Variance under the new Medical Treatment Guidelines
A variance is a license to do something that varies from the MTG (Please read my post on the MTG). A treating medical provider must request this approval from the carrier. A variance request must be made even if the claim is controverted or the time to controvert the case has not yet expired.
A variance request must be made before treatment is provided that differs from the Guidelines. Requests made after treatment that differs from the MTG has already been provided will not be considered.
A variance will be sought in four circumstances:
- EXTRA-MTG: The treating doctor believes that the claimant would benefit from medical care that is not within the MTG;
- NOT RECOMMENDED BY THE MTG: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not recommended;
- NOT YET RIPE: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not specified at that point in the claimant's treatment; or
- FREQUENCY: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but exceeds the maximum number or frequency limit for that particular treatment.
It is possible for attending doctors to request treatment which is not addressed specifically in the MTG. In those cases, the attending doctor is not seeking a variance from the Guidelines as much as they are asking for permission to do something not contemplated by the MTG. In those cases, the attending doctor must show the same proofs as a doctor seeking simple variance. See N.Y.C.R.R. Section 324.5.
If more than one Treating Medical Provider needs a variance for more than one procedure or test at the same time, Form MG-2.1 should be used. The MG-2 form must be transmitted the same day to the WCB, the carrier, the claimant, and claimant's attorney. Form MG-2 must be sent by either email or fax - mail is acceptable only if the provider does not have fax or email capabilities. N.Y.C.R.R. Section 324.3(a)(3). This is likely to cause problems as the attending doctor is unlikely to have an email address for the claimant or the claimant's attorney. All carriers are required to designate a 'qualified employee' to receive these requests and the WCB is publishing all of the 'qualified employees' contact info on the WCB website.
The medical provider requesting the variance has the burden of proof to show that the treatment requested is appropriate and medically necessary for the claimant. N.Y.C.R.R. Section 324.3(a)(2). The attending doctor requesting the variance must provide:
- the basis for the opinion that the specified treatment or test is appropriate and is medically necessary;
- a statement that the claimant agrees to the proposed medical care;
- an explanation why alternatives contained within the Guidelines are not appropriate or sufficient; and
- any signs or symptoms which failed to improve with treatment provided in accordance with the Guidelines; or
- the objective improvements made by particular treatment and the expected improvements with more of the same treatment. See N.Y.C.R.R. 324.3(a)(3).
Insurance Carrier Actions
Each carrier is required to designate a 'qualified employee' who the WCB may contact about any variance requests. The WCB then publishes these contacts on its website. This should aid the treating physicians with identifying who to send the request for variance to.
Upon receipt of a variance request the carrier must decide if it will obtain an IME or review of the records report. If the carrier is going to obtain an IME or records review, the WCB must be notified within 5 business days of receipt. (Receipt of variance is calculated as 'same day' if email or fax transmission is used; if sent by mail then receipt is 5 business days after treating doctor certified it was mailed). The carrier notifies the WCB that they are obtaining an IME or records review by completing Section "D' of the MG-2 form.
If the carrier decides not to get an IME or records review, then the carrier must transmit its response within 15 calendars after receipt of the variance request. If the carrier has selected to get an IME or records review, the response is due within 30 days from receipt of variance request. Obviously, this creates an enormous burden for carriers: it will be a challenge to get an IME scheduled and completed and a report generated and reviewed within 30 days from receipt of a variance request. One response to this time challenge may be to get examining physicians to set one day aside per month for these 'emergent' variance review IMEs.
The possible responses to a variance request are:
- Denial. Remember to issue a denial even if you have already filed a C-7 to controvert the case - controverting the case is not enough - the WCB can rule on variance requests where no denial was issued.;
- "Grant without prejudice." This is only available if the claim has been controverted or the time to controvert the claim has not yet expired.
- Do nothing. if this happens (you do not respond within the time limitations) the Chair will issue an Order of the Chair. This decision will likely result in an approval of the variance. An Order of the Chair issued under these circumstances (untimely or no response) is not subject to an appeal under WCL Section 23.
