(a) Medical Treatment Guidelines. Regardless of the date of accident or date of disablement, treatment of on the job injuries, illnesses, or occupational diseases to a worker's lumbar, thoracic, or cervical spine, shoulder or knee, or for carpal tunnel syndrome, [or] non-acute pain, hip or groin, foot or ankle, elbow, or occupational interstitial lung disease shall be consistent with the Medical Treatment Guidelines set forth in paragraphs (1) through [(6)] (10) of this subdivision. The operative Medical Treatment Guidelines shall be the Medical Treatment Guidelines in place on the date on which medical services are rendered. All Treating Medical Providers shall treat all existing and new workers' compensation injuries, illnesses, or occupational diseases, except as provided in section 324.3 of this Part, in accordance with the following:

(1) for the lumbar and thoracic spine, the New York Mid and Low Back Injury Medical Treatment Guidelines, Third Edition, September 15, 2014, effective November 1, 2014, which is herein incorporated by reference;

(2) for the cervical spine, the New York Neck Injury Medical Treatment Guidelines, Third Edition, September 15, 2014, effective November 1, 2014, which is incorporated herein by reference;

(3) for the knee, with the New York Knee Injury Medical Treatment Guidelines, Third Edition, September 15, 2014, effective November 1, 2014, which is incorporated herein by reference;

(4) for the shoulder, the New York Shoulder Injury Medical Treatment Guidelines, Third Edition, September 15, 2014, effective November 1, 2014, which is incorporated herein by reference; and

(5) for carpal tunnel syndrome, the New York Carpal Tunnel Syndrome Medical Treatment Guidelines, Second Edition, September 15, 2014, effective November 1, 2014, which is incorporated herein by reference; and,

(6) for non-acute pain, the New York Non-Acute Pain Medical Treatment Guidelines, First Edition, September 15, 2014, effective November 1, 2014, which is incorporated herein by reference.

(7) for the hip and groin, the New York Hip/Groin Medical Treatment Guideline, First Edition, July 31, 2019, effective January 31, 2020, which is incorporated herein by reference; and

(8) for the foot and ankle, the New York Foot/Ankle Medical Treatment Guideline, First Edition, July 31, 2019, effective January 31, 2020, which is incorporated herein by reference; and

(9) for the elbow, the New York Elbow Medical Treatment Guideline, first edition, July 31, 2019, effective January 31, 2020, herein incorporated by reference; and

(10) for occupational interstitial lung disease, the New York Occupational Interstitial Lung Disease Medical Treatment Guideline, first edition, July 31, 2019, effective January 31, 2020, herein incorporated by reference.

(b) Obtaining the medical treatment guidelines. The New York Mid and Low Back Injury Medical Treatment Guidelines, New York Neck Injury Medical Treatment Guidelines, New York Knee Injury Medical Treatment Guidelines, New York Shoulder Injury Medical Treatment Guidelines, New York Carpal Tunnel Syndrome Medical Treatment Guidelines, and New York Non-Acute Pain Medical Treatment Guidelines, New York Hip and Groin Medical Treatment Guidelines, New York Foot and Ankle Medical Treatment Guidelines, New York Elbow Medical Treatment Guidelines, and New York Occupational Interstitial Lung Disease Medical Treatment Guidelines incorporated by reference herein may be examined at the office of the Department of State, 99 Washington Avenue, Albany, New York, 12231, the Legislative Library, the libraries of the New York State Supreme Court, and the district offices of the Board. Copies may be downloaded from the Board's website or obtained from the Board by submitting a request in writing, with the appropriate fee, identifying the specific guideline requested and the choice of format to Publications, New York State Workers' Compensation Board, 328 State Street, Schenectady, New York 12305-2318. Information about the Medical Treatment Guidelines can be requested by email at [email protected], or by telephone at 1-800-781-2362. The Medical Treatment Guidelines are available on paper or compact disc. A fee of $10 will be charged for each guideline requested in paper format, and a fee of $5 will be charged for a compact disc containing all guidelines requested. Payment of the fee shall be made by check or money order payable to “Chair WCB.”

(c) Limitations. The Medical Treatment Guidelines in subdivision (a) of this section and this Part are not intended to, and were not prepared with the expectation of, establishing a standard for determining professional liability.

(d) Pre-authorized procedures list.

(1) All medical care consistent with the Medical Treatment Guidelines costing more than $1,000 is included on the pre-authorized procedures list, except for the medical care set forth in paragraph (2) of this subdivision. Medical care costing more than $1,000 included on the pre-authorized procedures list are pre-authorized so Treating Medical Providers are not required to request prior authorization.

