§ 324.2 Medical treatment guidelines

(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 shall be consistent with the Medical Treatment Guidelines set forth in paragraphs (1) through ([5]6) 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, [Second] Third Edition, [January 14, 2013, effective March 1, 2013] May 27, 2014, effective August 13, 2014, which is herein incorporated by reference;

(2) for the cervical spine, the New York Neck Injury Medical Treatment Guidelines, [Second] Third Edition, [January 14, 2013, effective March 1, 2013] May 27, 2014, effective August 13, 2014, which is herein incorporated by reference;

(3) for the knee, with the New York Knee Injury Medical Treatment Guidelines, [Second] Third Edition, [January 14, 2013, effective March 1, 2013] May 27, 2014, effective August 13, 2014, which is herein incorporated by reference;

(4) for the shoulder, the New York Shoulder Injury Medical Treatment Guidelines, [Second] Third Edition, [January 14, 2013, effective March 1, 2013] May 27, 2014, effective August 13, 2014, which is herein incorporated by reference; [and,]

(5) for carpal tunnel syndrome, the New York Carpal Tunnel Syndrome Medical Treatment Guidelines, [First Edition, January 14, 2013, effective March 1, 2013] Second Edition, May 27, 2014, effective August 13, 2014, which is incorporated herein by reference[.] ; and,

(6) for non-acute pain, the New York Non-Acute Pain Medical Treatment Guidelines, First Edition, May 27, 2014, effective August 13, 2014, which is incorporated herein 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, [and] New York Carpal Tunnel Syndrome Medical Treatment Guidelines, and New York Non-Acute Pain 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 ten dollars will be charged for each guideline requested in paper format, and a fee of five dollars 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."

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 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:

The New York Non-Acute Pain MTG supplement and update current recommendations on chronic pain contained in previously adopted MTG. The Non-Acute Pain MTG includes state-of-the-art recommendations regarding the initiation of and long-term use of narcotics for the treatment of pain. This is a particularly important topic in light of the opioid epidemic facing the nation, including New York’s injured workers.

The Non-Acute Pain MTG provides for a comprehensive approach to the management of patients with non-acute pain, including best practice recommendations for prescribing narcotics. The Non-Acute Pain MTG encompasses a continuum of treatment approaches including early identification, the use of the biopsychosocial model, assessment and treatment of delayed recovery, identification of measurable outcomes, non-pharmacological treatments and pharmacological approaches, including both non-opioid and opioid medications.

The Non-Acute Pain MTG reflects a consensus of the medical professionals on the Medical Advisory Committee (MAC) regarding the diagnosis and management of chronic pain. The thirteen member MAC consists of eleven physicians, one business representative, and one labor representative. The MAC is co-chaired by the Medical Directors of the Worker Compensation Board (Board), Jaime Szeinuk, M.D. and Elain Sobol Berger, M.D., J.D. The MAC chose the term “non-acute pain” as the name for the MTG rather than chronic pain in order to provide a definition that encompasses any pain that exists beyond the anticipated recovery time and to avoid the negative implications associated with chronic pain.

The NAP MTG incorporates New York’s recent I-Stop opioid tracking requirements in order to address safety and health issues posed by the misuse and abuse of opioids.

The Guidelines set forth the standard of treatment and care of non-acute pain for workers’ compensation claimants. Carriers are only required to pay for medical care that is consistent with the Guidelines or that has been approved through a variance process.

4. Costs:

The Non-Acute Pain MTG is intended to improve medical care, speed delivery of care, speed return to work, reduce administrative costs to all parties and the Board, and reduce delays in resolution of disputes. As with the original Guidelines adopted in 2010, and amendments adopted in January 2013, 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 hardcopy of one or more of the guidelines, the cost will be $10.00 per guideline or $60.00 for all six. 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 Non-Acute Pain MTG 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 Requirements:

The proposed amendments to the regulations should not affect paperwork associated with medical treatment. Several medical reporting forms will be changed to include the Non-Acute Pain MTG. But there will be no change to the method and manner of the forms use.

