REGULATORY ACTIVITY:

• Published notice in the state register of amendments to rules regarding the Jockey Fund and its option to self-insure.
• Posted two notices in the state register on December 27, 2017, an adoption notice and a proposed rule notice. The adoption was for Impairment Guidelines for Schedule Loss of Use Evaluations. These rules become effective January 1, 2018.  The proposed was for the establishment of a prescription drug formulary.

REGULATORY ACTIVITY:

• The Board has published a COVID-19 & Workers’ Compensation Q&A document to answer questions about workers’ compensation benefits to employees who get COVID-19 while on the job. This Q&A is available on the Board’s website located at http://www.wcb.ny.gov/covid-19/. FOR EMPLOYEES:  If you believe you became ill with COVID-19 due to your  work, you should tell your employer as soon as possible, file an Employee Claim (Form C-3) with the Board, and see a doctor to obtain a diagnosis. For more details, please see the How Do I File a Claim? Section. FOR EMPLOYERS:  If a worker reports that they are sick due to a workplace exposure, you must contact your workers’ compensation insurance carrier immediately. The insurance carrier then has 18 days to act on the claim and must begin paying benefits within this time frame if the claim is accepted. Please share this information with your employees.
• The Chair proposes the amendment of 12 NYCRR 300.22 and 300.23, to update the regulations for clarity, and to reflect updates to the eClaims system which incorporate the national standard EDI version 3.1. The Notice of Proposed Rule Making was published in the June 10, 2020 edition of the State Register Link to External Website. Comments regarding the revised proposal will be accepted for 60 days after publication. Please submit comments by emailing regulations@wcb.ny.gov. To view this notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1305.jsp.  To view a copy of the proposed rule, go to http://www.wcb.ny.gov/content/main/wclaws/12NYCRR300_22-300_23Eclaims/.
• The Chair proposes the amendment of 12 NYCRR 325-1.3 to change "physicians" to "treating providers" to conform to the expanded provider law. This amendment also clarifies that the prescribed format for submitting reports may be electronic and allows carriers, self-insured employers, and TPAs to designate a single mailing address for medical reports and bills. The Notice of Proposed Rule Making was published in the June 10, 2020 edition of the State Register Link to External Website. Comments regarding the proposal will be accepted for 60 days after publication. Please submit comments by emailing regulations@wcb.ny.gov.  To view this notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1304.jsp.  To view a copy of the rule, go to http://www.wcb.ny.gov/content/main/wclaws/12NYCRR325-1_3TreatingProviders/.
• The Chair proposes a rulemaking to add two new Medical Treatment Guidelines (MTG): Hand, Wrist and Forearm Injuries and Occupational/Work-Related Asthma. The proposed Hand, Wrist and Forearm Injuries MTGs contain treatment recommendations for carpal tunnel syndrome and will replace the current Carpal Tunnel Syndrome MTG upon becoming effective. The Notice of Proposed Rule Making was published in the June 10, 2020 edition of the State Register. Comments will be accepted for 60 days from publication in the State Register. Please submit comments by emailing regulations@wcb.ny.gov. To view a copy of this notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1303.jsp.  To view a copy of the rule, go to http://www.wcb.ny.gov/content/main/wclaws/12NYCRR324_2AsthmaHandWristForearmMTG/.
• COVID-19 Bulletin from the Medical Director's Office: This bulletin addresses the current knowledge, assessment, and treatment of COVID-19 for affected workers in New York State. This bulletin provides information for injured workers, providers, and carriers. Because clinical information about the optimal management of COVID-19 is evolving quickly, additional bulletins may be issued as disease patterns and treatment options are further developed.
