N.Y. Comp. Codes R. & Regs. Tit. 12 § 324.3 - Variances (PAR: MTG Variances)
(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;
(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
PAR: special services 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, selfinsured 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.
(b) Insurance carriers, self-insured
employers, and third-party administrators.
(1) Insurance carriers, self-insured
employers, or third-party administrators shall provide the Chair or his or her
designee in the manner prescribed by the Chair with the name and contact
information for the point(s) of contact for PAR review. Such contact
information may include the contacts' direct telephone number(s) and email
address(es).
(i) If the designated point(s)
of contact changes at any time for any reason, the insurance carrier,
self-insured employer, or third-party administrator shall notify the Chair or
his or her designee of such change in the manner prescribed by the
Chair.
(ii) The list of designated
points of contact for each insurance carrier, self-insured employer, or
third-party administrator shall be maintained by the Board electronically. When
a treating medical provider submits a PAR electronically, it shall be directed
to the appropriate contact person. Any change in the designated contact shall
not be effective until the designated contact information has been updated in
the Board's electronic records.
(iii) In the event that a carrier,
self-insured employer, or third-party administrator fails to so provide the
Chair or his or her designee with such name and contact information (in the
manner prescribed), or provides incorrect or incomplete contact information
during initial registration or when updating pursuant to paragraph (1) of this
subdivision, such carrier may be subject to:
(a) Orders of the Chair granting any PAR
submitted during such time when the name and contact information is missing,
incomplete or incorrect; and
(b)
Penalties issued pursuant to section
114-a
(3) of the Workers' Compensation Law for
every case, where a PAR was submitted.
(2) Review by insurance carrier, self-insured
employer, or third-party administrator. When an insurance carrier, self-insured
employer, or third-party administrator denies or partially approves a PAR, the
insurance carrier, self-insured employer, or third-party administrator must
also assert any other basis for denial or such basis for denial will be deemed
waived. Except as set forth in subdivision (b) below, all denials or partial
approvals must be made by the Carrier's Physician. A partial approval limits
the length of time or frequency of the treatment, or authorizes a related but
different treatment than that requested in the PAR.
(i) Without IME or review of records.
(a) The insurance carrier, self-insured
employer, or third party administrator shall review the PAR and respond to the
request in the format prescribed by the chair within 15 calendar days of
receipt, except as provided in subparagraph (ii) of this paragraph. Receipt is
deemed to be the date submitted.
(1) In the
event the PAR is submitted after the mandatory first report of injury pursuant
to section
300.22(b) of this
Chapter shall become due and no such report has been filed, the Board may issue
an Order of the Chair granting the requested treatment.
(b) In the following circumstances a PAR may
be denied without an opinion by the Carrier's Physician or an IME or review of
records.
(1) If the PAR was submitted after
the medical care was rendered, a medical opinion by the Carrier's Physician, a
review of records, or independent medical examination is not required and the
insurance carrier, self-insured employer or third party administrator may deny
the PAR on the basis that it was not requested before the medical care was
provided.
(2) The insurance
carrier, self-insured employer, or third-party administrator may deny a PAR on
the basis that:
(i) the treating medical
provider seeks a PAR for a treatment, procedure or test that is substantially
similar to a prior request from the treating medical provider that has not yet
been denied by the carrier, self-insured employer or third party administrator;
or
(ii) that a prior substantially
similar request has been denied, and the subsequent request does not contain
any additional documentation or justification to the previous request. The
carrier self-insured employer or third-party administrator may deny the PAR by
specifying the basis for the denial. The carrier self-insured employer or
third-party administrator may submit the denial without a medical opinion by
Carrier's Physician's or independent medical examination.
(3) If a case is closed, disallowed or
cancelled, where ongoing medical treatment is resolved by an agreement pursuant
to section
32 of
the Workers' Compensation Law, subject to an offset pursuant to an approved
third-party settlement in accordance with section
29 of
the Workers' Compensation Law, or controverted in accordance with section
300.22(b)(1)(ii) or
(c)(1) of this Chapter, or when a claimant
fails to appear for a scheduled IME as set forth in (b)(ii)(2) herein, the
insurance carrier, self-insured employer or third-party administrator may deny
a PAR without review by the Carrier's Physician, or an independent medical
examination.
(i) Nothing herein shall
prohibit a carrier from seeking review of a PAR by a Carrier's Physician or
independent medical examiner.
(ii)
When a PAR is denied without review by Carrier's Physician in accordance with
subdivision (b) herein, there shall be no review by the Medical Director's
Office. A claimant may request review by the Board by filing a Request for
Further Action, that demonstrates that the basis for denial is factually
inaccurate. The Board may respond to such requests for review by letter or by
referral to adjudication, as appropriate in the discretion of the Chair or his
or her designee.
