FEE SCHEDULE NEWS:

• New changes to the DMEPOS fee schedule have been adopted with an effective date of November 1, 2017.

REGULATORY ACTIVITY:

• Posted Bulletin Subject Number .046-998 regarding the 2018 assessment rate.  Pursuant to WCL §151, the Chair of the Workers' Compensation Board (Board) shall annually establish an assessment rate for all employers by November 1 of each year, to be effective January 1 of the subsequent calendar year. For calendar year 2018, the rate shall be 12.1% of the standard premium or premium equivalent. The new rate shall be effective for policies renewing on or after January 1, 2018 and represents a decrease from the 2017 rate of 12.2%. Please contact the Workers' Compensation Board by email at: WCBFinanceOffice@wcb.ny.gov with any questions on the assessment rate.
• NOTICE is hereby given of the following revised rule: Proposed Action: Addition of section 325-1.6 to Title 12 NYCRR. Statutory authority: Workers’ Compensation Law, sections 15(3)(x), 117 and 141 Subject: Impairment Guidelines for Schedule Loss of Use Evaluations. Purpose: Incorporate by reference Impairment Guidelines. Text of revised rule: A new section 325-1.6 is added to Title 12 NYCRR as follows:
• 325-1.6 The Impairment Guidelines for Schedule Loss of Use Determinations
  • a)  All evaluations of permanent impairment for use in a schedule loss of use determination shall be performed in accordance with the Workers’ Compensation Guidelines for Determining Impairment, First Edition, November 22, 2017, effective January 1, 2018, which is herein incorporated by reference. Such evaluations must be completed in the format prescribed by the Chair.
  • b)  Obtaining the Workers’ Compensation Guidelines for Determining Impairment. The Workers’ Compensation Guidelines for Determining Impairment incorporated by reference herein may be examined at the office of the Department of State, 99 Washington Avenue, Albany, New York, 12231, the Legislative Library, the libraries of the New York State Supreme Court, and the district offices of the Board. Copies may be downloaded from the Board’s website or obtained from the Board by submitting a request in writing, with the appropriate fee, identifying the specific guideline requested and the choice of format to Publications, New York State Workers’ Compensation Board, 328 State Street, Schenectady, New York 12305-2318. Information about the Workers’ Compensation Guide-lines for Determining Impairment can be requested by email at GENERAL_INFORMATION@wcb.ny.gov, or by telephone at 1-800-781-2362. The Workers’ Compensation Guidelines for Determining Impairment are available on paper or compact disc. A fee of ten dollars will be charged for the guideline requested in paper format, and a fee of five dollars will be charged for a compact disc. Payment of the fee shall be made by check or money order payable to “Chair WCB.” Revised rule compared with proposed rule: Substantial revisions were made in sections 2, 300.39 and 325-1.6.
• Text of revised proposed rule and any required statements and analyses may be obtained from Heather MacMaster, Workers’ Compensation Board, Office of General Counsel, 328 State Street, Schenectady, NY 12305, (518) 486-9564, email: regulations@wcb.ny.gov
• Data, views or arguments may be submitted to: Same as above.
• Public comment will be received until: 30 days after publication of this notice.

REGULATORY ACTIVITY:

