On December 1, 2010, 12 N.Y.C.R.R. § 324, known as the Medical Treatment Guidelines, became effective. See, 12 N.Y.C.R.R. § 324. The Medical Treatment Guidelines [hereinafter “Guidelines”] became effective on December 1, 2010. 12 N.Y.C.R.R. § 324. The Guidelines specifically limit the amount, frequency, and treatment that can be provide to a claimant in a workers’ compensation claim and the procedure to follow when treatment falls outside the Guidelines. 12 N.Y.C.R.R. § 324. Pursuant to the Guidelines a treatment provider, when it is determined that care which varies from the treatment guidelines is appropriate and medically necessary for the claimant, must file a variance for treatment sought from the Carrier or Special Fund. 12 N.Y.C.R.R. § 324.3. In fact, 12 N.Y.C.R.R. § 324.3 is explicit:
A variance must be requested before medical care that varies from the Medical Treatment Guidelines is provided to the claimant and a request for a variance will not be considered if the medical has already been provided.
12 N.Y.C.R.R. § 324.3(a)(1). Further pursuant to 12 N.Y.C.R.R. 325-1.25, “the employer or insurance carrier shall not be obligated to pay for any medical care that is not within the criteria of the Medical Treatment Guidelines or is not based on correct application of the Medical Treatment Guidelines.” See, 12 N.Y.C.R.R. 325-1.25.
Under 12 N.Y.C.R.R. § 324.3(a)(2) the Burden of Proof for demonstrating that the claimant requires the treatment rests with the treating medical provider. To make the requisite demonstration the medical provider must indicate on the variance that:
(i) for all variances:
(a) a medical opinion by the Treating Medical Provider, including the basis for the opinion that the proposed medical care that varies from the Medical Treatment Guidelines is appropriate for the claimant and medically necessary, and
(b) a statement that the claimant agrees to the proposed medical care, and
(c) an explanation of why alternatives under the Medical Treatment Guidelines are not appropriate or sufficient; and
(ii) for appropriate claims:
(a) a description of any signs or symptoms which have failed to improve with previous treatments provided in accordance with the Medical Treatment Guidelines; or
(b) if the variance involves frequency or duration of a particular treatment, a description of the functional outcomes that, as of the date of the variance request, have continued to demonstrate objective improvement from that treatment and are reasonably expected to further improve with additional treatment.
See, 12 N.Y.C.R.R. § 324.3(a)(3).
Further, the guidelines make clear that under the June 30, 2010, First Edition, guidelines for low back § D.10.a.i that:
Manipulation is recommended for treatment of acute and sub-acute back pain when tied to objective measures of improvement.
Time to produce effect for all types of manipulative treatment: 1 to 6 treatments.
Frequency: Up to 3 times per week for the first 4 weeks as indicated by the severity of involvement and the desired effect, then up to 2 treatments per week for the next 4 weeks with re-evaluation for evidence of functional improvement or need for further workup. Continuance of treatment will depend upon functional improvement.
Optimum Duration: 8 to 12 weeks.
Maximum Duration: 3 months. Extended durations of care beyond what is considered “maximum” may be necessary in cases of re-injury, interrupted continuity of care, exacerbation of symptoms, and in those patients with comorbidities.
(Emphasis Added). Medical Treatment Guidelines, First Edition, June 30, 2010, page 49.
What constitutes a well-documented exacerbation has been further clarified in Matter of Livingston County, 2011 (NY WC Case No. 7990538). In Matter of Livingston County the Board made clear that in order for a provider to demonstrate a well-documented exacerbations under the medical treatment guidelines the provider must document: (1) when and how the exacerbation occurred; (2) objective changes from the baseline function; (3) expected type and frequency of treatment believed necessary to return the patient to baseline function; and (4) the response to treatment through measures of objective functional improvement.
What this means is that if a variance is not sought after 12 weeks of treatment the doctor must show that there is an exacerbation or another basis such as a comorbidity that warrants the treatment beyond the initial 12 weeks. If the medical reports fail to list the criteria as outlined by Livingston County above, file C-8.1s as the provider has failed to adhere to the MTGs.
The amendments to the Medical Treatment Guidelines of 1/14/13, as effective 3/1/13, allowed for a maintenance program for chiropractic treatment. See, D.10.a.ii. Recent amendments to the Regulations and the Guidelines allow ongoing maintenance care in specific situations after “(A) the Board has made a legal determination that the claimant has a permanent disability, or (B) a medical provider submits a medical opinion evidencing that the claimant has reached maximum medical improvement and has a permanent impairment, in the format prescribed by the Chair for such purpose, and the Board has not yet made a legal determination on maximum medical improvement or permanent disability.” 12 NYCRR § 324.3(a)(5)(ii). Once specific criteria have been met the claimant would be eligible for a maximum of up to 10 visits per year.
The requirements for satisfying the maintenance care program of spinal manipulation is delineated at § D.11. Pursuant to § D.11 the claimant must be at maximum medical improvement and
- Specific objective goals are identified and measured;
- Longer trials of withdrawal are attempted to ascertain whether therapeutic goals can be maintained;
- Within a year and annually thereafter, a trial without maintenance treatment should be instituted;
- ongoing patient self-management program to encourage physical activity and/or work activities despite residual pain, with the goal of preserving function;
- self-directed pain management plan should be developed which can be initiated by the patient in the event that symptoms worsen and function decreases.