(c) A denial or partial approval of the
request for a variance for reasons other than those set forth in clause (a) of
this subparagraph, including a denial for failure of the medical provider to
meet the burden of proof that the PAR was appropriate for the claimant and
medically necessary, or an approval that concedes medical necessity but does
not affirm that the approved medical care will be paid at the fee schedule
rate, must be reviewed by the Carrier's Physician, if an independent medical
examination or review of records is not conducted as set forth in this
paragraph. A denial or partial approval issued by other than a Carrier's
Physician is not valid and may be deemed approved by the Board. Invalid denials
may be subject to penalties pursuant to sections
13-a
(6)(a) and
114-a
(3) of the Workers' Compensation
Law.
(d) The carrier, self-insured
employer or third-party administrator shall send the claimant notice of the
approval, partial approval or denial of the PAR. Failure to send the claimant
such notice may result in penalties under section 25(3)(e), for failure to file
a required report with the Board, and section
13-a
(6)(a) of the Workers' Compensation
Law
(ii) Review with IME
or review of records.
(a) If the insurance
carrier, self-insured employer, or third party administrator wants an
independent medical examination conducted of the claimant or a review of
records in order to respond to the variance request, it shall provide
notification of this decision in the format prescribed by the Chair which may
be electronic within five business days of receipt of the PAR. A final response
to the PAR shall be submitted in the format prescribed by the Chair which may
be electronic within 30 calendar days of receipt of the request.
(b) If the claimant fails to appear without
reasonable cause for an independent medical examination scheduled by the
insurance carrier, self-insured employer or third-party administrator in order
to respond to a PAR, the request for a variance shall be denied. The insurance
carrier, self-insured employer or third-party administrator shall submit the
response to the PAR within 30 calendar days of receipt of the request. Receipt
is determined as provided in clause (a) of this subparagraph. If the claimant
requests review of the denial of the PAR based on his or her failure to appear,
such request for review shall be reviewed by the Board in the manner prescribed
by the Chair. Such request for review of the denial of the PAR shall be
submitted in the manner prescribed by the Chair within 21 business days of
receipt of the insurance carrier, self-insured employer or third-party
administrator 's denial by the claimant. If the claimant requests review of the
denial of the PAR and it is determined that the failure to appear was for
reasonable grounds, the insurance carrier, self-insured employer or third party
administrator will have 30 calendar days from the date of the filing of the
decision to obtain an independent medical examination or 15 calendar days if
proceeding in accordance with paragraph (i) herein, and provide a further
response to the response to PAR.
(3) Insurance carrier, Self-insured employer
or Third party administrator, response to PAR.
(i) The PAR response shall be in the format
prescribed by the Chair and shall clearly state whether the PAR has been
granted, denied, granted with respect to medical necessity but liability for
payment is withheld, or partially granted. If a PAR has been partially granted,
the response shall specify the medical treatment, procedure or test that has
been granted.
(ii) If the insurance
carrier, self-insured employer or third party administrator denies a PAR, it
shall state the basis for the denial in detail and, if for reasons other than
those set forth in clause (2)(i)(b) or (c) or (2)(ii)(b) of this subdivision,
submit with its response the written report of the Carrier's Physician that
reviewed the PAR. When the denial is based on an independent medical
examination, the denial shall identify the independent medical examination
report or review of records report, if already submitted to the Board, by the
document identification number in the electronic case folder and date received
by the Board. The insurance carrier, self-insured employer or third-party
administrator may submit citations or copies of relevant literature published
in recognized, peer-reviewed medical journals in support of a denial of a PAR.
If the insurance carrier, self-insured employer or third-party administrator
concedes the medical necessity of the medical care, it may grant without
liability, only if the case has been controverted in accordance with section
300.22(b)(1)(ii) or
(c)(1) of this Chapter, or the medical care
is for a body part or condition that has not been accepted by the insurance
carrier, self-insured employer or third-party administrator or established by
the Board.
(iii) When a PAR is
denied without review by Carrier's Physician in accordance with subdivision (b)
herein, there shall be no review by the Medical Director's Office. A claimant
may request review by the Board by filing a Request for Further Action, that
demonstrates that the basis for denial is factually inaccurate. The Board may
respond to such requests for review by letter or by referral to adjudication,
as appropriate in the discretion of the Chair or his or her
designee.
(4) If a claim
is controverted or the time to controvert the claim has not expired, and the
insurance carrier, self-insured employer, or third party administrator grants
or partially grants a PAR, such grant is limited to the question of
appropriateness for the claimant and medical necessity, and it shall not be
construed as an admission that the condition for which the PAR is requested is
compensable and the insurance carrier, self-insured employer or third party
administrator is not liable for the cost of such treatment unless the claim or
condition is established.
