New York

Rule

Rule

New York Codes, Rules, and Regulations, Title 12, Chapter V

Section

324.3 Variances (PAR: MTG variances)

Subsection Text

(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; and

(11) intrathecal drug delivery (pain pumps) 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 variance 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 Title, or the durable medical equipment fee schedule, as set forth in Part 442 of this Title.

(ii) A PAR must be requested and granted by the carrier, self-insured 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.

(2) The burden of proof to establish that a variance is appropriate for the claimant and medically necessary shall rest on the treating medical provider submitting the PAR.

(3) The treating medical provider requesting a variance shall submit the PAR in the format prescribed by the chair which may be electronic. The treating medical provider shall submit at the same time as the PAR the necessary medical documentation to support the PAR. All questions on the PAR prescribed by the chair must be answered completely, clearly setting forth information that meets the following requirements:

(i) for all variance and special services requests (PAR: MTG variance and PAR: special services):

(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 or special service is appropriate for the claimant and medically necessary; and

(b) a statement that the claimant has been informed that the variance request will be submitted and 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 PAR involves frequency or duration of a particular treatment, a description of the functional outcomes that, as of the date of the PAR, have continued to demonstrate objective improvement from that treatment and are reasonably expected to further improve with additional treatment.

(4) Treating medical providers may submit citations or copies of relevant literature published in recognized, peer-reviewed medical journals in support of a variance request.

(5) Maintenance care.

(i) No PAR is permitted from the maximum frequency and duration of ongoing maintenance care contained in New York Medical Treatment Guidelines.

(ii) The treating medical provider may render or prescribe treatment in accordance with the ongoing maintenance care guidelines contained in, and if not contained in, then consistent with applicable New York Medical Treatment Guidelines when:

(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.

(iii) The maintenance care shall consist of a maximum of 10 visits in any 12-month period when objectively documented in order to maintain functional status, without which a deterioration of function has been previously observed and documented in the medical record. No PAR varying from this maximum frequency is permitted.

(6) If a claim is controverted or the time to controvert the claim has not expired and the treating medical provider needs to request a PAR, he or she must submit the PAR to the insurance carrier, self-insured employer, or third-party administrator who would become responsible in the event the claim is established by complying with paragraphs (1) through (4) of this section.

(7) Resubmission of a PAR.

(i) If a PAR for substantially similar treatment, procedure or test has been previously denied by the carrier, self-insured employer, or third-party administrator, the treating medical provider shall submit the date of such denial and additional documentation or justification in support of a new PAR. A PAR that is substantially similar to any previous request may not be submitted until the carrier, self-insured employer, or third-party administrator has denied any previous PAR.

(ii) In the event that a PAR is submitted before a previous request for substantially similar treatment, procedure or test has been denied, the carrier, self-insured employer, or third-party administrator may submit the denial of the subsequent request without a carrier’s physician’s medical report, or an independent medical examination.

(iii) In the event that a PAR, following denial of a request for substantially similar treatment, procedure or test, is submitted without additional documentation or justification beyond the prior PAR, the carrier, self-insured employer, or third-party administrator may deny the PAR by specifying that a prior request for substantially similar treatment, procedure or test has been denied, and the subsequent request does not contain any additional documentation or justification. Such denial may be submitted without a medical opinion by its carrier’s physician’s medical report, or an independent medical examination.