NYSWCB Hosted Q&A On MTGs

Variance Process

1. During the presentation on variances, the speaker stated that the insurance carrier has 5 business days to notify the Chair that an IME or records review will be obtained, 15 calendar days to respond to the variance request if the insurance carrier does not obtain an IME or records review, and 30 calendar days to respond if the insurance carrier obtains an IME or records review from receipt of the variance request. However, the flow chart included in the materials on page 33 states that it is 15 and 30 business days. The flow chart is not correct. As announced at the start of the ethics presentation, the insurance carrier has either 15 or 30 calendar days to respond to the variance request.
2. If a subpoena must be served at least 20 days prior to the deposition, how can depositions be conducted prior to the expedited hearing which is scheduled within 30 days of the request for review of a denial of a variance? Also, if the insurance carrier fails to exhaust all of its remedies under the regulations, including the enforcement of a subpoena in Supreme Court, will the insurance carrier be barred from seeking to have the Treating Medical Provider's reports precluded? If an insurance carrier denies a request for a variance, especially if it has not waived its right to an expedited hearing, it should begin preparing for such expedited hearing. After the insurance carrier sends it denial to the claimant and the claimant's legal representative, the claimant and his/her legal representative have 21 business days to submit the request for review of the denial. The expedited hearing is not scheduled until the request for review is received by the Board. The time period is short and requires diligence by the insurance carrier. Further, a subpoena is not required to depose the Treating Medical Provider. If an insurance carrier has not exhausted all of its remedies under the Board's regulations, it will not automatically be barred from seeking to preclude the Treating Medical Provider's reports. The determination will be made by the law judge based upon the facts, the actions of the insurance carrier, and the time period within which the deposition had to be completed.
3. When a carrier denies a variance request and an expedited hearing is going to be scheduled, is the WCB going to notify parties when depositions are due, or the date of the hearing, so that the parties will be able to prepare for depositions in timely manner? If yes, how far in advance will this notice be given to parties, and how will notice be given to parties? Also, if an expedited hearing is set for an unrepresented claimant, will parties be notified of when the hearing will take place so that doctors can be notified in advance? If yes, how far in advance will notice be given, and how will notice be given? Carriers who do not waive their right to an Expedited Hearing have 30 calendar days from receipt of the claimant or claimant's legal representative's request for review of the variance denial to submit deposition transcripts or take testimony at the Expedited Hearing. The 30 day time limit begins upon receipt of the request for review, not upon receipt of the Notice of Hearing for an Expedited Hearing.
4. How can a party compel appearance at a deposition of an out of state provider, when a variance is denied by a health care provider? First, the variance can only be denied by a carrier. It is submitted by the health care provider. Second, If the out of state provider is treating a claimant that both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply. If the Medical Treatment Guidelines do not apply, then there is no need to request a variance and there will be no need to depose such provider. However, if the out of state provider is treating a claimant who lives in New York State, the Medical Treatment Guidelines apply. In that case the methods used to depose out of state providers for all other issues should be used. A subpoena is not necessary if the provider agrees to a date and time to be deposed.
5. If an expedited hearing is not held within 30 days before a Law Judge will all other time frames be excused by the Workers' Compensation Board? 12 NYCRR § 324.3[d][3] for denial of a variance and 12 NYCRR § 325-1.4[a][9] for denial of special medical service over $1000 provide that the Chair shall order the claim into the expedited hearing process wherein the Board shall schedule a hearing within 30 days. All time requirements pertaining to the variance and special medical service prior to the scheduling of the hearing must be followed by the parties. All time requirements subsequent to the scheduling of the hearing must be followed by the parties. Notice of the expedited hearing will provide that the parties may take the testimony of the opposing medical witnesses at or prior to the hearing. On the hearing date, if the claimant is represented, the parties shall provide the transcripts of the depositions or present the medical witness for testimony. If the claimant is not represented, the testimony will be taken at the hearing.
6. If a carrier denies a variance request based on the opinion of a non-physician "medical professional," will that opinion be afforded the same weight as the opinion of a claimant's physician, whether at arbitration or hearing? Questions of credibility, reasonableness and weight of medical evidence are for the Board to decide. It is within the province of the Board to resolve conflicts in the medical testimony as well as to determine the reasonableness of and the weight and credibility to be given to such testimony (see Matter of Forrest v Grossman's Lumber, 175 AD2d 498 [1991], lv denied 78 NY2d 862 [1991]).
