Jan 11 2021

New York State Workers’ Compensation Board: Regulatory Changes for 2021

New Medical Treatment Guidelines

Since their effective rollout on December 1, 2010, the Guidelines have served to regulate treatment to the back, neck, shoulders, and knees for compensable claims in New York State.  In the intervening years, the Board has expanded the influence of the Guidelines to treatment rendered out-of-state, and the Guidelines have been expanded to address the specific diagnosis of carpal tunnel syndrome, and prescription medication (per the Non-Acute Pain Guidelines).

Effective in the Second Quarter of 2021, the Guidelines will include additional sites:

  • Ankle & Foot
  • Elbows
  • Hand/Wrist/Forearm (replacing the Carpal Tunnel Syndrome Guidelines)
  • Major Depressive Disorder
  • Work-Related Asthma
  • Occupational Interstitial Lung Disease
  • PTSD and Acute Stress Disorder

The advantage is that the Guidelines themselves serve to limit the treatment available for these sites, unless the medical providers can demonstrate reasons to vary from the Guidelines.  However, as is the case with other Guideline sites, IME findings will no longer be deemed acceptable if the IME provider finds that pre-authorized treatment is not warranted.

Effective in the Second Quarter of 2021, treatment to all of these sites is governed by the above Guidelines unless the physicians file Form MG-2, seeking requests to vary from said Guidelines.  If this request is denied, then the Claimant has 21 business days to request review of that denial, either by WCB adjudication or through the Medical Arbitrator. 

That being said, there are no additions to, or subtractions from, the list of Procedures Requiring Pre-Authorization (including lumbar fusion and knee allograft) that actually require the filing of Form C-4AUTH.

However, as set forth below, the procedures by which to seek variances from the Guidelines, as well as treatment over $1,000.00, will also be changing in 2021.

Form CMS-1500

Effective July 1, 2021, instead of submitting Forms C-4.0, C-4.2, and C-4.3, medical providers will need to remit their bills on Form CMS-1500, as is already the case with medical bills for other insurers, such as health insurance or no-fault.  Since the forms themselves do not provide a space to indicate degree of disability, the providers must also attach the actual medical reports themselves, which must indicate degree of disability.

The providers will still have 120 days from the date of treatment to submit the bills, and the carriers will still have 45 days from the filing of the bill in which to pay them, deny them, or indicate valuation objections, with the EOB attached, if applicable.  Also, effective July 1, 2021, carriers must have the capability to accept all forms electronically.

The Board has now set forth Claim Adjustment Reason Codes (CARC’s) as grounds for denial of bills submitted on Form CMS-1500.  These include defenses not currently available, specifically:

  • The claim has been disallowed;
  • Prior authorization not granted for continuous treatment costing over $1,000.00
  • Prior authorization not granted for MTG procedure requiring pre-authorization
  • Treatment provided was for an established site, but was not causally related to the compensable injury.
  • Treatment provided to a site that is the subject of several claims, and the injury is not related to the claim at issue.
  • Medical Report Was Incomplete
  • Insufficient Documentation Provided
  • Exacerbation – record incomplete, or treatment exceeds MTG’s

The carrier must still use Forms C-8.1 for legal objections and C-8.4 for valuation objections, respectively, and the 45-day deadline remains.  Both forms will be updated for carriers to select the appropriate CARC’s.  Should no denial be issued, and the deadline expire, the providers must still file Form HP-1 electronically to have the Medical Director address the issue.  In the next few months, the forum to address disputed bills will also become electronic.

On Board

Gradually, and beginning in Spring 2021, the procedure for submitting medical bills and Prior Authorization Requests (PAR) will be upgraded through a new electronic platform called OnBoard, which will use essentially the same technology as the Drug Formulary.

At this time, there are proposed amendments to the WCB regulations, which will become effective in the near future, which will govern medical treatment requests using these forms:

  • PAR Confirmatory (replacing Form MG-1);
  • PAR Variance (replacing Form MG-2);
  • PAR Special Services (replacing Form C-4AUTH as to the 12 Procedures requiring pre-authorization);
  • PAR Non-MTG Over $1,000.00 (replacing Form C-4AUTH as to non-MTG Procedures (that are not MTG as of 01/01/21) costing over $1,000.00); Per proposed amendment, treatment costing over $1,000.00 that is set forth in the MTG’s would be deemed pre-authorized. 
  • PAR Non-MTG Under $1,000.00 (replacing MG-1 and C-4AUTH).  If the treatment in question is not governed by the MTG’s, and it is less than $1,000.00, the provider would have the option of submitting this PAR to the carrier for confirmation, similar to what is currently done now with Form MG-1.

Forms C-4AUTH, MG-1, and MG-2 will be replaced with the above electronic forms, which will be submitted to the Board and carrier simultaneously.  This will eliminate the issue that arises when bills are submitted only to the Board, but not the carrier, or vice versa.  This will also eliminate the issue that now exists during the COVID pandemic when providers fax, but do not email, Forms C-4AUTH and MG-2 to the carrier, rendering them defective.

In effect, the current requirements that Forms C-4AUTH be submitted the same day that they are certified, and that Forms MG-2 be submitted within two business days of the date that they are certified, will be repealed, since the electronic submission will allow for simultaneous submission of all bills and PAR’s to the Board and the carrier/TPA.

There will now be a three-tier review system, exactly like the current Drug Formulary, through which carriers can evaluate PAR’s.  The deadlines now being used for responses to and review of Forms MG-2 and C-4AUTH remain in effect for the PAR’s that will replace them.

Moreover, should a deadline be missed, the Board will automatically generate an Order of the Chair.  While it is possible to object to these Orders at this time, it appears that this option will become unavailable.

As also stated above, effective July 1, 2021, carriers must arrange to possess the electronic capability to accept the Forms CMS-1500 from the medical providers, as well as the PAR Forms.

Unfortunately, however, while claimants benefit from the Expanded Provider Law that was enacted at the beginning of 2020, carriers do not.  Claimants may receive treatment from physical therapists, nurse practitioners, and other medical providers who are not physicians, but carriers can only have PAR’s reviewed, and IME’s conducted, by physicians, since the regulation defines the medical provider retained by the carrier as a “Carrier’s Physician.” 

Conclusion

Notwithstanding the challenging nature of workers’ compensation, the Board’s technological advances in the past few years are very respectable.  The anticipated upgrades in the regulation of authorization of medical treatment and payment of medical expenses will certainly streamline the system, and possibly facilitate the entire process.

However, now that more injuries and treatments have been deemed pre-authorized, we anticipate that many challenges to medical treatment requests or expenses may be unsuccessful.  In any event, now that a better mode of transmission is becoming available, the likelihood of the requests and bills being timely received, and available for review, is much greater.

Unfortunately, OnBoard will not be available for review by carrier’s attorneys during its initial limited rollout.  However, we will be able to review all documents once they are uploaded to E-Case, and address what actions should be taken within the appropriate deadlines.  Moreover, it is expected that OnBoard will replace E-Case in 2023.  Moreover, the Board has stated that any stakeholder that already has an E-Case account will have it automatically transferred to an OnBoard account.

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