Workers' Comp Committee Update
September 22, 2010
- Committee Hears from WCB Leadership
- More Changes Coming; Does It Feel Like the Halloween Witch's Cauldron Brewing?
- Insurance Department Releases Task Force Impairment Guideline Recommendations
Key leadership from the Board met with The Business Council's Workers Comp Committee on September 15. A voice-challenged Betsey Miller, Special Assistant to the Chair, gave an overview on implementation of the Medical Treatment Guidelines (MTG); more voice-challenged WCB Executive Director Jeff Fenster provided high level policy frameworks guiding the Board's decision-making; and fully-voiced Cheryl Wood, Special Counsel to the Chair, gave participants insight into changes made to the Medical Treatment Guideline regulations as a result of the public comments received. Dr. Sobol-Berger, Associate Medical Director, clarified issues specific to the guidelines.
Some take-aways from the meeting, including Q&As, for those unable to attend:
- Effective date of the MTG rulemaking will be December 1, 2010; the Board hopes to publish the final regulations in the October 13, 2010 State Register. Final regs will also be available on the Board's web site. The Board's powerpoint for the meeting can be found here.
- Few significant/substantive changes were made to the draft regulations as a result of the public comment period. The biggest change is the effective date of December 1, and that was prompted by comments received from a variety of sources indicating the lead-time they will need to change their systems to align with new forms and new requirements.
- Some of the issues raised in Business Council comments on the regs will remain as written in the draft: no change to the definition of maximum medical improvement; no change in the number of days to notify the Board that an IME will be used for a variance; no change to the drafted language needing sign-off from a claimant to use a medical arbitrator for appeal as opposed to an ALJ.
- Board will be making some clarification on the language on the new 90 day timeframe between visits (increased from current level of 45 days). Board did acknowledge that the intent of this language was not to permit 90 days before a medical report is to be issued. The intent was to prevent unnecessary care, merely because of the 45 day rule. No language was provided but the Board did say that they would clarify that reports must still be filed within “x” number of days of a medical visit.
- Navigation software will be available from vendors – but not endorsed by the Board – that crosswalks with the MTGs, forms, CPT codes, and the fee schedule.
- Concurrent treatment is not addressed in the MTGs; the Board will address in a series of Frequently Asked Questions.
- Board has not yet resolved how the MTGs will impact existing cases and anticipate issuing a subject number on this and addressing through FAQs.
- Web-based training – in various modules, including a “101 on the MTGs” - will be available at no cost. Doctors will be able to earn up to 6 CME credits; chiropractors will be able to earn CCEs. The Board is working with Albany Law School on training for which attorneys can earn CLEs, as current law prohibits CLEs for e-based training; the Board does have an attorney-focused module which will be available. All stakeholders will be able to take all Board-developed training, regardless of whether credits are needed. Training is anticipated to roll out the week of October 4th.
- In response to a question about claimant education on the MTGs, Board staff noted that they are adding medical staff to take calls from the 800 #.
- The Board consistently stated that they were prepared to implement the MTGs on December 1 – not “ease” into them. They repeated that continued treatment is conditioned on objective medical improvement and that they are prepared to support denials which are grounded appropriately in this philosophy. They reminded participants that the MTGs were about reducing unnecessary care, not reducing costs.
Ah, so you're a planner, you're organized, and your systems are all ready to accommodate the new medical treatment guidelines. Not so fast..... The implementation of the new MTGs on December 1 will also bring a new fee schedule for medical, podiatry, chiropractic and psychology. The Board published the fee schedule rulemaking for the new fee schedule today, with comments due November 8. The rulemaking notes that the increase in the E&M fees is estimated to cost approximately $45 million throughout the system, to be offset by cost reductions from the reduced medical costs elsewhere in the system as a result of diagnostic treatment networks, MTGs, and the changes to the frequency of medical reports required for ongoing disability payments (see the 90 day discussion above). The rulemaking will also permit chiropractors to bill for treatment modalities performed during the visit, as opposed to current practice of billing by office visit.
The Board also filed emergency rulemaking (see page 30) today to clarify that the filing of written reports of Independent Medical Examiners be made within 10 business days after the examination; 20 business days in the case of individuals examined outside the State. This emergency rule is intended to address concerns raised about the insufficient current timeframe of 10 calendar days for filing of the report with the Board.
Finally, the Board anticipates issuing imaging network rulemaking and out-of-state employer coverage rules prior to the end of this year; and convening a medical workgroup to develop treatment guidelines for chronic pain and carpal tunnel.
The long-awaited recommendations from the 2007 Reform Task Force on impairment guidelines were released to the Board on September 15. Superintendent Wrynn's transmittal document provides an overview of the team and the process used by the Task Force Director Bruce Topman to arrive at the recommendations.
The impairment guidelines are merely recommendations. It is now within the Board's purview on the appropriate next steps. The Board can accept the impairment guideline recommendations and their approach and publish rulemaking to implement, or modify as they see fit, or go with a different process.
The Task Force members were unable to reach a consensus recommendation on loss of wage earning capacity guidelines, in large part because of a decision made outside the Task Force, but imposed upon its work, which precluded the use of any whole body percent in translating impairment into a component of LWEC. So while the impairment guidelines represent sound medical recommendations, there remains a void on how best to translate that process into a starting point for an LWEC determination. Although the Board believes the Buffalo Auto decision provided the necessary framework for judges to render LWEC decisions, even the Board acknowledged at our September 15th meeting that the pace at which cases are being classified is slower than they would have anticipated. More work needs to follow to be able to “translate” the functional and impairment pieces completed by the Task Force into LWEC components.