Current through Register Vol. 46, No. 12, March 20, 2024
(a) Obligation and liability of employer or
insurance carrier (or third-party administrator) to provide Medical Care.
(1) The employer or insurance carrier (or
third-party administrator) is required to promptly provide the claimant with
such Medical Care, for such period as the nature of the injury, illness, or
occupational disease, or process of recovery may require. Medical Care means
symptomatic, palliative, maintenance treatment, services, or supplies. When the
Medical Care is to or for a part of the body or condition covered by the
Medical Treatment Guidelines as set forth in section
324.2(a)
of this Title, the employer or insurance carrier (or third-party administrator)
is required to provide such Medical Care which is consistent with the Medical
Treatment Guidelines or, if applicable, an approved variance from such
guidelines.
(2) The employer or
insurance carrier (or third-party administrator) is liable for the payment of
medically necessary care, services, and supplies to the claimant when it has
accepted the claim or the claim has been established as compensable by the
Board. When the Medical Care is to or for a part of the body covered by the
Medical Treatment Guidelines and the claim has been accepted or established as
compensable, the employer or insurance carrier (or third-party administrator)
shall be obligated to pay for all Medical Care, in the amount set forth in the
applicable fee schedule, or in any other amount as agreed to by the Treating
Medical Provider and payor, that is:
(i)
within the criteria of the medical treatment guidelines incorporated by
reference pursuant to section
324.2(a)
of this Title and is based on correct application of such guidelines;
(ii) within a proper variance from the
Medical Treatment Guidelines in accordance with the requirements of section
324.3(a)
(2), or has been authorized pursuant to
section
325-1.4
or Part 441of this Title;
(iii)
agreed to by the employer or insurance carrier (or third-party administrator);
or
(iv) as ordered by the Board
pursuant to statute or regulation.
The employer or insurance carrier (or third-party
administrator) 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, except if a variance
has been approved by the employer, insurance carrier (or third-party
administrator), or Board in accordance with section
324.3 of
this Title or as ordered by the Board pursuant to statute or regulation.
(b)
Submission of bills for Medical Care.
(1)
Physicians, podiatrists, chiropractors, psychologists, nurse practitioners,
physician assistants, licensed clinical social workers, physical therapists,
occupational therapists and acupuncturists authorized by the Chair to provide
treatment and care under the Workers' Compensation Law to a claimant or other
legally permitted providers of Medical Care shall submit bills for Medical Care
in the format prescribed by the Chair (which may be electronic) and as set
forth in section
325-1.3
of this Subpart. Bills shall be submitted to the employer or insurance carrier
(or third-party administrator) within 120 days from the day the Medical Care
was rendered. Bills submitted in any other format or outside this time
requirement shall not be eligible for an award by the Chair under the
provisions of the Workers' Compensation Law as described herein. When Medical
Care was rendered prior to January 1, 2020, the bill for such care shall be
submitted within 120 days from January 1, 2020 (April 30, 2020).
(2) Hospitals shall submit bills for
out-patient hospital services to the employer or insurance carrier (or
third-party administrator) using the New York State Universal Data Set
specification as described in 10 NYCRR section 400.18 and Appendices C-2 and
C-3 and such additional specifications as are approved by the Commissioner of
Health. Bills shall be submitted within 120 days from the last day of Medical
Care. Bills submitted in any other format or outside this time requirement
shall not be eligible for an award by the Chair under the provisions of the
Workers' Compensation Law as described herein.
(3) Notwithstanding the foregoing, upon an
application in writing to the Chair, the Chair may for good cause shown excuse
a delay in the submission of the bill to the insurance carrier or employer (or
third-party administrator).
(c) Payment of bills for Medical Care.
