The Notice of Adoption, I.D. No. WCB-21-18-00038-A, pertaining to Workers’ Compensation Board Legal Internship Program, published in the October 3, 2018 issue of the State Register was published with the incorrect Assessment of Public Comment. Following is the correct assessment for the rule:

I.D. No. WCB-21-18-00038-A

Subject: Workers' Compensation Board Legal Internship Program

The Chair and the Board received 30 formal written comments via email and regular mail in response to the proposed adoption of section 302-1.6 of 12 NYCRR. The public comment period remained open through July 27, 2018.

Three commenters expressed dissatisfaction with the extent of the Board’s consultation with the private bar and two opined that Board underestimated the number of claimants who would be affected by this regulation. The Board has considered these comments and finds that no changes are needed to the regulation as a result. The Board can confirm that members of the bar were consulted about the proposed regulation. Additionally, the projected number of unrepresented claimants who may benefit from the proposed regulation was based upon a review of cases in which a hearing had been scheduled on a medical-only claim, only. In comparison, the statistics referenced by the commenters concerned all medical-only cases, regardless of whether a hearing had been scheduled. In any event, the statistics provided by these commenters show that there are numerous unrepresented claimants in pending medical-only claims who may need legal assistance. The Board thus believes these statistics only highlight the benefits that a law school clinic program could offer.

A number of commenters suggested that the legal work involved in workers’ compensation claims is too complicated for law students to manage, and gaps in the students’ knowledge will cause harm to claimants. The Board has considered this comment and finds that no changes are necessary, given that the law students will be supervised, both directly and indirectly, by an admitted attorney with two years of practice experience. As such, the admitted attorney will ensure that students fully comprehend the legal issues raised in their cases and will be professionally responsible for the students’ work.

The Board received a comment from a worker advocacy group, recommending that the proposed regulation be narrowed to only allow legal interns to represent claimants in medical-only claims. Although the Board intends to assign legal interns to medical-only cases the Board believes that such a limitation would be an unnecessary abridgment of the current law clinic regulation. Section 302-1.6(b) of 12 NYCRR, currently permits certain legal interns to appear before the Board in a variety of cases, not limited to medical-only. The proposed rule does not expand the types of cases that may be handled by a legal intern, but rather expands those who may qualify as law school and legal interns to represent claimants in Board proceedings. Accordingly, no changes have been made to the proposed regulation as a result of this comment.

An attorney recommended that the regulation require law student interns to take the licensed representative test before representing claimants. As law students will be supervised, both directly and indirectly, by an admitted attorney with two years of practice experience, there is no need for them to pass an exam permitting to represent claimants on their own without supervision. As such, no changes have been made to the proposal as a result of this comment.

The Board received several comments opining that it is unethical for the Board to employ and supervise law student interns given that the Board is the adjudicatory agency and the legal intern will represent a party of interest in the Board proceeding. The Board cannot, and will not, provide any representation of injured workers in formal proceedings. The Board’s role would be limited to helping clinics to get off the ground by volunteering to provide some supervision in medical-only cases, in the context of informal proceedings. For all broader clinical models, the Board would have no role in retaining or supervising law students or recent graduates to represent injured workers. For both the informal and broader clinical models, the only way to establish a clinic would be for outside lawyers to volunteer to participate to provide this service.

When a law school is interested in incorporating a workers’ compensation component into a new or existing law school clinic, the Board’s involvement will be limited to having a Board attorney (who is not an employee of counsel’s office or adjudication) supervise the legal externs, where the advice and actions “are solely within the context of informal resolution.” In short, the Board understands the conflict of interest concerns raised by these commenters, and trusts that this explanation establishes that the Board’s conduct under the proposed regulation will be consistent with the Public Officers Law and the Judiciary Law.

Several commenters asserted that the proposed regulation is unnecessary because there are existing opportunities under the Workers’ Compensation Law to allow non-attorneys to represent workers’ compensation claimants, insofar as the Workers’ Compensation Law allows licensed representatives to represent claimants. Licensed hearing representatives represent claimants for fees. Legal interns will work on cases pro bono. A licensed attorney with two years of practice experience will be required to supervise the law student interns; as such, the legal interns will have guidance from a practicing attorney, who will be professionally responsible for the interns’ work product. Therefore, the Board finds that no changes are necessary due to this comment.

