(15) for eye disorders, the New York Eye Disorders Medical Treatment Guidelines, first edition, September 28, 2021, effective December 22, 2021, herein incorporated by reference.

(16) for traumatic brain injury, the New York Traumatic Brain Injury Medical Treatment Guidelines, first edition, September 28, 2021, effective December 22, 2021, herein incorporated by reference.

(17) for complex regional pain syndrome, the New York Complex Regional Pain Syndrome Medical Treatment Guidelines, first edition, September 28, effective December 22, 2021, herein incorporated by reference.

1. Statutory Authority:

The Chair of the Workers’ Compensation Board (Chair) is authorized to amend Part 324 of Title 12 NYCRR. Workers’ Compensation Law (WCL) § 117(1) authorizes the Chair to make reasonable regulations consistent with the provisions of the WCL. WCL § 141 authorizes the Chair to enforce all provisions of the chapter and make administrative regulations and orders providing in part for the receipt, indexing, and examining of all notices, claims and reports.

WCL §§ 13 and 13-a establishes employer liability for the provision of medical treatment and care for an injured employee and authorizes the Chair to prepare and establish a schedule for the state of charges and fees for medical treatment and care. Concomitant with an employer’s liability to provide medical treatment and care for an injured employee and the Chair’s authority to establish a medical fee schedule is the need for guidelines setting forth standards of appropriate treatment and care for injured or ill employees.

2. Legislative Objectives:

The Chair of Workers’ Compensation Board is authorized to adopt reasonable rules consistent with and supplemental to the Workers' Compensation Law (Workers' Compensation Law §§ 117[1] and 141). Consistent with Workers' Compensation Law §§ 13 and 13-(5), the Board may establish Medical Treatment Guidelines that set forth what is appropriate medical care and procedures that are pre-authorized (Kigin v. NYS Workers’ Compensation Board, 24 NY3d 459 [2014]).

3. Needs and Benefits:

The purpose of the 12 NYCRR Part 324 (the Medical Treatment Guidelines, Guidelines or MTG) was to create medical guidelines for the treatment of injured workers using the most effective evidence-based modern diagnostic and treatment techniques. The MTGs are standards of medical treatment that serve several important functions within the workers’ compensation system. The Guidelines seek to: 1) set a single standard of medical care for injured workers; 2) expedite quality care for injured workers; 3) improve the medical outcomes for injured workers; 4) speed return to work by injured workers; 5) reduce disputes between payers and medical providers over treatment issues; 6) increase timely payments to medical providers; and 7) reduce overall system costs.

In keeping with the goals of the MTGs, the new Guidelines proposed here address eye disorders, complex regional pain syndrome (CRPS), and traumatic brain injuries (TBIs). The addition of these Guidelines will provide greater clarity and guidance for providers as well as injured workers to reflect the most effective and modern treatment techniques.

4. Costs:

The Guidelines will be available on the Board’s website and anyone will be able to download and print them free of charge. Hard copies may be requested from the Board without a fee.

It should be noted that all parties will be able to use the Guidelines without having to pay a licensing fee.

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.

6. Paperwork:

The proposed amendments to the regulations should not affect paperwork associated with medical treatment. There will be no change to the method and manner of the forms used as a result of this proposal.

7. Duplication:

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

8. Alternatives:

One alternative was to not update the MTGs to add eye injury, CRPS, or TBI MTGs. However, the Board recognizes that the guidelines should be updated to reflect advances in medicine since they were last amended.

9. Federal Standards:

There are no federal standards applicable to this proposed regulation.

10. Compliance Schedule:

Participants will be able to comply with the proposed regulation when they take effect, and the Board expects that the participants will also have time to incorporate the eye injury, CRPS, and TBI Guidelines into their policies, procedures and practices.