• The New York State Workers’ Compensation Board announced the hiring of Brian Gordon, M.D., and James A. Tacci, M.D., J.D., M.P.H., (FACOEM, FACPM), who will be joining the Board’s Medical Director’s Office. Dr. Gordon will serve as Medical Director and Dr. Tacci as the Board’s Executive Medical Policy Director. In their new roles, Drs. Gordon and Tacci will oversee medical issues at the Board, with a key focus on ensuring high quality care and outcomes for injured workers. They will advise on the Board’s Medical Treatment Guidelines, NYS Workers’ Compensation Drug Formulary and medical fee schedules for provider reimbursement; issue medical opinions for complicated, disputed workers’ comp cases; provide expertise to Board leadership on important medical subjects; and help direct training for Board-authorized providers. “We are extremely excited to welcome Drs. Gordon and Tacci to the Board,” said Chair Clarissa M. Rodriguez. “The depth of their knowledge and the breadth of experience they bring to the Board will help further our mission of getting injured workers the medical care they need to heal quickly and get back to work safely. The Board looks forward to the valuable contributions Drs. Gordon and Tacci will undoubtedly make as we continue striving to be better for workers and better for business.” Dr. Gordon joined the Board on May 4, coming from St. Peter’s Hospital’s Spine and Neurosurgery Center, where he had been serving as the Medical Director, as well as a practicing orthopedic spine surgeon. Before St. Peter’s, Dr. Gordon was a Managing Partner at New York Spine and Neurosurgery. He is also a diplomat of the American Board of Orthopedic Surgeons and the National Board of Medical Examiners. Throughout his career, Dr. Gordon has been active in both the operative as well as non-operative treatment of cervical, thoracic, and lumbar spinal conditions. Dr. Gordon also has extensive experience in government. He was a member of the Schenectady County Legislature and has served as a consultant to the NYS Attorney General’s Office, the US Department of Justice, the NYS Department of Health Office of Professional Medical Conduct, and as an arbitrator for the Board’s Medical Director’s Office. Dr. Tacci will join the Board on August 3, bringing a combination of medical and legal expertise. Most recently he’s served at the University of Rochester Medical Center (URMC) as an attending physician and Associate Professor of Occupational and Environmental Medicine at Strong Memorial Hospital; Program Director of the Department of Public Health Sciences, General Preventive Medicine & Public Health Residency Program; and Medical Director for the URMC Travel Medicine/Passport Health Clinics in Rochester and Syracuse. Additionally, Dr. Tacci is an Attorney of Counsel at the law firm Barclay Damon, LLP, and is an independent consultant on medico-legal issues. Tacci’s clinical practice includes comprehensive occupational medicine services for University of Rochester employees, as well as hundreds of local and regional employers. His work has included comprehensive management of work-related injuries and illnesses; complex determinations regarding diagnosis, causation, treatment, and return-to-work capabilities; and on-site consultative activities for various medium-to-large employers. His work in the field of law has involved health and human services; professional malpractice; corporate and business transactions; and labor and employment law. Since 2007, Dr. Tacci has served on the Board’s Medical Treatment Guidelines Task Force, and later its Medical Advisory Committee, and has participated in the drafting of all our current medical treatment guidelines. The New York State Workers’ Compensation Board protects the rights of employees and employers by ensuring the proper delivery of benefits and by promoting compliance with the law. For more information about the Board and the work it does, go to wcb.ny.gov. To view this notice go to http://www.wcb.ny.gov/content/main/PressRe/new-appointments-medical-directors-office.jsp.
• The Chair has adopted an amendment to 12 NYCRR 441.2 to amend the New York Workers' Compensation Drug Formulary (NY WC Formulary) and make permanent the emergency rulemaking that was effective April 1, 2020. A Notice of Emergency Adoption and Proposed Rulemaking were published in the March 18, 2020, edition of the State Register Link to External Website. The Notice of Adoption was published in the June 17, 2020, edition of the State Register.  To view this bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/subjectNos.jsp To view the rule, go to http://www.wcb.ny.gov/content/main/wclaws/drug-formulary-441-2