(1) The employer or insurance carrier (or
third-party administrator), within 45 days after the bill has been received
shall pay the bill or shall notify the physician, occupational or physical
therapist, podiatrist, chiropractor, psychologist, nurse practitioner,
physician assistant, licensed clinical social worker, acupuncturist, hospital,
or other provider of Medical Care, the claimant and claimant's attorney if
applicable, and the Board in the format prescribed by the Chair (which may be
electronic) for such purpose that the bill is not being paid and the reasons
for non-payment. If the employer or insurance carrier (or third-party
administrator) objects to payment of all or part of the bill for reasons
concerning its legal liability for payment, the legal objections shall be made
in the format prescribed by the Chair for such purpose and submitted to the
physician, occupational or physical therapist, podiatrist, chiropractor,
psychologist, nurse practitioner, physician assistant, licensed clinical social
worker, acupuncturist, hospital, or other provider of Medical Care, the
claimant and claimant's attorney if applicable, and the Board simultaneously
with any other objections to the bill. If the employer or insurance carrier (or
third-party administrator) objects to payment of all or part of the bill for
reasons concerning the value of the treatment performed or the amount billed,
the valuation objections shall be made in the format prescribed by the Chair
for that purpose and submitted to the physician, occupational or physical
therapist, podiatrist, chiropractor, psychologist, nurse practitioner,
physician assistant, licensed clinical social worker, acupuncturist, hospital,
or other provider of Medical Care, the claimant and claimant's attorney if
applicable, and the Board simultaneously with any other objections to the bill.
However, if the only objection is that the amount billed for the particular
Current Procedural Terminology (CPT) code is in excess of the appropriate fee
schedule for the region where the services were provided, the insurance carrier
or employer (or third-party administrator) may instead file its explanation of
benefits form. If the employer or insurance carrier (or third-party
administrator) objects to payment of all or part of the bill for one or more of
the Medical Treatment Guidelines objections set forth in paragraph (7) of this
subdivision, the objections shall be placed in the format prescribed by the
Chair (which may be electronic), along with the basis for the objection, and
submitted to the physician, occupational or physical therapist, podiatrist,
chiropractor, or psychologist, nurse practitioner, physician assistant,
licensed clinical social worker, acupuncturist, hospital, or other provider of
Medical Care, the claimant and claimant's attorney if applicable, and the Board
simultaneously with any other objections to the bill.
(2) If the employer or insurance carrier (or
third-party administrator) objects to only a portion of the bill submitted, it
shall pay the uncontested portion within 45 days and file objections to the
remaining portion as indicated herein.
(3) If the employer or insurance carrier (or
third-party administrator) has not objected in the manner described herein to
the payment of the bill within 45 days of submission, it shall be liable for
payment of the full amount billed up to the maximum amount established in the
applicable fee schedule. The Board shall not review any objection made
thereafter.
(4) Legal, valuation,
and Medical Treatment Guidelines objections shall be made simultaneously in the
format prescribed by the Chair (which may be electronic).
(5) Valuation objections as to the amount of
the bill include, but are not limited to, contentions that the bill is
excessive and not in accordance with the pertinent fee schedule; has not been
properly pro-rated or apportioned between providers; involves concurrent,
duplicative, or overlapping services; uses improper current procedural
terminology codes; is not in accordance with the Ground Rules limitation in the
appropriate official workers' compensation fee schedule; is rendered too
frequently; involves unnecessary or excessive hospitalization; or involves a
physician, occupational or physical therapist, podiatrist, chiropractor,
psychologist, nurse practitioner, physician assistant, licensed clinical social
worker or acupuncturist treating outside the scope of practice.
(6) Legal objections as to the liability of
the employer or insurance carrier (or third-party administrator) to pay
include, but are not limited to, contentions that the claim has been
controverted and liability has not been resolved; prior authorization for the
special medical service was not granted; treatment was not causally related to
the compensable injury; treatment provided was outside of the preferred
provider organization; the medical report was not timely filed or was legally
defective; the medical appliance, program, or provider is not authorized under
the Workers' Compensation Law; or the bill is for evidentiary purposes and not
for treatment. Pursuant to Workers' Compensation Law section 13(a), raising the
issue of liability under Workers' Compensation Law section 25-a is not a valid
legal objection to payment of a bill for treatment. A legal objection that was
not properly raised in response to any applicable prior authorization request
will be denied. The employer or insurance carrier (or third-party
administrator) shall attach or identify the denial made to any applicable prior
authorization request to its legal objection.