The Board received a comment from an attorney opining that the proposed regulation violates Workers’ Compensation Law section 24. That statute concerns the costs and fees that may be awarded in workers’ compensation cases; it does not limit to who may appear before the Board. Further, the Board notes that 12 NYCRR section 302-1.6(b) currently permits certain law student interns to represent parties of interest in Board proceedings; this proposal therefore does not add new categories of persons who may appear in Board proceedings. The Board therefore has not made any changes to the proposed regulation as a result of this comment.

Several commenters opposed the proposed rule on the ground that claimants may need representation for issues outside of their workers compensation claim, but the legal interns would not be able to represent the claimant in all related matters, which will harm claimants. As an initial matter, the Board notes that 12 NYCRR section 302-1.6(b) currently permits certain law student interns to represent parties of interest in Board proceedings. Second, legal interns will only be assigned to cases in which the claimant has been unable to retain private legal counsel. As such, although the legal intern may not be able to assist with non-workers’ compensation matters, the alternative for the claimant would be lack of representation on their Board case. Third, the claimant will be informed about the limited scope of representation through the retainer agreement, and therefore will make an informed choice before agreeing to the legal intern’s representation. Therefore, no changes have been made to the proposal as a result of this comment.

Several commenters opined that the Board lacks authority to promulgate this regulation because the New York State Appellate Division has authority under the Judiciary Law to control the appearance of law students before an agency. The proposed regulation acknowledges that the four Appellate Division courts have authority to regulate legal internship programs, insofar as the proposed rule provides that law school graduates and senior law students must be “permitted to practice law pursuant to the Judiciary Law under a program of activities approved by the appellate division of the supreme court of the department within which such activities are taking place[.]” The proposed regulation thus does not detract from the Appellate Division’s authority, but rather requires that the legal interns be approved through a Board program, as well as by the appropriate Appellate Division. Therefore, no changes have been made as a result of this comment.

Several commenters suggested that the Board consider alternatives to the proposed regulation that would encourage more attorneys or licensed representatives to represent indigent claimants. Specifically, they recommended that the Board change its rules to require a carrier or medical provider to separately pay a claimant’s legal fees if the claimant succeeds on a medical-only claim, or allow the Board to draw from Workers’ Compensation Law section 151 fund to pay a claimant’s legal fees. The Board has considered these recommendations and finds that no changes are necessary to the regulation as a result. The Board provides for attorney fees pursuant the Workers’ Compensation Law section 24. Additionally, the proposed regulation will allow members of the Bar to fulfill pro-bono requirements, and provide a further means to serve the public interest. As such, the Board finds that the proposed regulation is the most expeditious method for increasing opportunities for certain unrepresented claimants to find legal representation.

The Board received several comments recommending that the proposed regulation be withdrawn because legal interns would be unable to take medical testimony, inasmuch as Workers’ Compensation Law section 121, incorporating CPLR Article 31, requires medical testimony to be taken in the form of a deposition, and only attorneys and pro se litigants can take depositions. While it is certainly true that an attorney would need to conduct such depositions, legal interns may assist in all aspects of the deposition and in matters where a deposition is not required. As such, no changes have been made to the regulation as a result of this comment.

In addition to the aforementioned individual comments, the Board also received form letters from a law firm, which asked that the proposed regulation be withdrawn on several grounds. First, the commenters asserted that the legal work involved in workers’ compensation claims is too complicated for law students, and gaps in the students’ knowledge will cause harm to claimants and burden others involved in the handling of workers’ compensation claims. Second, the commenters noted that legal interns are not subject to disciplinary action if they mishandle a claim, which may result in more mistakes without accountability. Third, the commenters stated that law students cannot take part in depositions, so they will be unable to take medical testimony at hearings. Fourth, they asserted that the proposed regulation presents an unethical conflict of interest, as the Board plans to supervise the law students who are representing claimants before the Board, and as a result, the students may not zealously advocate for the claimants out of concern that their employer would react negatively when Board rules and processes are challenged. These comments reflect those concerns of the individual commenters, discussed above. Generally, the Board finds these concerns to be without merit for the particular reasons detailed previously. Accordingly, no changes have been made as a result of these comments.