REGULATORY ACTIVITY:

• The next chapter in the modernization of the New York State Workers’ Compensation Board, the Business Information System (BIS) Project, is well underway. The new system will bring improved and expanded access to real-time claim data, new electronic self-service features for interacting with the Board, and a reduction in the amount of overall paper forms to improve system responsiveness to stakeholder needs – just to name a few features. With the new system, the majority of our paper forms will be replaced by e-Forms, requiring our stakeholders to manually enter and submit data to the Board online. We know that many of you use computer software to automatically generate our paper forms. This new system will also have the ability to connect with your software to submit data to the Board online through an Application Programming Interface (API), eliminating the need for manual data entry, and offering you significant opportunities to automate and transform your claims processing and workflows.
• The Chair has adopted the amendment of 12 NYCRR 324.2 incorporating new Medical Treatment Guidelines (Elbow Injuries, Foot & Ankle Injuries, Hip & Groin Injuries, and Interstitial Lung Disease) by reference. The Notice of Proposed Rule Making was published in the July 31, 2019, edition of the State Register. A Notice of Revised Rule Making was published in the March 18, 2020, edition of the State Register. A Notice of Adoption was published in the May 20, 2020, edition of the State Register. These Medical Treatment Guidelines will be effective for care provided on or after January 1, 2021. To view this notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1298.jsp.
• 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 2019 was $1,450.17. Accordingly, the maximum weekly benefit rate is $966.78 for compensable lost time for workers' compensation claims with dates of accident during the period from July 1, 2020, through June 30, 2021.  To view the notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/subjectNos.jsp.
• Issued bulletin Subject Number 046-1301 regarding emergency adoption of addition of 12 NYCRR 329-1.3(d) [COVID-19 Testing]. The Chair has adopted on an emergency basis, the addition of subdivision (d) to 12 NYCRR 329-1.3. This addition will allow reimbursement for COVID-19 testing, when there is a claim for workers' compensation benefits due to workplace exposure to COVID-19. A Notice of Emergency Adoption will be published in the June 3, 2020 edition of the State Register. This emergency rule-making is effective for 90 days upon filing May 18, 2020.    To view the bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1301.jsp.  To view the rule, go to http://www.wcb.ny.gov/content/main/wclaws/COVID-19Testing/.

LEGISLATIVE ACTIONS:

• Senate Bill 6555 The enacted legislation relates to terms and conditions of employment for members of the collective negotiating unit consisting of investigators, senior investigators, and investigative specialists in the division of state police. It relates to the employee benefit fund for members of such unit.  The legislation makes an appropriation therefore (Part A). It provides for the adjustment of stipends of certain incumbents in the state university of New York and designating moneys therefore. The legislation continues a doctoral program recruitment and retention enhancement fund. It continues work-life services and pre-tax programs. It continues a professional development committee.  The legislation continues a comprehensive college graduate program recruitment and retention fund. It continues a fee mitigation fund. The legislation continues a downstate location fund. It continues a joint labor management advisory board and continues an accidental death benefit. It provides compensation for certain state employees in the state university that are designated, stipulated, or excluded from negotiating units as managerial or confidential pursuant to article 14 of the civil service law and certain employees of contract colleges at Cornell and Alfred Universities.  Effective Date January 1, 2020.

• Senate Bill 6959 The enacted Legislation authorizes the New York black car operators' injury compensation fund, Inc. to provide additional health benefits, consistent with its plan of operation, for all black car operators entitled thereto pursuant to this chapter, provided that the fund shall have complied with all applicable statutory and regulatory requirements; and provides for the expiration and repeal of a chapter of the laws of 2019 related thereto. Effective Date April 17, 2020.

• Senate Bill 8091 The enacted legislation provides provisions for certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. Effective March 18, 2020.

FEE SCHEDULE NEWS:

• A new EAPG data set was released with an effective date of April 1, 2020. The next update is expected in July 2020.
• The Workers’ Compensation Board has adopted new rules related to COVID-19 and telemedicine services with an effective date of March 16, 2020. To view the new rules, go to http://www.wcb.ny.gov/content/main/wclaws/Covid-19/3-16-20/text.pdf.

   

REGULATORY ACTIVITY:

• The Chair has adopted on an emergency basis an amendment to clarify that employees may take family leave to care for a family member diagnosed with the COVID-19 virus. The amendment is to section 355.9 of Title 12 NYCRR. A Notice of Emergency Adoption was published in the April 15, 2020 edition of the State Register. This emergency rulemaking is effective for 90 days upon filing March 27, 2020. To view this notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1286.jsp.
• In response to staffing and other changes put in place related to the COVID-19 pandemic, the Workers’ Compensation Board is updating some processes to ensure timely continuity of programs within the workers’ compensation system. Health care providers have been instructed to submit prior authorization requests for medical procedures to their insurance carrier’s designated email contact (if present) as posted on the Board’s website, rather than a fax number. Fax submissions may not be able to be reviewed in a timely manner because many insurer staff members are working remotely. Prior authorization requests for non-formulary medications should continue to be submitted through the medical portal. However, all insurance carriers, self-insured employers, and third-party administrators should forward their fax number to their designated email contact to ensure that these non-formulary prior authorization requests are received and acted upon accordingly. The Board will continue to issue Orders of the Chair for non-formulary prior authorization requests that are not responded to in a timely manner. These instructions pertain to the following forms:
  • Attending Doctor’s Request for Optional Prior Approval and Carrier's/Employer's Response (Form MG-1);
  • Attending Doctor's Request for Approval of Variance and Carrier's Response (Form MG-2);
  • Attending Doctor's Request for Authorization and Carrier's Response (Form C-4 AUTH).

The NY Workers’ Compensation Drug Formulary Prior Authorization process will continue to be used for prescriptions that require prior authorization. We also ask that your Medical Treatment Guidelines administrator verify your designated email contact and update it if necessary. Thank you for your cooperation. Please contact the Board at WCBMedicalDirectorsOffice@wcb.ny.gov if you have any questions.

• Pursuant to Executive Order 202.13, and effective March 30, 2020, all Workers’ Compensation and Disability and Paid Family Leave benefits insurance carriers are directed to cease cancelling, non-renewing, or conditionally renewing any insurance policy issued to an individual or small business, or, in the case of a group insurance policy, insuring certificate holders that are individuals or small businesses, for a period of 60 days, for any policyholder, or in the case of a group insurance policy, group policyholder or certificate holder where such policy holder and or certificate holder is facing financial hardship as a result of the COVID-19 pandemic. For purposes of the Executive Order, a small business means any business that is resident in this State, is independently owned and operated, and employs one hundred or fewer individuals. Pursuant to Department of Financial Services (DFS) regulation, an employer may establish that it is facing financial hardship as a result of the COVID-19 pandemic by filing an attestation to that effect with its workers’ compensation and/or disability and paid family leave benefits insurance carrier. See 11 NYCRR 229.5(c). All Workers’ Compensation, Disability Benefits and Paid Family Leave carriers are now on notice of the Executive Order. Given the nature of the Executive Order, and the likelihood that there will be a significant number of voluntary cancellations by small businesses that have either been directed to temporarily close or temporarily have no employees due to the COVID-19 pandemic, the Board will not implement a system hard coding to prevent the submission of all coverage cancellation transactions filed by your organization for small businesses in New York (as defined above). Rather, the Board expects all carriers to comply with the Executive Order voluntarily and not file such transactions where the small business has filed the appropriate attestation of financial hardship with the carrier as indicated above.  However, as carriers have now been specifically placed on notice of this 60-day moratorium, in the event that a carrier files a prohibited coverage transaction, and the Board in turn undertakes activity vis a vis an affected small business, the Board will impose sanctions.  Specifically, the Board will consider such activity to have been necessitated by carrier action without reasonable grounds, warranting an assessment of costs against the carrier pursuant to WCL § 114-a (3) (i). Finally, to the extent that there are any pending transactions that would violate the Executive Order, carriers are directed to immediately file reinstatement transactions (or other transactions as circumstances warrant) to negate the pending cancellations.
• Many insurance carriers, self-insured employers and third-party administrators are having their staff work from home during the Novel Coronavirus (COVID-19) health emergency. To accommodate this situation, the Board has changed its guidance on submitting medical bills and attached reports. For payers submitting these documents to the Board, we ask that you please follow these guidelines: If the medical bill is already in the case folder, the submitter should complete the form and note the Document ID for the medical bill. A copy should not be attached. If the medical bill is not already in the case folder, and the submitter cannot attach it to the Notice of Treatment Issue(s)/Disputed Bill Issue(s) (Form C-8.1B), then the medical bill can be submitted separately, if the medical bill is submitted on the same day as the Form C-8.1B.  A notation on the form of a same day medical bill submission is also acceptable proof. A photo or image of the medical bill is an acceptable submission in lieu of a scanned copy; however, our scanning vendor has advised us that photos taken on a mobile device produce large files that are not amenable to scanning. The vendor recommends downloading the Genius Scan app onto a mobile device for scanning medical bills. Genius Scan is a free download and produces image files that are smaller in size and can be downloaded for an Apple iOS or Android device. Forms should be submitted by email to wcbclaimsfiling@wcb.ny.gov. The medical bill should not also submitted by paper mail (this would create a duplicate in the case folder).
• The Chairman of the Workers' Compensation Board issued a letter to workers' compensation insurers and payers regarding workplace occupational disease COVID-19.  To view the letter, go to http://www.wcb.ny.gov/content/main/TheBoard/Letter-from-Chair-Rodriguez-to-payers.jsp.
• Over the past month, the New York State Workers’ Compensation Board (Board) has issued important guidance regarding process and other changes related to the novel coronavirus (COVID-19) outbreak. These actions have been taken to keep both the public and Board staff safe, and to address some of the challenges Board stakeholders may currently be facing. As the situation continues to evolve in the coming weeks, please watch the Board’s website for updates. You can also sign up to receive notifications right to your inbox or phone.  To view the summary, go to   http://www.wcb.ny.gov/ .
• The Chair has adopted on an emergency basis amendments to 12 NYCRR 325-1.8, 329-1.3, 329-4.2, 333.2, and 348.2 to expand the telemedicine options for social distancing purposes due to outbreak of COVID-19 and to supersede the previous emergency telemedicine adoption filed on March 16, 2020. A Notice of Emergency Adoption will be published in the May 6, 2020, edition of the State Register. The text of the Emergency Adoption has been published to the Board's website. This emergency rulemaking is effective for 90 days upon filing April 20, 2020. To view the bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1292.jsp.

