N.Y. Comp. Codes R. & Regs. tit. 12 § 324.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 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.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 324.3

Amended New York State Register September 11, 2019/Volume XLI, Issue 37, eff. 9/11/2019

Amended New York State Register March 3, 2021/Volume XLIII, Issue 09, eff. 6/7/2021

Amended New York State Register September 21, 2022/Volume XLIV, Issue 38, eff. 9/21/2022

Amended New York State Register March 29, 2023/Volume XLV, Issue 13, eff. 3/29/2023