1. Effect of rule:

Small businesses and local governments whose only involvement with the workers’ compensation system is that they are employers and are required to have coverage will not be affected by this rule. Small businesses cannot be individually self-insured but must purchase workers’ compensation coverage from the State Insurance Fund or a private insurance carrier authorized to write workers’ compensation insurance in New York or join a group self-insured trust. It is the entity providing coverage for the small employer that must comply with all of the provisions of this rulemaking, not the covered employer. The impact on the State Insurance Fund and all private insurance carriers is not covered in this document as they are not small businesses. Group self-insured trusts and third-party administrators hired by private insurance carriers may be small businesses, and these businesses may be slightly impacted by this regulation. All health practitioners authorized by the Chair to treat have to comply with the Medical Treatment Guidelines. Finally, local governments that own and/or operate a hospital may be affected by this rule.

The political subdivisions that are self-insured for workers' compensation coverage in New York State will have to comply with the provisions of this proposal. Those local governments who are not self-insured and do not own and/or operate a hospital will not be affected by this rule.

2. Compliance requirements:

The proposed rule does not impose new compliance requirements on the small businesses and local governments described above.

Adoption of the eye disorders, complex regional pain syndrome (CRPS) and traumatic brain injury (TBI) MTGs will require all medical providers to adhere to those Guidelines and request prior authorization, should the requested treatment deviate from the treatment recommended in the Guidelines. The process for requesting prior authorization and the forms used to request prior authorization are already in use.

3. Professional services: Small businesses and local governments affected by the rule will not need any new professional services to comply with this rule.

4. Compliance costs:

The proposed amendments are intended to reduce administrative costs to all parties by adding clarity and guidance in the treatment of injured workers. As with the earlier adopted Guidelines, 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. Hard copies may be requested from the Board without a fee.

5. Economic and technological feasibility: It is economically and technologically feasible for small businesses and local governments to comply with the proposed amendments. The proposed amendments do not add any technological requirements or economic challenges from the current Guidelines.

6. Minimizing adverse impact: As stated above, the implementation of the proposed amendments is expected to save money for all participants in the workers’ compensation system by adding eye, CRPS, and TBI Guidelines.

7. Small business and local government participation: The Board has solicited comments for the proposed new MTGs on its website from all participants in the workers’ compensation system, including small businesses and local governments. The proposed amendment is expected to reduce costs and consume fewer resources for all participants in the workers’ compensation system including small businesses and local governments.

The Board does not have a small employer or municipality database, but has sent an electronic communication describing the proposal to 8,066 subscribers for Board updates (health care providers and self-insured employers) on September 28, 2021.

1. Types and estimated numbers of rural areas:

The amendment of section 324.2 of Part 324 of 12 NYCRR will apply to all insurance carriers, the State Insurance Fund self-insured employers, self-insured local governments, local governments that own and/or operate hospitals, attorneys, medical providers, group self-insured trusts, third party administrators and claimants across the state. These individuals and entities exist in all rural areas of the state.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

Adoption of the new Medical Treatment Guidelines (Eye Disorders, Complex Regional Pain Syndrome [CRPS] and Traumatic Brain Injury [TBI]) will require all medical providers to adhere to those Guidelines and request a variance, should the requested treatment deviate from the treatment recommended in the Guidelines. The process for requesting a variance and the forms used to request a variance are already in use. It is not anticipated that the proposed amendments will require any additional staffing or resources by rural employers.

3. Costs:

The proposed amendment is intended to reduce administrative costs to all parties including rural participants, 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 and the various updates and amendments since, the Board will offer support for this implementation. The Guidelines will be available on the Board’s website and anyone will be able to download and print them free of charge. Hard copies may be requested from the Board without a fee.

4. Minimizing adverse impact:

As stated above, the implementation of the eye, CRPS, and TBI MTGs is expected to reduce costs and consume fewer resources for all participants in the workers’ compensation system including rural participants. The updates will provide greater clarity and guidance.

5. Rural area participation:

The proposal will be available for public comment on the Board’s website and in the State Register, and the Board will duly consider all public comments received.

The proposed rule will not have an adverse impact on jobs. The proposed rule amends Section 324.2 of Part 324 of 12 NYCRR, known as the Medical Treatment Guidelines (Guidelines), to add eye disorder, complex regional pain syndrome (CRPS), and traumatic brain injury Guidelines.

The rule does not eliminate any existing process, procedure, or program, and will not result in an adverse impact on jobs.