FEE SCHEDULE NEWS:

• The Workers’ Compensation Board has adopted changes to the New York Drug Formulary with an effective date of April 1, 2020.

REGULATORY ACTIVITY:

• On November 13, 2009, the Board published Subject No. 046-372, which announced that the Board would not approve Section 32 Waiver Agreements that required the claimant to indemnify and hold the carrier harmless for any payment made by Medicare for treatment of claimant’s work-related injuries prior to the execution of the Section 32 Waiver Agreement. Since the publication of Subject No. 046-372, Section 32 Waiver Agreements have been submitted to the Board for approval containing similar provisions whereby the claimant has agreed to indemnify and hold harmless the carrier for its potential financial liability. Recently, the Board has received Section 32 Waiver Agreements which provide that the claimant will indemnify and hold harmless the carrier in the event that the carrier incurs liability as to the result of the claimant’s failure to safeguard the funds in a self-administered Medicare set-aside account established pursuant to the agreement. The Board has determined that it will not approve any Section 32 Waiver Agreement that requires a claimant to indemnify and/or hold harmless the carrier. Given the disparity in bargaining power and financial resources between individual claimants and insurance carriers, the Board believes such provisions, regardless of the particular liability for which the carrier seeks indemnification, are unfair and unconscionable (see WCL § 32[b][1]) and have no place in an agreement settling a claim for workers’ compensation benefits.  To view this bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_372.jsp.
• The Board has adopted on an emergency basis for an amendment to 12 NYCRR 441.2 to update the New York Workers' Compensation Drug Formulary(NY WC Formulary). Please see the Adoption of Amendment to 12 NYCRR 441.2 (April 2020) at http://www.wcb.ny.gov/content/main/wclaws/drug-formulary-441-2_20200401/. A Notice of Emergency Adoption and Proposed Rulemaking was published in the March 18, 2020, edition of the State Register. This emergency rulemaking will become effective on April 1, 2020. The Board will accept comments for 60 days from March 18^th. Please submit comments by emailing regulations@wcb.ny.gov. A full copy of the revised NY WC Formulary can be found at NY WC Formulary. Specific modifications can be found at NY WC Formulary Change Tracker. To view the notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1273.jsp.
• Issued bulletin subject number 046-1211 regarding the procedure for determining awards for certain schedule losses of use.  This Subject Number concerns claimants who are working at full wages and have evidence of Schedule Loss of Use (SLU) to limbs, vision loss, or hearing loss, as well as established non-schedule injuries (usually back or neck) stemming from the same accident. This Subject Number supersedes 046-1211 issued October 4, 2019, in its entirety. The entire ‘Stipulation Attachment’ discussed in Subject Number 046-1211 will no longer be necessary, and the form and associated FAQs will be removed from the Board’s website. Any cases with stipulation attachments submitted prior to the issuance of this Subject Number will continue to be processed as before. Pursuant to three decisions issued by the Appellate Division, Third Department on February 27, 2020, the Board will proceed to resolve Schedule Loss of Use (SLU) claims for claimants whose claims have been established for both schedule and non-schedulable body parts, and who are presently working at full pre-injury wages. Those decisions are Matter of the Arias v City of New York, Matter of Saputo v Newsday, and Matter of Fernandez v New York University Benefits [formal citations omitted].  Specifically, the Court held that “…where a claimant who has sustained both schedule and non-schedule permanent injuries in the same work-related accident has returned to work at preinjury wages and, thus, receives no award based on his or her nonscheduled permanent partial disability classification, he or she is entitled to an SLU award.” [Matter of Fernandez; underline in original]. Revisiting prior decisions: If the Board issued a prior decision contrary to the newly issued Court decisions, the Board would reopen the cases upon request. Claimants’ attorneys can file a Request for Assistance by Injured Worker (Form RFA-1) citing the circumstances. Unrepresented claimants can call the Board, or send in a letter, email, or Form RFA-1. Also, if the Board discovers that this has occurred in a case involving an unrepresented claimant, it will