The carrier must explain any denial of requested variance in Section "E" of Form MG-2. Any reason for denial that is not raised is deemed waived. The possible grounds for denial are:
- The medical care requested has already been rendered (if the request was submitted after treatment already rendered, an IME or records review is not necessary, See N.Y.C.R.R. 324.3(i)(b));
- The Treating Medical Provider did not meet the burden of proof (appropriateness and medical necessity);
- The treatment requests is not medically necessary or appropriate for the claimant - this would be coming from your IME or records review; or
- The claimant failed to appear for the scheduled IME examination. In this situation, the WCB may extend the time for IME by thirty days. See N.Y.C.R.R. 324.3.
- Have the case reviewed by its own medical professional, independent medical examiner, or records reviewer;
- Attach the written report of its own medical professional, independent medical evaluator, or records reviewer;
- Submit citations to peer-reviewed medical journals in support of the denial (if such articles formed the basis of the denial).
There are three pathways for resolution to a denied variance request. The first path to resolution is 'informal' discussions between the medical care provider seeking the variance and the carrier. The parties have 8 business days to attempt an informal resolution - and if the dispute can be resolved, the insurance carrier confirms the agreement by completing Section "G" ('Carrier's Granting of Attending Doctor's Variance Request after Initial Denial').
If 'informal' resolution fails, the treating doctor notifies the claimant and claimant's counsel. The claimant can then seek review of the denial by the Board. If the claimant decides to request review, a request for review must be filed within 21 business days of the receipt of denial (once again, 'receipt' is deemed the date of transmission of the denial was sent via fax or email and 5 business days of the denial was sent via mail). If the claimant is represented, the request for review must be on the Form MG-2 (Section F). if the claimant is not represented, the request for review must be in writing (but does not have to be on Form MG-2).
When informal resolution fails and the claimant requests a review, there are two pathways the review can take:
- Submission to a medical arbitrator if both
parties agree in writing to the submission; or
- By a Workers' Compensation Law Judge through the expedited hearing process ("Rocket Docket").
The carrier may also elect either expedited hearing or medical arbitration - but in the case of arbitration the claimant must agree to it. The 'default' position is that if the carrier makes no election, the case will be set down for expedited hearing.
Medical Arbitrator Process
By agreeing to have the denial of waiver decided by a medical arbitrator, the parties give up the right to an expedited hearing and accept a final decision that CANNOT be appealed under WCL Section 23 (so don't file an RB-89 if you are unhappy with the outcome!). The review is conducted without participation of the parties - the arbitrator reviews the request for review, variance request, and denial (and all papers including medical reports, IMEs or record reviews, and articles from peer-reviewed journals). The Medical Arbitrator then issues a notice of resolution setting forth the ruling and the basis for the ruling.
Expedited Hearing Process
The expedited hearing will be held within 30 days after the period of informal resolution has ended and the matter could not be resolved informally. One or both parties must request the expedited hearing (or not waive the right to expedited hearing). Medical testimony will be taken. If the claimant is unrepresented then medical testimony is always taken at the hearing. if the claimant is represented, then medical testimony may be by submission of deposition transcripts at the hearing (the transcripts must be submitted to the WCB at or before the expedited hearing). Adjounrments are possible, but only for up to 30 days and only for cases in involving complex medical issues of causation or diagnosis.
Which Should I choose: Medical Arbitrator or Expedited Hearing?
At the time of this writing (November 2010) there is no way of knowing which of the the formal paths to resolution will work most to the favor of the carrier. However, I Director recommend that medical arbitration be considered. Why? Because the medical arbitration is conducted by the offices of the Medical Director. The Medical Director was behind the new Medical Treatment Guidelines, so if a 'strict' interpretation of the MTG is desired, one would hope the party that had a large hand in drafting the new MTG would be inclined to affirm the medical treatment paths under the MTG.
Ultimately, the choice will reside with the claimants: unless the claimants agree to medical arbitration, the matter goes to expedited hearing.
Important timelines for variance requests:
- 5 (five) business days to respond if obtaining an IME;
- 15 (fifteen) days for a final response if not obtaining an IME;
- 30 (thirty) days for a final response along with a copy of the IME;
- 8 (eight) business days to discuss denial informally;
- 21 (twenty one) business days for claimant to request review.
Questions? Contact me.