7. Is a review of a variance request by the insurance carrier's medical professional considered an independent medical examination (IME) or review of records? Also, what how long does the insurance carrier have to respond to the request if the review is performed by its medical professional? Upon receiving a variance request, an insurance carrier has three options for obtaining a medical opinion about such request, which are: 1) an IME; or 2) a review of records; or 3) the insurance carrier's medical professional. Review by the insurance carrier's medical professional is not an IME or a review of records. An IME involves a physical examination of the claimant and must be performed by a examiner authorized by the Chair pursuant to Workers' Compensation Law §§ 13-a (4) (b) and 137 (3)(a). A review of records, as defined in 12 NYCRR §324.1(i), is an evaluation of the medical records, test results, depositions, transcripts, and other records and reports in the Workers' Compensation Board's electronic case folder by a medical provider authorized by the Chair to treat claimants or to conduct IMEs. Review of the insurance carrier's medical professional is new and allows the insurance carrier to use a medical professional it already employs or contracts with to provide utilization review services. Specifically, an insurance carrier's medical professional, as defined in 12 NYCRR §324.1 (c), is a physician, physician's assistant, nurse practitioner, or registered professional nurse licensed by New York or the state where the professional practices who is either: 1) employed by the insurance carrier; 2) has been directly retained by the insurance carrier to review its claims and advise the insurance carrier; or 3) is employed by a URAC accredited company retained by the insurance carrier through a contract to review claims and advise the insurance carrier or Special Fund. If the insurance carrier has a variance request reviewed by its medical professional, it must respond to such request within 15 calendar days of receipt of the request (12 NYCRR §324.3[b][2][i]). If the insurance carrier decides to obtain an IME or review of records to respond to a variance request, it must notify the Chair within 5 business days of such decision and respond within 30 calendar days of receipt of the request (12 NYCRR §324.3[b][2][ii]).
8. When does the 30 day time limit begin for parties that do not waive their right to an Expedited Hearing when the carrier denies the medical provider's request for a variance? Does it begin when the carrier receives the Notice of Hearing for an Expedited Hearing? Carriers who do not waive their right to an Expedited Hearing have 30 calendar days from receipt of the claimant or claimant's legal representative's request for review of the variance denial to submit deposition transcripts or take testimony at the Expedited Hearing. The 30 day time limit begins upon receipt of the request for review, not upon receipt of the Notice of Hearing for an Expedited Hearing.
9. If depositions in a case have already been ordered and are scheduled sometime after the 30 days that apply to a variance hearing, can the parties "fold" the variance issues into those depositions and produce one set of depositions after the 30 day time period? The new regulations specifically provide that if the parties cannot informally resolve the variance dispute and opt out of the medical arbitrator process, an expedited hearing shall be scheduled within 30 days. If medical professionals are deposed, transcripts shall be provided to the Board on or before the hearing. For good cause shown the WCLJ may grant an adjournment if a medical professional cannot be deposed prior to the hearing. So, variance depositions cannot be folded into later depositions as a matter of course.
10. What is the appropriate time allowance for a variance denial expedited hearing? Will it be standardized so that it is the same for every variance hearing statewide? Expedited Hearings for variance denials will be 60 minutes in every hearing part statewide.
11. Will the variance denial expedited hearings be limited to the sole issue of the variance denial? Or will the designated variance WCLJ address other outstanding issues, which may well be pending before another WCLJ? In order to conserve Board resources, at most variance hearings the WCLJ will not address all outstanding issues in the claim.
12. There are at least two outlyng hearing points which are not Customer Service Centers (New City and Allegany) which do not have video capability. How will variance hearings be conducted and scheduled in those locations? Will the variance judge for the district travel to these sites instead of the WCLJ regularly assigned or will these locations be considered exceptions and the variance hearings heard by the judge regularly assigned to these locations and at regular intervals? Variance hearings in places where the Board has no video capability will be conducted in person or by telephone. Legal representatives in those locations may appear either in person at the hearing point or by telephone.