• Posted an emergency rule and proposed amendments to an existing rule in the latest Register.  The emergency rule is WCB-36-17-00003-E Workers' Compensation Board-Option to Self-Insure for Jockey Fund. The purpose of the emergency rule is to allow the option for the Jockey Fund to self-insure for Workers' Compensation Coverage.  The rule proposed amendments to an existing rule (Permanent Impairment Guidelines for Schedule Loss of Use Determinations) is to incorporate Workers' Compensation Impairment Guidelines for determination of permanent impairment.
• Chair Proposes New Permanent Impairment Guidelines: Date: September 6, 2017.  In April 2017, Governor Andrew M. Cuomo signed into law the 2017-2018 Executive Budget, which contained several significant pieces of workers’ compensation reform designed to protect workers while also achieving savings for businesses. Included in the reforms was Workers’ Compensation Law (WCL) § 15(3) (x), which requires new Permanency Impairment Guidelines (“Guidelines”) to be adopted by January 1, 2018. The new Guidelines cover determinations of permanency under WCL § 15(3) (a) through (v), which are also known as scheduled loss of use. As required by law, the Board “published proposed” guidelines on September 1, 2017. Publication in the State Register commences a 45-day comment period (which expires on Monday, October 23, 2017). The Guidelines, along with regulations necessary to implement the Guidelines, are available on the Board’s website (www.wcb.ny.gov).  The publication of these proposed Guidelines on September 1, 2017 allows for a full and robust public comment period, and ensures that the regulatory process (including, if needed, a re-publication and second public comment period) can conclude prior to the mandatory implementation of new Guidelines by January 1, 2018. The Board strongly encourages the public, injured workers, employers, self-insured employers, insurance carriers, third-party administrators, attorneys, medical providers, and labor and business organizations to provide comment. Please submit your comments on or before October 23, 2017 via: Proposed Impairment Guidelines Comments. The Board will evaluate all comments received, and will consider necessary revisions as the process advances. The Board is committed to the timely and successful implementation of guidelines that are, as the legislation states, “reflective of advances in modern medicine that enhance healing and result in better outcomes” [WCL § 15(3) (x)]. It should be noted that these are proposed Guidelines, which are not in effect.  A copy of the announcement is attached.
• Published bulletin number 046-965 regarding changes to the disability benefits claim filing process. The New York State Workers' Compensation Board is making changes to the disability benefits claim filing process to simplify filing and capture more information earlier in the life of a disability benefits claim.  To reduce the number of forms used to file disability benefits claims, the Notice and Proof of Claim for Disability Benefits (Form DB-450) and the Notice of Proof of Claim for Disability Benefits of Unemployed Claimant (Form DB-300) have been combined into a new Form DB-450, entitled Notice and Proof of Claim for Disability Benefits. Claimants will now use the revised Form DB-450 to file all disability benefit claims with the Board or insurance carriers, regardless of their employment status.  To make Form DB-450 easier to complete, the filing instructions have been clarified and information on how to locate the mailing address for submitting the form to the appropriate insurance carrier (or the Board) is included.
• Questions have also been added to the new Form DB-450 to collect the following information earlier in the claim: Whether the claimant's disability was the result of a motor vehicle accident. And if so, did the accident involve a commercial vehicle and is third-party action being taken? The new Form DB-450 is available on the Board's website. Please see: Notice and Proof of Claim for Disability Benefits (Form DB-450). Use of the new Form DB-450 is effective immediately. The old form will continue to be accepted until December 22, 2017.

REGULATORY ACTIVITY:

• Published two new bulletins. Bulletins subject number 150-18.1 Change in Reimbursement to Injured workers for travel by Automobile and 046-976 Attorney/Licensed Representative Withdrawal.
• Posted notice of adoption of two rules one regarding Attorney Fees and Withdrawal of Representation and one regarding Workers' Compensation Benefits for Transportation Network Company Drivers.  Both rules are effective August 30, 2017.  The notice of adoption was published in the New York Register on August 30, 2017.

FEE SCHEDULE NEWS:

• The state has adopted the EAPG (Enhanced Ambulatory Patient Groups) methodology for reimbursement of ASC and OPPS services with an effective date of October 1, 2015.  An update for the EAPG rates effective July 1, 2017 has been posted by NYDOH.
• The state has issued two bulletins Subject Numbers 046-953 and 046-952 regarding updates for 2015 and 2016 Reimbursement Rates for Acute Per Care Inpatient Hospital Rates, Exempt Hospitals, Exempt Units and Detoxification Inpatient Rates. The effective dates are retroactive to January 1, 2015 and January 1, 2016.

REGULATORY ACTIVITY:

• Issued bulletin 046-985 intended to describe the existing legal framework for labor market attachment, and introduce a revision to Form C-258 and a new Form C-258.1. The only significant recent change in the law arises from Part NNN of Chapter 59, Laws of 2017, which, at subpart A, amends Workers' Compensation Law § 15(3)(w) in several ways, including with respect to efforts to demonstrate attachment to the labor market after classification.
• Posted bulletin subject number 187-1 regarding Legal Holidays and Board Closures for 2018.
• The workers' compensation board posted notice of adoption of rule regarding Paid Family Leave.