pro-actively reopen the case. The reopening protocol will apply whether the decision was issued by a conciliator, law judge, or Board Panel. In short, if the Board made a prior finding that a claimant who is working at full wages, with established SLU and non-SLU body sites from the same accident, and thus was not entitled to an SLU once permanency was found, the Board will proceed to make the correct ruling per the Court decisions. Going Forward: Stipulations: If the parties stipulate to permanency, all established sites must be addressed in the Stipulation (Form 300.5 or Form 312.5), by indicating the agreed-upon findings. For each of the SLU sites, that means stating the percentage of loss of use. For each of the non-schedule sites, that means indicating either a) that the site(s) is/are permanently disabled, and the percentage of loss of wage-earning capacity, or b) a finding that the site is fully resolved with no permanent impairment. A specific medical report covering the non-schedule site(s) is not a pre-requisite, so long as the parties agree. The stipulation should also indicate that the claimant is working at pre-injury wages so that the Board knows to indicate that it is fully payable. When the decision is issued, the carrier must then pay the SLU amount directed. Adjudication: If medical (the Doctor’s Report of MMI/Permanent Impairment (Form C-4.3), or a carrier’s independent medical examination (IME)) addresses permanency for all established SLU and non-SLU sites, the Board will set a hearing on permanency, and the Workers’ Compensation Law Judge (WCLJ) will develop the record. The WCLJ will make findings on Loss of Wage-Earning Capacity, claimant’s present work status and, dependent on that finding, SLU. When the decision is issued, the carrier must then pay the SLU amount directed. If medical (Form C-4.3 or a carrier’s IME) addresses all of the SLU sites, but not the non-SLU sites, the Board will commence the Form 81.7 process, wherein the other party is advised that it can obtain a medical opinion, and the parties can conduct depositions if desired. At the end of that process, if the parties have reached an agreement they will submit the Stipulation (Form 300.5 or Form 312.5), which will be processed by the Board (see Stipulations, above). If there is no stipulation, the Board will take further action once all established sites are addressed by medical evidence, per the Court decisions referenced above. In particular, in Matter of Fernandez, the Court held that “…absent a finding of permanency as to the established neck and back injuries…” the SLU is not presently payable. To reiterate, the parties can so stipulate, or one or both parties can submit medical evidence of permanency to all established sites, and the case can then move forward. Credit: When an SLU is awarded in a case with other established non-SLU sites, the carrier is entitled to a credit against any future awards for causally related disability arising from any established injury site. If there are any questions regarding a claim, please call the Customer Service toll-free number: (877) 632-4996, or for more general information feel free to email officeofgeneralcounsel@wcb.ny.gov.  To view the bulletin, go to  http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1211.jsp.
• To preserve public and workforce safety, effective immediately, the Board will conduct workers’ compensation hearings remotely, using the Board’s Virtual Hearings service. Virtual Hearings allow injured workers, attorneys/representatives, witnesses and other participants to attend workers’ compensation hearings remotely using a computer or mobile device. For the very small number of hearings that are not held using Virtual Hearings (discrimination cases under WCL § 120), the Board will contact the participants regarding further proceedings. Please visit the Board’s Virtual Hearings webpage at ny.gov/virtual-hearings/for complete details on how to attend a hearing using virtual hearings. Injured workers can also choose to appear by phone by calling (844) 337-6301. If you are an unrepresented injured worker and are unable to participate in your hearing, it will be rescheduled.
• Some Board Locations Closed Additionally, following a mandate by Governor Cuomo, the following Board locations are temporarily closed to the public starting Monday, March 16, however, the Board will strive to continue operations remotely.
• Brooklyn District Office
• Garden City Customer Service
• Long Island District Office (Hauppauge )
• Manhattan District Office
• New City Hearing Point
• Queens District Office
• Staten Island Customer Service Center
• White Plains Customer Service Center

