Special Services
NY-ADR
8/17/22 N.Y. St. Reg. WCB-20-22-00002-E
NEW YORK STATE REGISTER
VOLUME XLIV, ISSUE 33
August 17, 2022
RULE MAKING ACTIVITIES
WORKERS' COMPENSATION BOARD
EMERGENCY RULE MAKING
I.D No. WCB-20-22-00002-E
Filing No. 613
Filing Date. Jul. 29, 2022
Effective Date. Jul. 29, 2022
Special Services
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 324.3 of Title 12 NYCRR.
Statutory authority:
Workers' Compensation Law, section 117 and 141
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The amendment of 12 NYCRR 324.3 is adopted as an emergency measure because the Board wants to ensure that sacroiliac joint (SIJ) fusion and peripheral nerve stimulation are not performed unnecessarily, and that if and when it is medically necessary, then prior authorization has been obtained. This is necessary for the public health and safety in order to protect injured workers from having SIJ fusion surgery or peripheral nerve stimulation performed when they are not medically necessary, as these are procedures that carry with them multiple inherent risks, and that are therefore only clinically indicated in highly select patients. The Medical Treatment Guidelines also reflect this. This is also to keep this section in effect pending permanent adoption of the proposal.
Subject:
Special Services.
Purpose:
To add sacroiliac joint and PNS to list of special services requiring prior authorization keep in effect for adoption.
Text of emergency rule:
Paragraph (1) of subdivision (a) of section 324.3 of Title 12 NYCRR is hereby amended to read as follows:
(a) Treating medical providers.
(1) Applicability
(i)(a) When a treating medical provider determines that medical care that varies from the Medical Treatment Guidelines, such as when a treatment, procedure, or test is not recommended by the Medical Treatment Guidelines, appropriate for the claimant and medically necessary, he or she shall request a variance from the insurance carrier, self-insured employer, or third party administrator by submitting a prior approval request (PAR: MTG Variance) (hereinafter “PAR”) in the format prescribed by the chair for such purpose, which may be electronic.
(b) In addition, prior authorization for the following special services (PAR: Special Services) is required:
(1) Lumbar fusion as set forth in E.4 of the New York Mid and Low Back Injury Medical Treatment Guidelines;
(2) 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;
(3) Vertebroplasty as set forth in E.6.a.i. of the New York Mid and Low Back Injury Medical Treatment Guidelines;
(4) Kyphoplasty as set forth in E.6.a.i. of the New York Mid and Low Back Injury Medical Treatment Guidelines;
(5) 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;
(6) Osteochondral autograft as set forth in D.1.f and Table 4 of the New York Knee Injury Medical Treatment Guidelines;
(7) Autologous chondrocyte implantation as set forth in D.1.f., Table 5, and D.1.g. of the New York Knee Injury Medical Treatment Guidelines;
(8) Meniscal allograft transplantation as set forth in D.6.f., Table 8, and D.7. of the New York Knee Injury Medical Treatment Guidelines;
(9) 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;
(10) Spinal Cord Pain Stimulators as set forth in G.1 of the Non-Acute Pain Medical Treatment Guidelines; [and,]
(11) Intrathecal Drug Delivery (Pain Pumps) as set forth in G.2 of the Non-Acute Pain Medical Treatment Guidelines[.];
(12) Sacroiliac joint (SIJ) fusion as set forth in E.8 of the Mid and Low Back Medical Treatment Guidelines; and
(13) Peripheral Nerve Stimulation (PNS) as set forth in G.2 of the Non-Acute Pain Medical Treatment Guidelines.
(c) Notwithstanding that a surgical procedure is consistent with the guidelines, a second or subsequent performance of such surgical procedure shall require a variance 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.
(d) This section shall not apply to prior authorization requests from the formulary, as set forth in Part 441 of this chapter, or the durable medical equipment fee schedule, as set forth in Part 442 of this chapter.
(ii) A PAR must be requested and granted by the carrier, self-insured employer, or third-party administrator, the Board or order of the Chair before medical care that varies from the Medical Treatment Guidelines or special service is provided to the claimant and the carrier, self-insured employer, or third-party administrator may deny the PAR and deny payment of the treatment requested if the treatment is rendered prior to the PAR being granted by the carrier, self-insured employer, third-party administrator, the Board or order of the Chair.
(iii) For the purposes of this section, a treating medical provider shall not include a physician assistant, acupuncturist, physical therapist, or occupational therapist, as defined in section 13-b.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. WCB-20-22-00002-EP, Issue of May 18, 2022. The emergency rule will expire September 26, 2022.
Text of rule and any required statements and analyses may be obtained from:
Heather MacMaster, Workers' Compensation Board, 328 State Street, Schenectady, NY 12305, (518) 486-9564, email: [email protected]
Regulatory Impact Statement
1. Statutory authority: Workers’ Compensation Law (WCL) § 117(1) and 142 authorizes the Chair of the Workers’ Compensation Board (Board) to adopt reasonable rules consistent with, and supplemental to, the provisions of the WCL.
