David M. Barshay
As we recently reported in our No-Fault Insurance Law Wrap-Up (NYLJ, Oct. 10, 2018), on April 17, 2018, the New York State Worker’s Compensation Board (WCB) announced proposed changes to the WCB Medical Fee Schedule. Those proposed changes were published on June 6, 2018. Public comments were submitted to the WCB, and on Oct. 3, 2018, the WCB issued responses to the public comments together with revised proposed changes to the Fee Schedule. According to the WCB, the purpose of these proposed changes is “to increase provider participation in the workers’ compensation system and improve injured workers’ access to timely, quality medical care.” (WCB Bulletin, Subject No. 106-0458, April 17, 2018).
The WCB Fee Schedule, with appropriate modifications, applies to no-fault insurance medical claims. Ins. Law §5108; 11 NYCRR 68.1(a). “The general instructions and ground rules in the workers’ compensation fee schedules apply to no-fault insurance claims, but those rules that refer to workers’ compensation claim forms, pre-authorization approval and dispute resolution guidelines do not apply, unless specified in this Part.” 11 NYCRR 68.1(b)(1). Additionally, the WCB Medical Treatment Guidelines (MTG), which establish what kinds of treatments are compensable and the duration or frequency of care, apply only to work-related injuries and not to no-fault claims. See, e.g., WCB responses to Public Comments published in the NYS Register, November 24, 2010 (“Medical Treatment Guidelines … will not apply to No-Fault.”); N.Y. State Assembly Majority’s position paper on Worker’s Compensation/No-Fault, Section VI, P. 16. Thus, with certain exceptions, changes to the WCB Fee Schedule will affect not only worker’s compensation claims, but no-fault automobile accident claims as well.
Following is a synopsis of several of the major changes contained in the proposed amended Fee Schedule most likely to affect automobile accident victims and their health care providers seeking reimbursement for provided treatment.
Physical Therapy Treatment Limited to 12 Visits/180 Days: The current Physical Medicine Section, Ground Rule 2, requires a physician’s certification to continue physical therapy beyond 12 treatments or 45 days from the first treatment. In what is no doubt a complete surprise to medical providers, attorneys and insurers, the WCB, in its second draft of the Fee Schedule issued Oct. 3, 2018, amended Ground Rule 2 to prohibit physical therapy beyond 12 sessions or visits and beyond 180 days after the first such visit, regardless of whether the services are necessary for the patient’s treatment. The proposed amended Physical Medicine Section of the Chiropractic Fee Schedule would similarly prohibit chiropractors from performing any physical medicine or chiropractic manipulation treatment beyond 180 days after the accident or illness. It should be noted these proposed amendments did not appear in the earlier draft issued June 6 of this year, nor were they discussed in the WCB assessment of public comments to the earlier draft.
Daily Treatment Limits (Increased or Reduced?): Under the current Fee Schedule, reimbursement for physical therapy services is limited to eight Relative Value Units (RVU) per day. A similar “8 unit” restriction applies to chiropractors, as well. The question of whether the 8 unit cap limits the care received by the patient, or that rendered by each individual specialty (chiropractic vs medical) has been a subject of some dispute. Most no-fault arbitrators and judges have at least partially awarded reimbursement to chiropractors even where the medical provider has received payment for 8 units. The WCB Assessment of Public comments to the 2010 amendments (N.Y State Register, Volume XXXII, Issue 47, Nov. 24, 2010) arguably supports these awards. Moreover, an informal WCB letter suggests that reimbursement for services that are exclusively within the discipline of chiropractic care may not be withheld on account of payment to a physical medicine provider.
The WCB has now proposed to increase the daily RVUs from 8 to 12. A similar increase in RVUs when an evaluation is performed the same day as treatment (i.e., from 13.5 RVUs for an initial and 11 for a follow-up evaluation to 18 and 15 respectively) is also proposed. However, a clause was added in both the Physical Medicine section and the Chiropractic Physical Medicine section that arguably would cap daily reimbursement to 12 units regardless of whether two different providers (chiropractor and physical therapist) are performing different treatment to different body parts. Some practitioners argue this new clause, which did not exist before, conflicts with current law, as stated above.
Elimination of Certain Chiropractic Services: The WCB has proposed a new Ground Rule 10 to the Chiropractic Fee Schedule, which would seemingly prohibit chiropractors from utilizing billing codes outside the Chiropractic Fee Schedule, regardless of whether the chiropractor is licensed and qualified to perform the service. A similar provision has been proposed for the Podiatry and Psychology Fee Schedules. For example, manipulation under anesthesia (MUA), which is frequently performed by chiropractors with special certification, is contained in the Surgery section of the fee Schedule, not in the Chiropractic Fee Schedule and therefore, under this proposed ground rule, a chiropractor would not be permitted to bill for his/her service.
The WCB received a number of comments and inquiries on this proposed change, and its response was as follows: “It is not a new rule as chiropractors are currently prohibited from billing outside of the Chiropractic Fee Schedule in Workers’ Compensation cases” and “Manipulation under anesthesia is not recommended under the Medical Treatment Guidelines. Accordingly, no changes have been made in response to these comments.” (Assessment of Public Comment Oct. 3, 2018). The problem with these responses, some say, is that they do not address the impact this change will have on no-fault insurance claims. The sections of the Fee Schedule are “for structural purposes only” and are not intended to limit the type of service a licensed medical practitioner can perform and bill. As Chiropractors and other medical providers billing for no-fault claims have pointed out, as long as they are licensed and qualified to perform a service, they are not prohibited from billing for a service not listed in their particular specialty’s fee schedule for no-fault claims. Moreover, as discussed above, the MTG do not apply to no-fault claims and therefore, any restriction on the performance of a particular service or the frequency of treatment contained in the MTG would have no bearing on no-fault claims. Logically, one might ask, if this new ground rule’s purpose is to confirm the status quo based on rules and procedures unique to worker’s compensation claims, is the application of this rule limited to worker’s compensation claims, and, is it necessary at all?
Conversion Factor Increases: The regional conversion factors for multiple specialties in all geographical regions in New York will increase. As the fee for a particular service is calculated by multiplying the applicable conversion factor by the relative value for that service, an increase in the conversion factor will result in in an increase in fees for medical providers billing for worker’s compensation and no-fault claims. According to the WCB Regulatory Impact Statement, an overall fee increase of 5 percent is expected, with some providers receiving a higher increase. However, some practitioners argue that some increases resulting from the increased conversion factors will be offset by the other changes cited above.
Other proposed amendments include Radiology Ground Rule 2(f) (The multiple radiology procedure reduction would now apply to services performed within seven days of each other instead of proximate dates), Medicine Ground Rule 3 (parameters for the performance of certain electrodiagnostic testing) and changes to several CPT codes.
The Oct. 3, 2018 draft of the proposed Fee Schedule changes may be viewed at: http://www.wcb.ny.gov/content/main/hcpp/FeeSchedules.jsp.
The WCB is now accepting public comments to the proposed Fee Schedule changes, which may be sent to regulations@wcb.ny.gov, although there has been some confusion as to when the comment period ends. The October 3 publication in the State Register indicated the comment period would be open for 30 days, or until Nov. 2, 2018, although on its website, the WCB asks that comments be submitted “on or before November 1, 2018.”
David M. Barshay is a member of Sanders Barshay Grossman in Garden City. Steven J. Neuwirth, a member of the firm, assisted in the preparation of this article.