by the guidelines
2. The employee has other medical conditions that are delaying the employee's recovery
3. The treatment needed by the employee is not covered in the guidelines
4. New or alternative treatment procedures have been developed
If the medical provider proposes a variance from the guidelines, the insurance company has the right to request an independent medical examination of the employee.
Like many state work comp boards, the New York Workers Compensation Board has a love for forms. To request prior approval of their interpretation of a medical procedure, the medical provider will use a form MG-1. If the medical provider wants to request a variance from the treatment guidelines, they will submit form MG-2. The treating MD must fill out this form, so there will be more medical management involvement.
There is an entire family of forms referred to as C-4 forms. For example, if there is a need for medical treatment to be preauthorized, the form C-4 AUTH is required. While the new Medical Treatment Guidelines will improve the medical care the employee's receive, it does not diminish the paperwork. Now, if New York could come up with new guidelines to streamline the processing of forms...well, at least the forms can be filed electronically.
© Copyright 2010 Amaxx Risk Solutions, Inc. Reprinted with permission.