• The Chair has adopted on an emergency basis, amendments to allow telemedicine in some circumstances for social distancing purposes due to the outbreak of COVID-19. These amendments are to 12 NYCRR 325-1.8, 329-1.3, 329-4.2, 333.2, and 348.2. A Notice of Emergency Adoption will be published in the April 1, 2020 edition of the State Register. This emergency rulemaking is effective for 90 days upon filing March 16, 2020.  To view a copy of this bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1278.jsp. For additional information regarding this bulletin, go to http://www.wcb.ny.gov/content/main/wclaws/Covid-19/.
• On March 16, 2020, the Board published a COVID-19 Guidance Document describing the anticipated impacts on the workers’ compensation system due to the current public health crisis and steps taken by the Board in response. In addition, the Board has commenced mandatory remote-only Virtual Hearing attendance and continues to work to ensure, to the greatest extent possible, ongoing operations and benefits flow to injured workers.  Since issuing the initial COVID-19 Guidance Document on March 16, 2020, the Board has received many questions from attorneys about the need for signatures on certain documents. Many attorneys, other law firm staff and employees of payers and administrators are working from home during this crisis and are unable in some instances to submit required forms with original handwritten signatures. To that end, the Board is hereby suspending until further notice the requirement for original handwritten signatures on the forms (all language versions), which require the signatures of claimants, attorneys, payers, and administrators, during the current state of emergency.  To view this notice go to http://www.wcb.ny.gov/content/main/TheBoard/COVID-19-signature-requirements.jsp.

REGULATORY ACTIVITY:

• Published an important notice regarding important information for authorized medical providers. As of January 1, 2020, licensed clinical social workers, nurse practitioners and acupuncturists, as well as physician assistants, occupational therapists and physical therapists can be authorized to treat injured workers in New York State. Going forward, only those providers who are Board authorized may treat workers’ compensation patients. To see additional information regarding this notice, go to http://www.wcb.ny.gov/content/main/hcpp/hcpp.jsp.
• The Notice and Proof of Claim for Disability Benefits (Form DB-450) has been updated to include a question on collection of other unemployment insurance benefits during the period for which disability benefits are being claimed. The Chair-prescribed claim form includes Part A, which must be completed by the claimant, and Part B, which must be completed by the claimant’s medical provider. No Part C or other modification of the form is permitted. The insurance carrier has 18 days from receipt of a completed Form DB-450 to make payment to the claimant. Alternatively, the insurance carrier may request additional information for cause. Unless there is suspicion of fraud, if Form DB-450 is complete and information provided by the medical provider, who is licensed as required, and Part B supports the periods claimed in Part A, then no additional information may be required by the insurance carrier. If further information is needed for cause, the insurance carrier must pay within 18 days and/or partially deny within 45 days. The claimant may request Board review of any denial or partial denial. In addition, if the insurance carrier does not timely respond to a Form DB-450with payment, denial or partial denial, the claimant may file a request for Board action on the claim. Failure to properly respond to Form DB-450 will subject the insurance carrier to penalties, including late payment penalties if the claim is accepted. Claimants may obtain Form DB-450 on the WCB website or contact their employer or payer to obtain a copy. Use of version 1/20 of the form will be effective March 1, 2020.
• The Chair has adopted the amendments to 12 NYCRR 441.2 to make various updates to the New York Workers’ Compensation Formulary. A Notice of Proposed Rule Making was published in the August 7, 2019 edition of the State Register. A Notice of Emergency Adoption and Proposed Rulemaking was published in the November 20, 2019 edition of the State Register.  A Notice of Adoption was published in the February 12, 2020 and February 19, 2020 editions of the State Register. These amendments are now effective.

