Denying Medical Treatment Guidelines Variance Requests: What Carriers Need to Know

Effective December 1, 2010, treatments for injuries to the mid and lower back, neck, knee and shoulder are governed by the Medical Treatment Guidelines (“MTG”) in New York State.  12 N.Y.C.R.R. 324.2.  Amendments were made to the existing MTG, and guidelines for carpal tunnel syndrome, as well as ongoing maintenance care guidelines were incorporated effective March 1, 2013.  On December 15, 2014, further amendments were made to the MTG, and guidelines for non-acute pain were also incorporated.

The MTG simply lays out recommended treatment for the injuries that it governs.  However, there are times when the medical provider believes treatment that varies from the MTG is medically necessary for the claimant.  In such a situation, the medical provider must submit a proper request for authorization of varying treatment. 12 N.Y.C.R.R. 324.3.  The request for authorization must be made using the MG-2 and MG-2.1 forms, and must be done prior to rendering the treatment.  The provider is not allowed to submit a request after the treatment is rendered.  In addition, the medical provider has the burden of proving that the varying treatment is medically necessary.

It is important that the carrier properly denies a treatment variance request in order to increase the chances of it being upheld by the Board.  If the carrier will not be obtaining an IME or Peer Review, it must respond to the MG-2 request within fifteen (15) calendar days.  If an IME or Peer Review is being obtained, the carrier must notify both the medical provider and the Board within five (5) business days that it will be obtaining an IME or Peer Review.  However, the carrier has thirty (30) calendar days from the date of receipt of the request to obtain the IME or Peer Review.  If the denial is not timely submitted, the treatment will most likely be deemed authorized.

It is highly recommended that the carrier submits supporting medical records when denying a treatment request.  However, in situations where the carrier is asserting that the provider has not met the burden of proof, the treatment has already been rendered, the treatment is not related to the work injury, the claimant did not appear for a scheduled Independent Medical Examination (IME), or a prior similar or identical variance request has already been made, the carrier is not required to submit supporting medical records.

On many occasions, the medical provider fails to meet the burden of proving medical necessity, and this is an effective way to deny a variance request.  In submitting the request, the medical provider must provide a basis for his opinion that the requested treatment is necessary, an indication that the claimant has agreed to the requested treatment, and reasons why alternative MTG-approved treatment is not sufficient.  In certain situations, the medical provider must also indicate particular signs or symptoms that failed to improve with MTG-approved treatment, and the expected functional outcome of the requested treatment.  If the medical provider has not supplied all of this information in his request, the carrier can deny same for failure to meet the burden of proof.

The carrier can also deny the request based on an IME or Peer Review opinion.  For this type of denial, supporting medical records must be submitted.  It is generally recommend that if the requested treatment is substantial or costly, that an IME be obtained.  The up-side in obtaining an IME is that it is more credible in the event that the doctor has to be cross-examined, as the IME doctor actual examines the claimant.  However, one of the challenges with obtaining an IME opinion is the timeliness of same, as it is oftentimes difficult to find an available IME doctor within thirty (30) days.  While this issue is sometimes given consideration by the Board, it is a rare occurrence.  Therefore, as soon as the carrier realizes that it may not be able to obtain a timely IME, it should immediately try to obtain at least a Peer Review opinion.  And, depending on the type of treatment that is at issue, the carrier may also want to consider still scheduling the IME, even if it is outside the thirty (30) day period.

Timely and proper denials are crucial in reducing the number of unnecessary treatment that the carrier ultimately becomes responsible for.  Taking immediate action, reviewing the medical evidence submitted in support of the request, and submitting the denial within the prescribed deadline are a must to cut off unnecessary treatment.

Tashia Rasul is an Partner at Lois LLC where she defends employers and carriers in New York workers’ compensation claims. Tashia chairs the Firm's Diversity Committee and is active in the national Alliance of Women in Workers' Compensation. She can be reached directly at trasul@lois-llc.com or 201-880-7213.