13. If an insurance carrier denies a variance request based upon review by its medical professional, which may be a physician assistant, nurse practitioner, or registered professional nurse, will such medical professional be subject to cross-examination at a deposition or hearing? Yes, the insurance carrier's medical professional is subject to cross-examination at a deposition or hearing (12 NYCRR §324.3[d][3][ii]).
14. What if the claimant's attorney, who is a sole practitioner, is on vacation or out of the office due to injury or illness when the insurance carrier denies a variance request so he or she cannot file a timely request for review of the denial? The claimant or his/her legal representative can file a request for review of a denial of a variance within 21 business days of the receipt of the insurance carrier's denial. 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 insurance carrier certified that the variance response was sent to the claimant and claimant's legal representative (12 NYCRR §324.3[c]). Rule 1.3 of the New York Rules of Professional Conduct requires attorneys to "act with reasonable diligence and promptness in representing a client." 22 NYCRR Part 1200, Rule 1.3. Paragraph (b) of Rule 1.3 states that, "[a] lawyer shall not neglect a legal matter entrusted to the lawyer." The comments to Rule 1.3 issued by the New York State Bar Association advises a sole practitioner to prepare a plan for situations such as an injury or illness that keeps an attorney out of the office, which designates another lawyer to review client files and determine if immediate protective action is needed. A sole practitioner should have such a plan to ensure that no deadlines are missed.
15. Are medical providers permitted to request review of a variance request denial on behalf of the claimant? No. The claimant and/or the claimant's legal representative are the only parties who may request review of a carrier's denial of a variance request.
16. Is there a specific form for the Treating Medical Provider to use to document the claimant's agreement to the treatment that varies from the Medical Treatment Guidelines when submitting a variance request? Yes, the MG-2 Form, Attending Doctor's Request for Approval of Variance and Carrier's Response. In Section C on the first page of the form, there is a certification above the Treating Medical Provider's signature that includes the following statement, "I certify that the claimant understands and agrees to undergo the proposed medical care." A statement signed by the claimant is not required.
17. What is the process for a claimant to file for review from a denial of a variance? Is there a form the claimant must use to request such review? When the claimant is represented by an attorney or licensed representative, the claimant or the legal representative must complete Section F of the Attending Doctor's Request for Approval of Variance and Carrier's Response (MG-2) form and send it to the Board within 21 business days of receipt of the denial of the variance. This section is towards the bottom of the second page of the form. The clamant must: 1) check the box to the left indicating he or she is requesting review of the denial of the variance, 2) choose whether the request for review will be decided by the Medical Arbitrator or at a hearing, and 3) sign and date the form. If the claimant does not have legal representation, the claimant must request review within 21 business days by completing Section F of the MG-2 form, requesting review of the variance denial using the RFA-1 form, or by writing a letter making such request and sending it to the Board.
18. Insurance carriers must send a copy of the response to a variance request to the Treating Medical Provider, Board, claimant, and claimant's attorney. How will the insurance carrier send the response to the claimant by "same day transmission" if the insurance carrier does not have the claimant's email address or fax number? If the insurance carrier does not have the claimant's email address or fax number, the insurance carrier must send the response to the claimant by regular mail with a certification of the date and to whom the response was sent (12 NYCRR § 324.3[b][3][iii]).
19. If a Treating Medical Provider does not have the capability to send the variance request (Form MG-2) to the insurance carrier by one of the methods of same day transmission, so the variance request is sent by regular mail, when does the 5 business days from receipt of the variance request begin to run to notify the Chair that an independent medical examination or review of records will be obtained? When a Treating Medical Provider does not have the equipment to send a variance request to the insurance carrier by one of the methods of same day transmission, the Treating Medical Provider may send it by regular mail with a certification that he/she is not equipped to send and receive the variance request form (MG-2) by one of the methods of same day transmission and the date the form was sent to the insurance carrier and the Board (12 NYCRR §324.3[a][3]). If the variance request is sent by regular mail, receipt is deemed to be five business days after the date the Treating Medical Provider certified the form was sent to the insurance carrier (12 NYCRR "324.3[b][2][ii][a]). Therefore, if the variance request is sent by regular mail because the Treating Medical Provider is not equipped to send it by email, facsimile, or other electronic means, it is deemed received by the insurance carrier five business days after the date the Treating Medical Provider certified he/she mailed it to the insurance carrier.