(7) The Medical Treatment Guidelines
objections as to the liability of the employer or insurance carrier (or
third-party administrator) to pay are:
(i) the
treatment is not consistent with the Medical Treatment Guidelines and a
variance was not requested or approved by the employer or insurance carrier (or
third-party administrator), or the Board before the Medical Care was
rendered;
(ii) the physician,
podiatrist, chiropractor, psychologist, nurse practitioner, licensed clinical
social worker, or hospital varied from the Medical Treatment Guidelines, the
physician, podiatrist, chiropractor, psychologist, nurse practitioner, licensed
clinical social worker, hospital, or other provider of Medical Care, requested
and received approval for a variance from the employer or insurance carrier (or
third-party administrator) or the Board before the Medical Care was rendered
but provided Medical Care other than what was covered by the variance;
or
(iii) the physician,
occupational or physical therapist, podiatrist, chiropractor, psychologist,
nurse practitioner, physician assistant, licensed clinical social worker,
acupuncturist, hospital or other legally permitted Medical Care provider
misapplied the Medical Treatment Guidelines.
(iv) A Medical Treatment Guideline objection
that was not properly raised in response to any applicable prior authorization
request will be denied. The employer or insurance carrier (or third-party
administrator) shall attach or identify the denial made to any applicable prior
authorization request to its legal objection.
(d) Administrative award: a remedy for
non-payment of bills when no timely valuation objections are raised.
(1) Chair authorized physicians, podiatrists,
chiropractors, psychologists, nurse practitioners, physician assistants,
licensed clinical social workers, acupuncturists, occupational or physical
therapists, and other legally permitted providers of Medical Care, or hospitals
providing services to claimants who have timely submitted bills for payment to
the insurance carrier or employer (or third-party administrator) and who have
not been paid in full or in part or received notice in the format prescribed by
the Chair (which may be electronic) for the purpose of advising of a valuation
reason for non-payment within the time prescribed above, may apply to the Chair
the prescribed format (which may be electronic) for an administrative award
pursuant to the provisions of Workers' Compensation Law sections 13-g(1),
13-k(6), 13-l(6) and 13-m(7). Such request shall be submitted no earlier than
45 days from the date of the submission of the bill or 30 days from the date of
the Workers' Compensation Law Judge or conciliation decision, or if appeal,
Board Panel decision establishing the insurance carrier's or employer's (or
third-party administrator's) liability for the bill, and within 120 days from
the later of:
(i) the date of receipt of
notification of nonpayment; or
(ii)
the expiration of the time within which the insurance carrier or employer (or
third-party administrator) is required to notify the physician, self-employed
occupational or physical therapist, podiatrist, chiropractor, psychologist, or
hospital of nonpayment.
(2) Notwithstanding the foregoing, upon a
written application of the physician, occupational or physical therapist,
podiatrist, chiropractor, psychologist, nurse practitioners, physician
assistants, licensed clinical social workers, acupuncturists, hospital, or
other provider of Medical Care, the Chair may for good cause shown excuse a
delay in the submission of the request for an administrative award
(3)
(i) The
Board will not accept any request for an administrative award until thirty days
after all issues duly and timely raised by the employer or insurance carrier
(or third-party administrator) with respect to its legal liability for payment
and/or any Medical Treatment Guidelines objections set forth in paragraph
(c)(7) of this section have been finally determined adversely to it.
(ii) A provider may only submit one request
for an administrative award for each date of service. A request for
administrative award that includes a date of service that was included on a
previously submitted request for administrative award will be
rejected.