The Notice of Revised Rule Making, I.D. No. WCB-23-18-00005-RP, pertaining to Medical Fee Schedules, published in the October 3, 2018 issue of the State Register was published with the incorrect Assessment of Public Comment. Following is the correct assessment for the revised rule:

Subject: Medical Fee Schedules

I.D. No. WCB-23-18-00005-RP

The Chair and Board received approximately 130 unique formal written comments, and approximately 627 additional form letters, as well as 262 postcards. In the unique comments received, there were a number of requests for information or clarification. These communications have been responded to individually and are not summarized here. Based on the comments received, the Board has revised its proposed Medical Fee Schedules. The comments received are summarized below.

Medical Fee Schedule

The Board received a comment opining that Ground Rule 10 increasing fees for testimony and eliminating the daily cap on fees for multiple appearances to testify will create many disputes. The testimony fees proposed are proportionate increases for all providers. The daily cap was eliminated as it is seldom used and difficult to apply fairly. Accordingly, no changes were made to this Ground Rule.

The Board received a comment from an insurance company supporting Ground Rule 11.

The Board received a comment from an insurance company objecting to the removal of a reference to Medicare in the definition of “physician-employer” in the Surgery Ground Rules as it is perceived to change the meaning of Surgery Ground Rule 12 (F). No change is intended to Surgery Ground Rule 12 (F) in the Proposed Fee Schedule. Language has been added to Ground Rule 11 to clarify that it does not affect application of Surgery Ground Rule 12 (F) and that the supervising physician for surgical assistants must be the physician performing the surgery.

The Board received a number of comments from individual physicians, companies, and practices, objecting to limiting the type and amount of drug testing allowed by providers, especially limiting such testing to urine drug tests and point of care screening. Some of the comments also opined that this proposed change will negatively affect all no-fault patients, as well as NYS workers’ compensation patients. The changes to the Ground Rules for drug testing are directly copied from the Board’s current Non-Acute Pain Medical Treatment Guidelines and incorporate the treatment requirements therein. However, in response to these comments, the Board has added two additional available codes for urine drug testing and point of care screening (80306 and 80307) to permit more precise in-office testing.

The Board received a comment from an insurance company supporting the proposed instructions for reporting drug screening services.

The Board received a number of comments from physicians supporting the overall increases in reimbursement and objecting to the change in the CPT codes that will result in a reduction in reimbursement for EMG studies and EDX testing. As the changes in the rates for reimbursement for EMGs and EDX are not the result of an actual decrease in reimbursement rates but rather reflect changes to the CPT codes themselves as created by the American Medical Association, no changes have been made to the Fee Schedule as a result of these comments. The Board has added missing codes for electrodiagnostic testing to the Chiropractic Fee Schedule (95885-95887) as they were inadvertently omitted in the initial proposal.

The Board received many form letters from physical therapists and physical therapy patients, as well as several other comments from individuals and organizations, supporting the proposed rate increase for physical therapists, but objecting to an 8 RVU cap, requesting it be doubled to 16 or, in some comments, eliminated altogether. Following review of these comments, the Board proposes an increase in the cap to 12 RVUs per patient. The Board has also increased the available RVUs for initial evaluations and reevaluations.

Chiropractic Fee Schedule

The Board received a number of form letters from chiropractors, objecting to omission of CPT codes for massage therapists, non-surgical decompression tables, reduction in fees for injections, elimination of scope of practice for drug testing, and objection to chiropractic ground rule 10 generally. These objections relate to codes that were not part of the Chiropractic Fee Schedule. Ground Rule 10 clarifies that Chiropractors must bill using the Chiropractic Fee Schedule. This is a clarification that has been made to the Podiatry and Psychology Fee Schedules as well. It is not a new rule as chiropractors are currently prohibited from billing outside of the Chiropractic Fee Schedule in Workers’ Compensation cases. Accordingly, no changes have been made as a result of these comments. It is noted that the Board’s initial proposal increases chiropractors’ overall RVUs and this will result in higher reimbursement.