Optional Prior Approval

1. All carriers and self-insured employers are automatically participants in the Optional Prior Approval program unless the carrier gives the Board written notice prior to December 1, 2010 indicating that the carrier seeks to opt out of the process. Can carriers opt out of the program after December 1, 2010? If so, what are the time frames for doing so? Carriers who have not opted out of the Optional Prior Approval program prior to December 1, 2010, must have their administrator notify the Board through the administrator application on the Board's website, at least 60 days before the last day of participation. See 12 NYCRR § 324.4(a).
2. If a carrier or self-insured employer opts out of the Optional Prior Approval program, does that change any of the current procedures it would use to determine whether or not to authorize treatment or a test? The Optional Prior Approval program is designed to give a level of confidence to Medical Providers who may not be comfortable with the Medical Treatment Guidelines. Every procedure that a medical provider may request using the Optional Prior Approval process is already authorized under the Guidelines. The program is optional for the medical provider because any procedure covered by the Optional Prior Approval program is already authorized.
   
   Medical providers may provide treatment to claimants and submit bills to carriers for any treatment or testing authorized by the Guidelines. If the carrier denies payment of a bill for a treatment or test authorized by the Guidelines, the medical provider may seek an administrative award directing the carrier to pay the bill.
3. If a carrier has opted out of the Optional Prior Approval program, will the Board provide a response to a MG-1 request verifying that the treatment is within the MTG? If yes, will the same time frame apply? If no, what does the Board recommend for providers who wish to obtain prior approval in situations where the carrier has opted out of the program? If a carrier has opted out of the Optional Prior Approval program, the Board will not respond to MG-1 requests submitted by the claimant's medical provider. Medical providers are encouraged to treat the claimant in accordance with the Medical Treatment Guidelines and submit timely bills to the carrier or self-insured employer. Medical providers may also reach out to the carrier informally to request written authorization for treatment covered by the Medical Treatment Guidelines.
4. Although an EC-70 (Medical Arbitrator's Decision) is not subject to appeal under Section 23, can it be challenged with an Article 78 proceeding? Under the Medical Treatment Guidelines regulations it is possible for the Medical Arbitrator to make variance decisions and optional prior approval decisions. This will only happen if both parties agree to this process and the regulations specifically provide decisions made by the medical arbitrator are binding and not appealable under WCL § 23. The Board cannot give legal advice with respect to whether such decisions are subject to a challenge pursuant to CPLR Article 78. The new regulations do not change the CPLR, so whether the Medical Arbitrator's decisions can be challenged by an Article 78 proceeding will be governed by existing law.

Pre-Authorization – (C-4 Auth)

1. For injuries not currently covered under the MTG does the C-4 Auth process still apply? Yes. WCL § 13-a(5) provides that medical services costing more than $1000 to be valid and enforceable must be authorized by the Board or carrier. Any denial of such medical service must be within 30 calendar days from receipt of the request and "must be based on a conflicting second opinion rendered by a physician authorized by the board."
   
   All treatment within the Medical Treatment Guidelines (Guidelines) for the mid and low back, neck, knee, and shoulder and based upon a correct application of the Guidelines are pre-authorized and do not need to go through the C-4AUTH process except for the following 13 procedures: lumbar fusion, artificial disc replacement, spinal cord stimulators, vertebroplasty, kyphoplasty, electrical bone stimulation, anterior acromioplasty, chondroplasty, osteochondral autograph, auto chondrocyte implantation, meniscal allograft transplanation, knee arthroplasty, and second or subsequent performance of a surgical procedure because of a failure or incomplete success (12 NYCRR § 324.2[d]). Those 13 procedures involving the mid and low back, neck, knee, and shoulder and procedures costing over $1000 for all other body parts must follow the C-4 AUTH procedures which requires a written response within 30 days and, in cases of a denial, the submission of "a report offering a conflicting opinion from an independent medical examiner, a qualified medical professional …, or, if the report was made upon a review of the records without a physical examination, a physician authorized to treat workers' compensation claimants" (12 NYCRR 325-1.4[a]6]).
2. Does a surgeon need to obtain pre-authorization for repeat surgeries to any body part or only for those body parts covered by the MTG? The prior authorization for repeat surgeries applies to any surgery covered by the 4 MTG (mid and low back, neck, shoulder, knee). For surgery to body parts not covered by the MTG and costing more than $1000, pre-authorization is required.