(4) All
requests for administrative awards shall be submitted to the Chair or his or
her designee in the format prescribed for such purpose and certifies the
following information:
(i) the bill was
timely submitted to the employer or insurance carrier (or third-party
administrator) and the bill was not returned;
(ii) the employer or insurance carrier (or
third-party administrator) did not submit payment within 45 days after the bill
was submitted or within 30 days after all questions duly and timely raised
related to the employer or insurance carrier (or third-party administrator)'s
liability therefore was finally determined adversely to it;
(iii) the employer or insurance carrier (or
third-party administrator) did not raise valuation issues in the format
prescribed by the Chair objecting to payment of the bill;
(iv) the bill conforms to the fee schedule,
if any, promulgated by the chair for treatment rendered; and
(v) the bill was submitted in the format
prescribed by the Chair (which may be electronic) and as set forth in section
325-1.3
of this Subpart, or the form prescribed for outpatient hospital bills by the
Commissioner of Health.
(5) The Board will reject incomplete requests
for an administrative award. When information regarding a workers' compensation
claim that is included on a request for administrative award does not match the
information in the Board's electronic case system, the request may be rejected
by the Board and the provider will be directed to review such information with
his or her patient.
(6) Upon
receipt by the Chair or his or her designee of a completed request for an
administrative award, the request shall be examined to determine if it is in
compliance with the requirements of this section. If the request is not in
compliance with the requirements of this section, the request will be rejected
by the Board with an explanation of why the request is being rejected. If the
request is in full compliance with the requirement of this section, a notice of
decision on the Chair prescribed form signed by the Chair or the Chair's
designee will propose an administrative award for the Medical Care rendered not
in excess of the fee schedule, if any, to the authorized physician, podiatrist,
chiropractor, psychologist, occupational or physical therapist, nurse
practitioner, physician assistant, licensed clinical social worker,
acupuncturist, hospital or other provider of Medical Care. The Chair prescribed
form for the notice of decision will be sent to all parties of interest,
notifying them of the proposed administrative award and the proposed filing
date. The proposed filing date shall be at least 30 days after the date of the
proposed administrative award.
(7)
Any party in interest may submit a written objection in the format prescribed
by the Chair (which may be electronic) to the proposed award on or before the
proposed filing date. All documents or other evidence supporting the objection
shall be submitted together with the written objection. If there is no written
objection received prior to the proposed filing date, the proposed award will
become final on the proposed filing date. If an objection is received from any
party before the proposed filing date, the objection shall be reviewed by the
Chair or the Chair's designee, who shall make a decision on the request for an
award based upon the documents and other evidence submitted. Upon review, a
determination on reconsideration shall be sent to all parties in
interest.
(8) Interest on any
administrative award made to a physician, self-employed occupational or
physical therapist, podiatrist, chiropractor, psychologist, nurse practitioner,
physician assistant, licensed clinical social worker, acupuncturist, or other
provider of Medical Care, pursuant to this section shall be paid in accordance
with the provisions of section
300.19
of this Title.
(e)
Arbitration award: a remedy for non-payment of bills when timely valuation
objections are raised.
(1) Chair authorized
physicians, podiatrists, chiropractors, or psychologists, occupational or
physical therapists , nurse practitioners, physician assistants, licensed
clinical social workers, acupuncturists, hospitals or other legally permitted
providers of Medical Care providing services to claimants who have timely
submitted bills for payment to the employer or insurance carrier (or
third-party administrator) in compliance with the provisions herein and have
received a response in the format prescribed by the Chair (which may be
electronic) from the employer or insurance carrier (or third-party
administrator) advising of a valuation reason for non-payment of the bill in
full or in part within the time prescribed in this section, may apply to the
Chair for arbitration the format prescribed if the parties cannot agree as to
the value of the services rendered.
(2) Arbitration shall be requested solely at
the option of the authorized physician, podiatrist, chiropractor, psychologist,
occupational or physical therapist, nurse practitioner, physician assistant,
licensed clinical social worker, acupuncturist, hospital or other provider of
Medical Care.