2. Legislative objectives: In keeping with the goals and powers of the New York State Workers’ Compensation Board (Board) to provide quality and efficient care to injured workers, the emergency adoption and permanent proposal seeks to add sacroiliac joint (SIJ) fusion and peripheral nerve stimulation (PNS) to the list of Special Services requiring prior authorization. This emergency adoption is also to keep the regulation in effect until it can be permanently adopted.
3. Needs and benefits: The emergency adoption and permanent proposal is necessary for the health and safety of injured workers because, while these procedures are clinically indicated and necessary in highly select patients, they do carry with them multiple inherent risks, and it is imperative to guard against exposure of patients to these risks in the context of having these procedures performed unnecessarily. The prior authorization process allows the procedures to be performed when they are clinically indicated and ensures that they are medically necessary. The Medical Treatment Guidelines will reflect this, as well.
4. Costs: The Board anticipates that there should be no added costs, as the proposal is simply changing the mechanism for how these surgeries are requested. The change utilizes an existing mechanism to provide injured workers access to procedures that they have largely not had access to previously.
5. Local government mandates: The proposed amendments do not impose any additional program, service, duty, or responsibility upon any county, city, town, village, school district, fire district, or other special district – they simply add SIJ fusion and peripheral nerve stimulation to the list of Special Services.
6. Paperwork: The regulatory proposal requires additional paperwork in that SIJ fusion and peripheral nerve stimulation are being added to the list of Special Services requiring prior authorization, so providers will need to fill out a prior authorization request (PAR) for these procedures when medically necessary.
7. Duplication: The proposal does not duplicate other regulatory initiatives.
8. Alternatives: An alternative would be to leave the current regulations in place and not add these procedures to the list of Special Services. However, the Board believes that the clarity as to how these requests will be reviewed is necessary to ensure that only injured workers who need the procedures get them. The proposal also serves to ensure that injured workers who need the procedures are not prevented from receiving them.
9. Federal standards: There are no applicable Federal Standards.
10. Compliance schedule: The emergency adoption takes effect immediately upon filing to ensure that injured workers are protected and that these procedures are not performed unnecessarily, and to provide a mechanism for these procedures to be performed when prior authorization is obtained.
Regulatory Flexibility Analysis
1. Effect of rule
The emergency adoption and permanent proposal seeks to add sacroiliac joint (SIJ) fusion surgery and peripheral nerve stimulation to the list of Special Services requiring prior authorization.
2. Compliance requirements
Authorized providers will need to submit a prior authorization request (PAR) in order to perform SIJ fusion surgery and peripheral nerve stimulation.
3. Professional services
It is believed that no professional services will be needed by small businesses or local governments to comply with this emergency adoption and proposal.
4. Compliance costs
Compliance with the proposed regulations should not impose compliance costs on small businesses or local governments, as this emergency adoption and proposed rulemaking adds SIJ fusion surgery and peripheral nerve stimulation to the list of Special Services requiring prior authorization, and authorized medical providers already have to do this for many procedures. The Board anticipates that there should be no added costs, as the proposal is simply changing the mechanism for how these procedures are requested.
5. Economic and technological feasibility
Compliance with the proposal is economically and technologically feasible for small businesses and local governments, because PARs already exist in the regulations – the emergency adoption and proposal simply adds two more procedures to the list of Special Services requiring prior authorization.
6. Minimizing adverse impact
The emergency adoption is being filed to ensure that authorized providers do not perform these procedures unnecessarily – adding it to the list of Special Services ensures it is available if it is medically necessary while making it clear that they are only clinically indicated for highly select patients. This emergency adoption is also to keep the regulation in effect until it can be permanently adopted.
7. Small business and local government participation
The Board does not have a small employer or municipality database but has sent an electronic communication describing the emergency adoption and proposal to health care provider subscribers for Board updates on April 15, 2022.
The Board will also duly consider all public comments received from small businesses or local governments during the public comment period.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The emergency adoption and proposed rulemaking adds sacroiliac joint (SIJ) fusion surgery and peripheral nerve stimulation to the list of Special Services requiring prior authorization. Authorized medical providers across New York State, including rural areas, must request prior authorization before performing this surgery.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The same compliance and recordkeeping requirements apply to rural areas as metropolitan ones. Prior authorization requests (PARs) must be submitted in order to perform SIJ fusion surgery and/or peripheral nerve stimulation on an injured worker, which requires that it be medically necessary.
No special professional services should be required by rural or any other areas.
3. Costs:
The Board anticipates that there should be no added costs, as the proposal is simply changing the mechanism for how these surgeries are requested.
4. Minimizing adverse impact:
The emergency adoption is being filed to ensure that authorized providers do not perform these procedures unnecessarily – adding them to the list of Special Services ensures it is available if it is medically necessary while making it clear that it is only clinically indicated in highly select patients. This emergency adoption is also to keep the regulation in effect until it can be permanently adopted.
5. Rural area participation:
The Board will duly consider all public comments received from rural areas during the public comment period.
Job Impact Statement
A Job Impact Statement is not required because the emergency adoption and proposal will not have any impact on jobs or employment opportunities. The emergency adoption and proposal add sacroiliac joint fusion and peripheral nerve stimulation to the list of Special Services requiring prior authorization. This emergency adoption is also to keep the regulation in effect until it can be permanently adopted.
Assessment of Public Comment
The agency received no public comment.
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