Narcotics

1. Will claimants on long term narcotics and other pain medications have their medications discontinued because of the recommendations in the MTG? No. Claimants who have been receiving long term narcotics and/or other pain medications prior to December 1, 2010 should continue to have their prescriptions paid for by carriers and filled by pharmacies. The MTG allow for the use of pain medication beyond the maximum duration of two weeks. See Subject Number 046-457 dated December 1, 2010.

Out of State

1. If a claimant resides out of state, and is treated by an out of state medical provider, do the various Medical Treatment Guidelines processes such as pre-authorization, variance requests, and option prior approval apply? Also, do the Medical Treatment Guidelines change the reimbursement methodology for out of state care or the fact that out of state providers are not eligible to request administrative awards or arbitration for unpaid medical bills? The Medical Treatment Guidelines and the various Guidelines processes do not apply if the claimant both resides out of state and receives medical treatment out of state. The Guidelines do not change the fact that out of state medical providers treating claimants who reside out of state are reimbursed at medical fees customary to the area where the medical services are provided. In addition, the Guidelines do not change the fact that out of state medical providers cannot request administrative awards or arbitration.
2. Are the guidelines applicable to out-of-state care? If the injured worker either lives or is treated in New York State, the Medical Treatment Guidelines apply. If the injured worker both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply.

Carriers/TPA

1. Can you please clarify if the carrier administrator and the carrier contact person is the same and, if not, provide the difference between the two. The carrier administrator is the person who has the authority to opt the carrier out of the Optional Prior Approval process, waive its right to expedited hearings, certify that the carrier has implemented Medical Treatment Guidelines into its policies, practices and procedures and provide designated contact information for the Variance, Optional Prior Approval and Pre-Authorization processes. The administrator has a user id and password to log into the administrator functions on the Board's web site.
   
   The carrier administrator can also be the contacts for the various Medical Treatment Guidelines processes, but does not necessarily have to be.
2. If a TPA works with several carriers does the TPA assign an administrator and contact person for each carrier (or under the TPA name)? Can there be two people assigned, one being a back up person? The insurance carrier should designate a representative of its organization as the administrator with its Board assigned "W" number on the registration form, and designate the third party administrator contacts in the designated contact(s) fields on the form. The name of the third party administrator can be identified in the District/Region/Unit field in the designated contact section of the registration form. The administrator can add multiple third party administrator contacts as part of the registration process.
3. If a carrier of record sends its claims to several different third party administrators, can its third party administrators differ regarding the opt-in/out procedure, or does the carrier bind its administrators? If the carrier binds its administrators, what happens when two carriers send work to the same administrator and they have different opinions on opting out? The insurance carrier must make the decision whether to opt in or out of the optional prior approval process. A carrier may not designate one TPA who is opting in and another TPA who is opting out.
4. How can a medical provider identify a third party administrator by checking the Board website when requesting prior approvals or variances? This information is available on the Board web site if the insurance carrier administrator has identified the name of the third party administrator and the contacts for that TPA in the designated contact sections of the carrier registration form.
5. Can a third party administrators (TPA) register the contact person for insurance carriers who are its clients using the TPA's "T" number? No. It is insurance carriers and self-insured employers who must designate a contact person, the information must be supplied for each separate insurance carrier under the insurance carrier's "W" number.
6. What is the e-mail and contact should an employer want to change contact for Pre-Authorizations or Variance or Opt out? Also, do self- insured employers or a TPA for the self insured employer complete the "Medical Treatment Guidelines Carrier Registration? The insurance carrier or self-insured employer should be the one to designate a representative of its organization as the administrator with its Board assigned "W" number on the registration form. The carrier or self-insured employer can designate the third party administrator contacts in the designated contact(s) fields on the form. The name of the third part administrator can be identified in the District/Region/Unit field in the designated contact section of the registration form. The carrier administrator receives a user name and password and can modify the administrator or the contact information at any time.
7. Does the TPA assign its own administrator and medical professional? The insurance carrier or self-insured employer should be the one to designate a representative of its organization as the administrator with its Board assigned "W" number on the registration form. The carrier or self-insured employer can designate the third party administrator contacts in the designated contact(s) fields on the form. The name of the third party administrator can be identified in the District/Region/Unit field in the designated contact section of the registration form. The TPA can designate its own medical professional, which does not have to be reported to the Board by the carrier or self-insured employer.
8. Can an adjuster approve treatment or does it need to be reviewed by a medical professional? An adjuster can approve treatment; however, a denial must be made by a medical professional.