The Board also received comments from chiropractors objecting to the omission of a number of CPT codes from the Chiropractic Fee Schedule. The Board notes that most of the identified codes were never part of the Chiropractic Fee Schedule. CPT code 97750 governing range of motion testing has been removed from every fee schedule. Such testing generally has been and should be included as part of the medical examination and not billed separately. CPT code 96002 has been removed as surface EMGs are not recommended under the MTG. The Board has added missing codes for electrodiagnostic testing to the Chiropractic Fee Schedule (95885-95887) as they were inadvertently omitted in the initial proposal.

The Board received a comment from an insurance company supporting ground rule 10, as well as assigning some of the Category III CPT codes an RVU.

The Board received several comments from chiropractors objecting to decreases in reimbursement rates, generally. As mentioned previously, the Board did not decrease reimbursement rates and has increased the RVUs for chiropractors. To the extent that any fees have declined, the changes are due to modification in the CPT codes themselves since 2012 and earlier. The Board also notes that in its new proposal the number of RVUs available for an initial evaluation, a reevaluation and those available each day, have all been increased from the 2012 Medical Fee Schedule. Code 99243 has been added for non-schedule permanency evaluations.

The Board received a number of form letters, as well as individual letters, from chiropractors and several patients, objecting to the proposed changes impacting manipulation under anesthesia (MUA). Manipulation under anesthesia is not recommended under the Medical Treatment Guidelines. Accordingly, no changes have been made in response to these comments.

The Board also received several form letters objecting to the proposed changes eliminating/reducing spinal decompression. Spinal decompression is not recommended under the Medical Treatment Guidelines. Accordingly, no changes have been made in response to these comments.

The Board received several comments from individuals, a law firm, and an association, objecting to the proposed changes to the chiropractic fee schedule as a whole, as well as 262 postcards from a law firm. As these comments did not address any substantive aspect of the fee schedule, no changes were made as a result of these comments.

Behavioral Health Fee Schedule

The Board received comments on behalf of multiple psychology practices objecting to the proposed changes to the Behavioral Health Fee Schedule. Specifically, the comments objected to precluding psychologists from supervising other mental health providers. The Standard of Practice of Behavioral Health Services has been modified to clarify what has been an area of confusion in the community. The Standard now clarifies that the Workers’ Compensation Law (WCL) only permits supervision of non-authorized providers by physicians (see WCL § 13-b[1][c]). There is no corollary provision in WCL § 13-m that would permit psychologists to supervise non-authorized providers. As only the legislature may amend the WCL, no change has been made to this Standard in the current proposal. Finally, the Standard clarifies that psychologists who wish to treat a workers’ compensation claimant must be Board authorized as contemplated by WCL § 13-m.

The Board received several other comments from providers and associations objecting to the use of code 97127. Behavioral Medicine Ground Rule 7 limits use of CPT code 97127 to 1 unit when reported with CPT code 97533 to clarify that overlapping services are not necessary and to require that both codes may only be used for face-to-face services. Updates made by the American Medical Association to this CPT code means that it may no longer be used in 15-minute increments and thus the 1 unit per day limit is appropriate. In response to these comments the Board has increased the RVUs associated to this code. The Board received several comments from providers objecting to the limitation of 4 hours for initial testing. In response to these comments, the Board has removed this limitation.

The Board received a comment from an association objecting to the removal of several CPT codes for behavioral health, including: 90832, 90834, 90837, and 90791. These codes have not been removed. Rather Ground Rule 8 simply states that they may not be reported on the same date with 96150-96155. Accordingly, no change has been made to this Ground Rule.

General Comments

The Board received several comments expressing support for the proposal as a whole.

The Board also received several comments from insurance companies and TPAs generally opposing the proposed increased fees.

The Board also received a comment from an insurance company agreeing with the update, including 2018 CPT codes.

The Board received comments from two associations requesting a general fee increase higher than the proposal.

Conclusion

As a result of these comments and the Board internal review, the proposed Medical Fee Schedules have been revised throughout. The Board will receive public comments to the revised rule-making for an additional thirty days.