(2) The following medical care consistent with the Medical Treatment Guidelines costing more than $1,000 is not included on the pre-authorized procedures list set forth in paragraph (1) of this subdivision so that prior authorization is required:

(i) Lumbar fusion as set forth in E.4 of the New York Mid and Low Back Injury Medical Treatment Guidelines;

(ii) Artificial disc replacement as set forth in E.5 of the New York Mid and Low Back Injury Medical Treatment Guidelines, and in E.3 of the New York Neck Injury Medical Treatment Guidelines;

(iii) Vertebroplasty as set forth in E.6.a.i. of the New York Mid and Low Back Injury Medical Treatment Guidelines;

(iv) Kyphoplasty as set forth in E.6.a.i. of the New York Mid and Low Back Injury Medical Treatment Guidelines;

(v) Electrical bone stimulation as set forth in the New York Mid and Low Back Injury Medical Treatment Guidelines and the New York Neck Injury Medical Treatment Guidelines;

(vi) Osteochondral autograft as set forth in D.1.f and Table 4 of the New York Knee Injury Medical Treatment Guidelines;

(vii) Autologus chondrocyte implantation as set forth in D.1.f., Table 5, and D.1.g. of the New York Knee Injury Medical Treatment Guidelines;

(viii) Meniscal allograft transplantation as set forth in D.6.f., Table 8, and D.7. of the New York Knee Injury Medical Treatment Guidelines;

(ix) Knee arthroplasty (total or partial knee joint replacement) as set forth in F.2. and Table 11 of the New York Knee Injury Medical Treatment Guidelines;

(x) Spinal Cord Pain Stimulators as set forth in G.1 of the Non-Acute Pain Medical Treatment Guidelines; and,

(xi) Intrathecal Drug Delivery (Pain Pumps) as set forth in G.2 of the Non-Acute Pain Medical Treatment Guidelines.

(3) Notwithstanding that a surgical procedure is consistent with the guidelines, a second or subsequent performance of such surgical procedure shall require prior approval if it is repeated because of the failure or incomplete success of the same surgical procedure performed earlier, and if the Medical Treatment Guidelines do not specifically address multiple procedures.

(e) Variances from the Medical Treatment Guidelines are permissible only as provided in section 324.3 of this Part.

(f) Maximum medical improvement shall not preclude the provision of medically necessary care for claimants. Such care shall be medically necessary to maintain function at the maximum medical improvement level or to improve function following an exacerbation of the claimant's condition. Post-maximum medical improvement medical services shall conform to the relevant Medical Treatment Guidelines, except as provided in section 324.3 of this Part.

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 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 MTG 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.

3. Needs and Benefits:

In keeping with the goals of the MTGs, the four additional Guidelines proposed here address the Hip and Groin, Foot and Ankle, Elbow, and Occupational Interstitial Lung Disease. The 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. If an individual or entity requests a hardcopy of one or more of the guidelines, the cost will be $10.00 per guideline. This charge is to cover the Board’s cost in making the copies. The charge for one or more of the Guidelines on a compact disc is $5.00.

It should be noted that all parties will be able to use the new 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 add these new Guidelines and keep the MTGs as is. However, the Board recognizes that these body parts lacked clarity and guidance, and the new Guidelines provide that for these body parts.

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. The participants will also have time to incorporate the new 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 new Guidelines 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.

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. If an individual or entity requests a hard copy of one or more of the guidelines, the cost will be $10.00 per guideline. This charge is to cover the Board’s cost in making the copies. The charge for one or more of the Guidelines on a compact disc is $5.00.

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 prescribing Guidelines for the treatment of the Hip/Groin, Foot/Ankle, Elbow, and Occupational Interstitial Lung Disease.

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.

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:

Adoption of the four new Medical Treatment Guidelines (Guidelines) (Hip and Groin, Foot and Ankle, Elbow, and Occupational Interstitial Lung Disease) 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 2013 and 2014 amendments, 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. If an individual or entity requests a hard copy of one or more of the guidelines, the cost will be $10.00 per guideline. This charge is to cover the Board’s cost in making the copies. The charge for one or more of the Guidelines on a compact disc is $5.00.

4. Minimizing adverse impact:

As stated above, the implementation of these four new MTG is expected to reduce costs and consume fewer resources for all participants in the workers’ compensation system including rural participants. The additions 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 four new Guidelines: Hip and Groin, Foot and Ankle, Elbow, and Occupational Interstitial Lung Disease.

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