Billing

1. If a treating physician does not follow the rules and the carrier is absolved of liability, will the Board make a finding at the same time that the claimant is not responsible for the bill? 12 NYCRR 325-1.25[b] provides in part: "Bills [of providers for treatment of all body parts] submitted in any other format or outside this time requirement [90 days from the last day of the month in which services were rendered, or 90 days from the last day of the month in which the claimant received the final treatment in a continuous course of treatment] shall not be eligible for an award by the Chair under the provision of this Workers' Compensation Law as described herein."
   
   Pursuant to 12 NYCRR § 325-1.23, , the claimant is responsible for the payment of medical costs in cases in which the claimant fails to prosecute a claim for workers' compensation or in the event it is determined by the WCB that the illness or condition for which such service was rendered is not the result of a compensable workers' compensation claim. Additionally, the claimant may become liable for the services rendered in cases where the claim is settled by a Section 32 agreement or in cases in which there is a third party settlement. There is no provision that a claimant is responsible for payment of the treatment when it has been found that the provider improperly billed the carrier and is thus not eligible for an award by the Chair
2. At the program put on by the New York State Society of Orthopaedic Surgeons, Inc. it was mentioned that hospital-based rehabilitation departments do not need to use the traditional OT/PT4 (12/10) forms because they may submit the "regular" forms. Do you have any information as to which "regular" forms they were referring? A hospital based rehabilitation program can bill for physical therapy on the customary hospital billing form, the UB-04.

Attorney Fees

1. Will claimant's attorneys be awarded fees for their appearance and representation at variance hearings? As there is likely to be no awards at such hearings and there will be undoubtedly be cases where the only issue is medical treatment w/o the possibility of further awards, must there be a pool to which the attorney lien can attach or will the carriers be required to pay an attorney's fee even where there is no money moving? If fees will be permitted, what are the boundaries as to what fees can be awarded? The Medical Treatment Guidelines did not amend or change WCL § 24 in any fashion. The present law and rules with respect to the awarding of attorneys' fees apply.

Medical Professionals

1. Why are physical and occupational therapists not included in the definition of "Treating Medical Provider" so they cannot request variances or optional prior approvals, while an insurance carrier's medical professional can be a physician assistant, nurse practitioner, or registered professional nurse? A treating medical provider and an insurance carrier's medical professional perform very different functions. The treating medical provider is responsible for examining, evaluating, diagnosing, and treating claimants, and submitting reports that are evidence of causal relationship and degree of impairment. An insurance carrier's medical professional does not treat or interact with claimants, but reviews medical records and requests from treating physicians to determine if treatment is consistent with the Medical Treatment Guidelines or if the burden of proof has been met to warrant a variance.
   
   Further, WCL §13-a requires claimants to treat with physicians who are authorized by the Chair to treat injured workers. WCL §§13-k, 13-l, and 13-m require claimants to treat with podiatrists, chiropractors, and psychologists who are authorized by the Chair. Physical therapists are not authorized by the Chair to treat claimants, are not authorized under the WCL to diagnose, and their reports are not evidence of degree of disability or causal relationship. WCL §13-b (1) prohibits anyone who is not authorized by the Chair from rendering medical care under the WCL except in six instances. Paragraph (d) of WCL §13-b (1) provides that upon the referral of an authorized physician, which referral may be directive as to treatment, a claimant may receive physical therapy care from a licensed physical therapist. This paragraph requires that the physician maintain records of the claimant's condition and progress, along with records of instruction for treatment. Therefore, before a physical therapist can provide treatment, a physician must order physical therapy and may even specify the modalities to be provided.
   