(5)
Unless the insurance carrier, self-insured employer, or third-party
administrator has properly denied or granted as to medical necessity but
withheld liability for the claim, the carrier may not thereafter object to
payment for such medical care at the fee schedule rate and any such objections
will be rejected by the Board and applicable penalties
imposed.
(c) Request for
review of denial of a PAR. Upon receipt of the denial of a PAR by Carrier's
Physician or by an Independent Medical Examination, the treating medical
provider may request review of the denial by the Medical Director's Office as
set forth in subdivision (d) herein. A request for review of the denial of the
PAR shall be submitted within 10 calendar days of the insurance carrier,
self-insured employer or third-party administrator 's denial. The request shall
be made in the format prescribed by the Chair and provide all information
requested. When a denial is not based on a claimant's failure to appear for an
independent medical examination pursuant to subparagraph (2)(ii)(b) of this
section and the treating medical provider seeks review of such denial, the
treating medical provider may request review of the PAR denial through the
process set forth in paragraph (d) of this section. If the request is not
received by the Board within 10 calendar days of receipt of the denial, the
denial of the PAR will be deemed final. A claimant may request review of a
denial of a PAR by an independent medical examination in accordance with
paragraph (d)(3) herein.
(d)
Process for requesting review of denial of PARs except denials based on the
claimant's failure to appear for an IME.
1.
All requests for review of denials or partial approvals of a PAR by a Carrier's
Physician shall be submitted to the Medical Director's Office in the format
prescribed by the Chair.
2. When a
denial is based on a reason set forth in (b)(2)(i)(b), in addition to a
Carrier's Physician review, the request for review shall be submitted to the
Medical Director's Office.
3. When
a denial or partial approval is based upon an independent medical examination,
the medical provider may request review by the Medical Director's Office unless
a request for further action through adjudication is filed by the claimant. In
the event a decision is rendered by the Medical Director's Office, the claimant
retains the rights set forth in subparagraph (7) herein.
4. The Chair or Medical Director may
designate private entities to evaluate such requests for review of denials by
the carrier's physician provided that the entity has:
i. the appropriate URAC accreditation or such
accreditation/certification as designated by the Chair,
ii. other demonstrated expertise and criteria
established by the Board; and
iii.
no conflict of interest exists in resolving the subject dispute.
5. When a medical provider wishes
to request review of a denial or partial approval of a PAR, the medical
provider shall submit the request to the Medical Director's Office in the
format prescribed by the Chair within 10 calendar days of the denial date
together with all documentation submitted in support of its initial request,
and the denial or partial approval issued following request.
6. A decision by the Medical Director's
Office (or designated accredited entity) is final and binding on the medical
provider, and upon the carrier for issues related to medical necessity. Such
decision shall be binding and not appealable under Workers' Compensation Law
section 23.
7. Notwithstanding
paragraph (5) and (6) herein, a claimant may request review of a Medical
Director's Office decision or a denial by Carrier's Physician by filing a
Request for Further Action that demonstrates that such treatment is medically
necessary. A Request for Further Action following denial by a Carrier's
Physician shall render a request for review by the Medical Provider to the
Medical Director's Office moot. Decision on the denial will be made in
Adjudication. The Board may respond to such requests for review by letter or by
referral to adjudication, including the expedited hearing process, as
appropriate in the discretion of the Chair or his or her designee.
8. If the insurance carrier, self-insured
employer, or third party administrator fails to respond to the PAR, fails to
timely deny the PAR in accordance with subdivision (b) of this section, or,
except if the basis for the denial is one of the reasons set forth in clause
(b)(2)(i)(b) or (c) or subdivision ( a) of this section, fails to submit the
written report, or identify the report in the electronic case folder, the
variance may be deemed approved on the ground that such approval was
unreasonably withheld and the Chair will issue an order stating that the
request is approved and the carrier, self-insured employer or third-party
administrator shall be subject to a penalty pursuant to section
25
(3)(e) of the Workers' Compensation Law. Such
order of the Chair is not appealable under Workers' Compensation Law section
23. When a substantially similar PAR has been submitted in violation of
paragraph (a)(7) of this section, the failure of the carrier, self-insured
employer or third party administrator to timely deny such request shall not
result in the PAR being deemed approved and the Chair is not required to issue
an order stating that the request is approved.
9. When the Chair issues an order as provided
in paragraph (8) of this subdivision in a claim that is controverted or the
time to controvert the claim has not expired, the insurance carrier,
self-insured employer or third party administrator shall not be responsible for
the payment of such medical care until the question of compensability is
resolved and then only if that insurance carrier,, self-insured employer or
third party administrator is found liable for the claim.
Notes
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