REGULATORY ACTIVITY:

• Published bulletin subject number 046-949 regarding revisions to Form C=240 Employer's Statement of Wage Earnings.
• Webinar on Timeliness of Controversies: Measuring and Monitoring Payer Performance: The New York State Workers’ Compensation Board held a webinar, Timeliness of Controversies: Measuring and Monitoring Payer Performance, on June 26, 2017, at 1 p.m. and again on June 29, 2017, at 1 p.m.
• Posted emergency rule making regarding Workers' Compensation Benefits for Transportation Network Company Drivers. The two proposed rules add to Part 319 to Title 12 NYCRR. Both proposed rules stated purposes are to clarify which drivers are covered and when they are covered by the black car fund.   The rules were published on June 21, 2017.
• Published bulletin no 046-951 regarding maximum benefits effective July 1, 2017. The maximum weekly benefit rate for workers’ compensation claimants is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor (Workers’ Compensation Law §§ 2(16);15(6)). The Department of Labor reported to the Superintendent of the Department of Financial Services that the New York State average weekly wage for 2016 was $1,305.92. Accordingly, the maximum weekly benefit rate is $870.61 for compensable lost time for workers' compensation claims with dates of accident during the period from July 1, 2017 through June 30, 2018. To view a copy of the bulletin, go to:  http://www.wcb.ny.gov/content/main/SubjectNos/sn046_951.jsp
• Published bulletin number 046-957 regarding an increase in the aggregate trust fund administrative expense multiplier effective July 1, 2017.  The administrative expense component of Aggregate Trust Fund (ATF) deposits for deposits first directed for calculation of the amount to be deposited into the AFT on or after July 1, 2017 is increased to 6% of the present value of the award, to cover 100% of the cost of claims handling, actuarial calculations, and investment management.  Section 27(2) of the Workers’ Compensation Law requires private insurance carriers to deposit the present value of indemnity awards for death and permanent partial or total disability into the ATF. Insurers are also required to deposit “such additional sum as the board may deem necessary for a proportionate payment of expenses of administering such trust fund . . . [.]” Currently a 3% multiplier is applied to ATF indemnity award deposits to calculate the administrative expense component. The result is an additional sum that only covers approximately 50% of the State Insurance Fund’s costs. The administrative expense component of ATF deposits for deposits directed on or after July 1, 2017 is increased to 6% of the present value of the award, to cover 100% of the cost of claims handling, actuarial calculations, and investment management. The Actuarial Tables for Aggregate Trust Fund deposits contained in Special Bulletin 222C should, as of the effective date, use a 1.06 factor for the administrative expense multiplier in Examples 8, 10, and 11.  To view a copy of the bulletin go to: http://www.wcb.ny.gov/content/main/SubjectNos/sn046_957.jsp

FEE SCHEDULE NEWS:

• New changes to the DMEPOS fee schedule have been adopted with an effective date of May 1, 2017.
• The state has released new reimbursement rates for Acute Per-Case Inpatient Hospital Rates, Exempt Hospitals, Exempt Units and Detoxification Inpatient Rates retroactive to January 1, 2017.

REGULATORY ACTIVITY:

• As announced in Subject Number 046-878 Board Adopts New Administrative Review, Full Board Review, and Applications for Board Reconsideration Regulations, the Board adopted new regulations for Administrative Review, Full Board Review, and Applications for Reconsideration effective October 3, 2016. The new regulations repealed §300.13, §300.15 and §300.16 of Title 12 of NYCRR, and adopted a new §300.13.
• New 12 NYCRR 300.13 sets forth the prescribed formatting, completion, service and submission requirements for applications for review and rebuttals filed on and after October 3, 2016. Applications for review and rebuttals that do not meet the prescribed formatting, completion, service and submission requirements may be denied, and rebuttals may not be considered. These requirements do not apply to applications and rebuttals filed by an unrepresented claimant.
• Pursuant to §300.13(b) (1), applications for review must be in the format prescribed by the Chair; this requirement also applies to rebuttals (see 12 NYCRR 300.13[c]). In Subject Number 046-878, the Chair designated Application for Board Review (Form RB-89), and Rebuttal of Application for Board Review (Form RB-89.1), version 09-16, as the prescribed format. The Subject Number advised parties that after December 1, 2016, only the revised forms, Form RB-89 (09-16) and Form RB-89.1 (09-16) would be accepted. Applications submitted after December 1, 2016, using a version other than Form RB-89 (09-16), are not in the prescribed format and will be denied. Rebuttals submitted using a version other than Form RB-89.1 (09-16), after December 1, 2016, will not be considered.
• Revised forms for Application for Reconsideration/Full Board Review (RB-89.2, version 1-17), and Rebuttal of Application for Reconsideration/Full Board Review (Form RB-89.3, version 1-17) are also now available on the Board’s website. For Applications for Reconsideration/Full Board Review filed after May 26, 2017, the Board will only accept version 1-17 forms. This includes the proper form identifier. Applications submitted using the old form or with an incorrect identifier are not in the prescribed format and will be denied. Rebuttals submitted using the old form will not be considered.
• New § 300.13(b)(1) mandates that all applications for review “must be filled out completely,” which means that each section or item of Form RB-89, Form RB-89.1, Form RB-89.2, and Form RB-89.3 is completed in its entirety pursuant to the instructions for each form. A Form RB-89 (09-16), Form RB-89.2 (1-17), Form RB-89.1 (09-16), or RB-89.3 (1-17) is not “filled out completely” when a party responds to sections or items on the form merely by referring to the attached legal brief or other documentation without further explanation. For example, responding to section/item 11 on Form RB-89 (09-16) or section/item 13 on Form RB-89.2 (1-17) by simply stating, “See attached” is not sufficient and the form is not filled out completely. AS OF MAY 26, 2017 ANY APPLICATION FOR REVIEW BY A PARTY OTHER THAN AN UNREPRESENTED CLAIMANT THAT IS NOT FILLED OUT COMPLETELY WILL BE DENIED, AND ANY REBUTTAL FILED BY A PARTY OTHER THAN AN UNREPRESENTED CLAIMANT THAT IS INCOMPLETE WILL NOT BE CONSIDERED (see 12 NYCRR 300.13[b][4][i]).
• As a reminder, appellants and respondents are encouraged to review new 12 NYCRR 300.13 to ensure they comply with all requirements, including the following examples:
  • The Board may deny consideration of applications where the legal brief is longer than eight pages “… unless the appellant specifies, in writing, why the legal argument could not have been made within eight pages. In no event shall a brief longer than 15 pages be considered” (12 NYCRR 300.13[b][1][i]).
  • The Board may deny applications when documents are included (with or attached to the application) that are already in the Board’s electronic case folder at the time the administrative review is submitted (12 NYCRR 300.13[b][1][ii]).
  • The Board may consider additional evidence submitted with the application only if a sworn affidavit, setting forth the evidence, and explaining why it could not have been presented before the Workers’ Compensation Law Judge, is submitted with the evidence. Newly filed evidence submitted without the sworn affidavit will not be considered by the Board (12 NYCRR 300.13[b][1][iii]).
  • Parties must file an application or rebuttal using one of the methods prescribed in 12 NYCRR 300.13(b)(3)(ii), Subject No. 046-878 and this Subject No 046-940; otherwise, the application will be denied and/or the rebuttal will not be considered.
  • Parties that submit duplicate filings may be deemed to be raising or continuing an issue without reasonable grounds, and may be subject to assessments under Workers’ Compensation Law § 114-a(3) (12 NYCRR 300.13[b][3][i]).
• The full text of the new §300.13 is available both on the New York State Register and the Board’s website under Laws, Regulations and Decisions. Forms RB-89 (09-16), RB-89.2 (1-17), RB-89.1 (09-16), and RB-89.3 (1-17) are also available on the Board’s website.

REGULATORY ACTIVITY:

• On September 11, 2016, Governor Andrew M. Cuomo signed legislation that extends workers’ compensation eligibility and benefits for World Trade Center workers (paid workers and volunteers) under Article 8-A. Most notably, the legislation reopens the World Trade Center Registry; extends the deadline period for filing the Registration of Participation in World Trade Center Rescue, Recovery and/or Clean-up Operations (Form WTC-12) from September 11, 2014, to September 11, 2018; and reopens previously time-barred World Trade Center claims and considers them timely.  New York releases Bulletin Subject No. 046-927.

LEGISLATIVE ACTIONS:

• Senate Bill 03353
  The enacted legislation excludes certain musicians or persons who are an executive officer of a corporation who contracts for the musician or person's services from the definition of employee for purposes of the workers' compensation law. Effective Date March 15, 2017.

REGULATORY ACTIVITY:

• Published bulletin 046-919 on February 7, 2017 regarding Transition from Special Funds Conservation Committee to Special Funds Group on all §§ 14(6) and 15(8) Claims Effective January 1, 2017.

FEE SCHEDULE NEWS:

• An updated for the EAPG rates effective January 1, 2017 has been posted by NYDOH.

REGULATORY ACTIVITY:

• Issued bulletin subject number046-909 entitled Form Submission Guidelines.