   When physical therapy is prescribed by the treating medical provider, the Medical Treatment Guidelines require a re-evaluation of the claimant within 2 to 3 weeks of the initial physical therapy visit and then 3 to 4 weeks after the initial re-evaluation. Re-evaluations may be performed by the treating medical provider that ordered the physical therapy or the physical therapist. However, if the physical therapist conducts the re-evaluation, the treatment notes and any report of the re-evaluation must be sent to the treating medical provider. The re-evaluations are important to insure that the claimant is receiving appropriate/adequate medical treatment and can, therefore, maximally participate in the recommended rehabilitation program. When a claimant is proceeding slower than expected, it is important for the physician to have this information, either through personally conducting the re-evaluation or receiving information about the re-evaluation, to insure that any co-morbid medical conditions or any previously unidentified limiting medical problems are identified and actively treated, so that the claimant's ability to participate in rehabilitation is maximized. If a physical therapist could request a variance then such communication and proper diagnosis or identification of other conditions would probably not occur. The physician and physical therapist must act as a team caring for the claimant. The physical therapist's scope of practice does not include the medical reassessment of the claimant and it is the physician's responsibility to insure that the patient receives maximal medical treatment in order to maximize participation in rehabilitation, and ultimately a more rapid return to work. For these reasons physical therapists are not authorized to request variances.
2. Can an insurance carrier designate a physician authorized by the Chair to conduct independent medical examinations (IME) as an insurance carrier's medical professional? Yes, an insurance carrier can designate a physician authorized by the Chair to conduct IMEs as its medical professional as long as the physician is either employed by the insurance carrier, or has been directly retained by the insurance carrier to review claims and advise the insurance carrier, or is employed by a URAC accredited company retained by the insurance carrier through a contract to review claims and advise the insurance carrier (12 NYCRR §324.1[c]).
3. The procedures allow carriers to employ medical professionals such as nurses to review cases and make approval determinations. These professionals have no standing in the law as medical experts. If the carrier tries to enter their opinion into the record, can it be excluded? No. The regulations establish a specific procedure for variance requests to be reviewed by a carrier's "medical professional." This term is defined in the regulation and is limited to specific credentialed individuals. The regulation specifically provides for the testimony of the carrier's medical professional, so such evidence will be admissible.

Diagnostic Networks

1. If a provider does an MRI which is consistent with the treatment Guidelines, and the carrier or self insured employer uses a preferred vendor for the test, how can the carrier or self insured employer make sure that the test is done in one of its preferred facilities if no pre-authorization is needed? The Medical Treatment Guidelines have no effect on the insurance carrier's right to direct an injured worker to its diagnostic network.
2. If an MRI is consistent with the medical treatment guidelines, must the MRI be performed at a network facility contracted with by the carrier, if the carrier so notifies the claimant? Yes. The MRI must be performed at a network facility if the carrier has contracted with the network facility and if the carrier properly notifies the claimant pursuant to WCL " 13-a(7).

Existing Claims

1. At the claims meeting the Board representative stated that treatment after 12/1/10 must follow the guidelines. If the guidelines state 6 weeks of chiropractic treatment, what happens when chiropractic care started two weeks prior to December 1, 2010, and is expected to continue into December? All existing cases will not have the full documentation on objective functional improvement; therefore, medical providers and carriers must follow the general principles and the Treatment Guidelines as if it is a new case. For example, an injured worker has been receiving chiropractic treatment 2 times per month for over a year prior to December 1, 2010. As of December 1, 2010, the Medical Treatment Guidelines apply; therefore, the injured worker must be evaluated at the end of a 3 week period to determine if there is continuing objective functional improvement. If the injured worker shows no objective functional improvement, additional chiropractic treatment would not be consistent with the Medical Treatment Guidelines.
2. If a carrier stipulates to 52 weeks of chiropractic treatment for the rest of claimant's life, do the guidelines apply after December 1st, or does the stipulation overrule the guidelines? Stipulations entered into prior to December 1, 2010, that comply with 12 NYCRR § 300.5 are binding upon the parties. Adoption of the Medical Treatment Guidelines does not invalidate an otherwise valid stipulation.
3. For pre-existing cases where symptomatic care has been rendered, should a variance be requested for a period of time or is a variance required each time before each treatment? Physical therapy and chiropractic treatments must be based on a positive patient response. A request for a variance for a specified period should be based on the medical professional's clinical judgment as to the amount of time anticipated for a continuing positive patient response.
4. Will treatment started before December 1, 2010, and continuing after that date have to comply with the MTG? For treatment rendered prior to and continuing after December 1, 2010, the MTG will apply prospectively.
   
   For physical therapy and chiropractic care, treatment modalities may continue for 3 weeks after December 1, 2010, at which time the medical provider must evaluate whether there has been a positive patient response to the treatment. In the absence

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