7. Duplication:

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

8. Alternatives:

One alternative was to not add treatment guidelines for non-acute pain. However, the Board and MAC recognized the importance of developing Non-Acute Pain MTG for a number of reasons.

Primarily, it was recognized that there is a need for a comprehensive approach to the management of patients with non-acute pain, including best practice recommendations for prescribing narcotics. The Non-Acute Pain MTG encompasses a continuum of treatment approaches including early identification, the use of the biopsychosocial model, assessment and treatment of delayed recovery, identification of measurable outcomes, non-pharmacological treatments and pharmacological approaches, including both non-opioid and opioid medications.

Over the past decade, there has been a dramatic increase in the use of opioids to treat chronic non-cancer pain. It has been reported that among the workers’ compensation population nationally, the prevalence of opioid use is approximately 32%. And it has been medically recognized that the use of opioids for work-related injuries may actually increase the likelihood of disability. For example studies have shown that receiving more than a one week supply of opioids or two or more opioid prescriptions soon after an injury doubles a worker’s risk of disability at one year post-injury, compared with workers who do not receive opioids.

In addition, chronic use of opioids is strongly associated with the occurrence of dependence, particularly in the presence of co-morbid mental health conditions. In addition to the risk of mortality, chronic opioid therapy is associated with significant risk of non-fatal and fatal adverse outcomes. Accordingly, the Board and MAC found that there was no alternative but to develop Non-Acute Pain MTG that focus on carefully assessing the risk/benefit of prescribing opioids for injured workers, to provide guidance on use of opioids, tapering chronic opioid therapy, and a clear definition of meaningful improvement in function.

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 Board will conduct outreach and education to providers, insurance companies, attorneys, Board staff, and others, between now and the effective date to facilitate incorporation of changes and to familiarize all stakeholders with the substantive content of the new and revised Guidelines. The participants will also have time to incorporate the Non-Acute Pain Guideline 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, third party administrators hired by private insurance carriers and group self-insured trusts may be small businesses, and these businesses may be slightly impacted by this regulation. All health practitioners authorized by the Chair to treat will have to comply with this rule when treating injured workers for non-acute pain. Finally, local governments that own and/or operate a hospital may be affected by this rule.

The approximately 2,500 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 Non-Acute Pain Medical Treatment Guidelines (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. It is not anticipated that the proposed amendments will require any additional staffing or resources by rural employers.

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 including rural participants 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 hardcopy of one or more of the guidelines, the cost will be $10.00 per guideline or $60.00 for all six. 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 non-acute pain.

7. Small business and local government participation: The Board has solicited comments for the proposed Non-Acute Pain MTG on its website for this final version and earlier drafts 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.

While medical professionals and affected payers who are small businesses will be required to incorporate the Guidelines into their policies, practices, and procedures, the Board will assist in this process by providing training and support to stakeholders. There will be no charge for the training.

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 Non-Acute Pain Medical Treatment Guidelines (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. 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 amendment, 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 hardcopy of one or more of the guidelines, the cost will be $10.00 per guideline or $60.00 for all six. 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 Non-Acute Pain MTG is expected to reduce costs and consume fewer resources for all participants in the workers’ compensation system including rural participants.

While medical professionals and affected payers will be required to incorporate the Guidelines into their policies, practices, and procedures, the Board will assist in this process by providing training to stakeholders and Board employees. There will be no charge for the training.

5. Rural area participation:

The Board has posted the Guidelines on its website for six months and has requested all system participants to comment on the Guidelines. During this time the Board has received and reviewed comments.

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 a Non-Acute Pain Guideline and update earlier Guidelines for the back, neck, shoulder, knee and Carpal Tunnel Syndrome for consistency among the Guidelines and with the Non-Acute Pain Guideline.

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