(3) Notwithstanding
the foregoing, upon a written application of the authorized physician,
podiatrist, chiropractor, psychologist, occupational or physical therapist,
nurse practitioner, physician assistant, licensed clinical social worker,
acupuncturist, hospital or other provider of Medical Care, the Chair may for
good cause shown excuse a delay in the submission of the request for
arbitration.
(4) The Chair will not
accept any request for an arbitration award until thirty days after all issues
duly and timely raised by the employer or insurance carrier (or third-party
administrator) with respect to its legal liability for payment and/or any
Medical Treatment Guidelines objections set forth in paragraph (c)(7) of this
section have been finally determined adversely to it.
(f) Adjudication decision: a resolution for
non-payment of bills when legal objections and medical treatment guidelines are
raised.
(1) If the employer or insurance
carrier (or third-party administrator) objects to payment of all or part of the
bill for Medical Care rendered for reasons concerning its legal liability for
payment and/or the Medical Treatment Guidelines as set forth in paragraph
(c)(7) of this section and raises legal and/or Medical Treatment Guidelines
objections in the format prescribed by the Chair (which may be electronic) for
such purpose as indicated herein, the objection will be reviewed by the Board
and a decision rendered on the issue of legal liability and/or the Medical
Treatment Guidelines objections. The decision shall be filed with the parties
including the authorized physician, podiatrist, chiropractor, psychologist,
occupational or physical therapist, nurse practitioner, physician assistant,
licensed clinical social worker, acupuncturist, hospital or other provider of
Medical Care .
(2) If legal
liability and/or Medical Treatment Guidelines objection for the service is
found in favor of the physician, podiatrist, chiropractor, psychologist,
occupational or physical therapist, nurse practitioner, physician assistant,
licensed clinical social worker, acupuncturist, hospital or other provider of
Medical Care, the employer, insurance carrier (or third-party administrator)
shall pay the bill within 30 days from the filing of the proposed decision or
Notice of Decision unless the employer or insurance carrier (or third-party
administrator) timely submitted a valuation objection simultaneously with its
legal objection(s) to the medical provider's bill.
(3) If the employer or insurance carrier (or
third-party administrator) files an application for review pursuant to Workers'
Compensation Law section 23 from the Notice of Decision finding legal liability
and/or Medical Treatment Guidelines objection in favor of the physician,
podiatrist, chiropractor, psychologist, occupational or physical therapist,
nurse practitioner, physician assistant, licensed clinical social worker,
acupuncturist, hospital or other provider of Medical Care, the employer or
insurance carrier (or third-party administrator) may withhold payment of the
bills up to the amount in dispute until a Workers' Compensation Law Judge or
conciliation decision, or if appealed, a Board Panel decision is rendered by
the Board. If a Workers' Compensation Law Judge or conciliation decision, or if
appealed, a Board Panel decision is filed finding legal liability and/or
Medical Treatment Guidelines objection in favor of the physician, podiatrist,
chiropractor, psychologist, occupational or physical therapist, nurse
practitioner, physician assistant, licensed clinical social worker,
acupuncturist, hospital or other provider of Medical Care, the employer or
insurance carrier (or third-party administrator) shall pay the bill within 30
days from the filing of the Workers' Compensation Law Judge or conciliation
decision, or if appealed, Board Panel decision unless the employer or insurance
carrier (or third-party administrator) timely submitted a valuation objection
simultaneously with its legal objection(s) to the medical provider's bill . A
subsequent application to the Full Board, except for review by the Full Board
of a Board Panel decision which one member dissented from, or to the Appellate
Division of the Supreme Court, Third Department, or to the Court of Appeals on
the issue of legal liability/or Medical Treatment Guidelines objection shall
not operate as a stay of the payment of the bills for medical or hospital
services.
(g) Effective
date. This regulation shall be effective on January 1,
2020.