FEE SCHEDULE NEWS:

• New York Workers’ Compensation Board has posted a notice of Fee Schedule changes for Podiatrists retroactive to February 17, 2014.  Changes are to allow qualified Board-authorized podiatrists to bill codes 27600 – 27745 (excluding 27702, 27703, 27727, 27740 and 27742) as well as 27760 – 27823, 27840 – 27871 and 27888 – 27899 when performing surgical procedures on the ankle.
• New changes to the DMEPOS Fee Schedule have been adopted with an effective date of January 1, 2017 and February 15, 2017.
• The state has adopted the EAPG (Enhanced Ambulatory Patient Groups) methodology for reimbursement of ASC and OPPS services with an effective date of October 1, 2015.
• The state has released new inpatient rates effective January 1, 2015.
• The latest medical fee schedule was effective December 1, 2010.

REGULATORY ACTIVITY:

• Posted three bulletins in November:
  • Bulletin Subject Number 046-896 – New York Workers’ Compensation Board Announces 2017 Assessment Rate
  • Bulletin Subject Number 046-892 – Board Announces New Hearing Purpose for Opioid Weaning Issues
  • Bulletin Subject Number 046-891 – Revised Procedure for Entering Stipulations.
• Pursuant to WCL §151, the Chair of the Workers’ Compensation Board shall annually establish an assessment rate for all employers by November 1st of each year, to be effective January 1st of the subsequent calendar year. For calendar year 2017, the rate shall be 2% of the standard premium or premium equivalent. The new rate shall be effective for policies renewing on or after January 1, 2017 and represents a decrease from the 2016 rate of 12.9%.
• Board Announces New Hearing Purpose for Opioid Weaning Issues.

LEGISLATIVE ACTIONS:

• Assembly Bill 9005
  Enacts into law major components of legislation necessary to implement the state public protection and general government budget for the 2016-2017 state fiscal year; intentionally omitted (Part A); amends Part H of chapter 503 of the laws of 2009, relating to the disposition of monies recovered by county district attorneys before the filing of an accusatory instrument, in relation to the effectiveness thereof (Part B); amends the tax law, in relation to suspending the transfer of monies into the emergency services revolving loan fund from the public safety communications account (Part C); intentionally omitted (Part D); amends chapter 268 of the laws of 1996, amending the education law and the state finance law relating to providing a recruitment incentive and retention program for certain active members of the New York army national guard, New York air national guard, and New York naval militia, in relation to the effectiveness of such chapter (Part E); amends chapter 83 of the laws of 1995 amending the state finance law and other laws relating to bonds, notes, and revenues, in relation to extending the expiration date of certain provisions thereof; amends chapter 1 of the laws of 2005 amending the state finance law relating to restricting contacts in the procurement process and the recording of contacts relating thereto, in relation to extending the expiration date of certain provisions thereof; and amends the state finance law, in relation to allowing the state comptroller to excuse non-material deviations in a procurement, authorizing the commissioner of the office of general services and state agencies to provide unsuccessful offerors a reasonable opportunity for debriefing, increase the threshold for the state comptroller’s approval of certain contracts and clarify the valuation of non-cash contracts by the state comptroller, and the commencement of the restricted period during the procurement process (Part F); amends the workers’ compensation law, in relation to authorizations of assessments for annual expenses, and payment of claims of affected World Trade Center volunteers (Part G); intentionally omitted (Part H); intentionally omitted (Part I); intentionally omitted (Part J); intentionally omitted (Part K); amends the civil service law, in relation to the expiration of public arbitration panels (Part L); amends the state finance law, in relation to the dedicated infrastructure investment fund (Part M); intentionally omitted (Part N); amends the public lands law, in relation to state aid on certain state leased or state owned land (Part O); amends the real property tax law, in relation to property tax benefits for anaerobic digestion of agricultural waste (Part P); amends the executive law, in relation to a mid-year report regarding the contracts awarded to service-disabled veteran-owned businesses; and providing for the repeal of such provisions upon expiration thereof (Part Q); amends chapter 747 of the laws of 2006, amending the state finance law relating to the tribal-state compact revenue account, in relation to the effectiveness thereof; amends part W of chapter 60 of the laws of 2011, amending the state finance law relating to disbursements from the tribal-state compact revenue account to certain municipalities, in relation to the effectiveness  thereof;  and amends the state finance law, in relation to the Niagara Falls underground railroad interpretive center (Part R); amends the legislative law, in relation to extending the expiration of payments to members of the assembly serving in a special capacity; amends chapter 141 of the laws of 1994, amending the legislative law and the state finance law relating to the operation and administration of the legislature, in relation to extending such provisions (Part S). Effective Date – Multiple effective dates however the part of the legislation that addresses workers compensation fund transfers Part G became effective on April 13, 2016.