FEE SCHEDULE NEWS:

• A new EAPG data set was released with an effective date of January 1, 2020. The next update is expected in April 2020.

REGULATORY ACTIVITY:

• Effective February 1, 2020, objections to ADs and PDs must be stated within the space provided on the issued AD or PD and sent to the Board. You must also include PDs: the WCB case number within your objection. The following instructions have been added to ADs:

If you object to part or all of this decision, please state your reasons on the back of this form and return it to the address listed above (keep a copy for your records). Any objection must be received on this form. Additional pages may be attached, if necessary. If you have any questions about this change, please contact the Board.  Phone: (877) 632-4996 Email: Claims@wcb.ny.gov

• Published Bulletin Subject Number 150-18.1 regarding change in rate of reimbursement to injured workers for travel by automobile. The mileage rate for reimbursement to injured workers for travel by automobile on or after January 1, 2020, is $.0575 per mile, in accordance with the Board resolution adopted on February 20, 1990.  To view the bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn150_18_1.jsp.
• To further assist medical providers in the implementation of the CMS-1500 for workers’ compensation patients, the Board has created a medical narrative report template that can be used to create the medical narrative that must accompany all CMS-1500 submissions. The top of the template includes the three elements most narratives require: the patient’s work status, the causal relationship of the injury to the patient's work activities, and the patient’s percentage of temporary impairment. A medical narrative report may be found legally defective if these elements are missing. Medical providers must also include examination findings within their narrative, including the history of the injury/illness, objective findings based on the clinical evaluation, the patient’s plan of care and the diagnosis(es)/assessment of the patient. A link to the new template, as well as line-by-line instructions, can be found on the CMS-1500 section of the Board’s website at http://www.wcb.ny.gov/CMS-1500/requirements.jsp. A chart outlining the specific narrative requirements for each specialty is located on the same page. If you have any questions regarding use of the medical narrative report template, please write to the CMS-1500 mailbox at CMS1500@wcb.ny.gov.

FEE SCHEDULE NEWS:

•  The Chair has adopted the amendment of 12 NYCRR 329-1.3, Part 333, 348.2, and 301.3, as well as the addition of Part 329-4 incorporating updates to the medical fee schedules by reference to conform to the statute expanding provider types who can be authorized under the Workers’ Compensation Law. The Notice of Proposed Rule Making was published in the July 3, 2019, edition of the State Register. A Notice of Adoption was published in the December 11, 2019, edition of the State Register. The amendments became effective January 1, 2020. To view a copy of this notice, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1239.jsp

REGULATORY ACTIVITY:

•  Issued bulletin subject number 046-1232 regarding change in reimbursement rates for inpatient psychiatric exempt units of service. Pursuant to New York Public Health Law § 2807-c(6-1), the workers' compensation fee schedule for inpatient hospital care tracks New York Medicaid rates, with limited statutory modifications. The New York State Department of Health is required by statute to announce the workers' compensation inpatient rates. These rates, which also apply to treatment provided under the Comprehensive Motor Vehicle Reparations Act, Volunteer Firefighters' Benefit Law, and Volunteer Ambulance Workers' Benefit Law, are posted on the Board's website. Please see 2018 Medical Care Fee Schedules. The Centers for Medicare and Medicaid Services recently approved State Plan Amendment 18-0059, which increased the payment adjustment factor for psychiatric inpatient services provided to individuals that are 17 years of age or under from 1.0872 to 1.3597, effective July 1, 2018. This age adjustment payment factor is applied to the psychiatric operating per diem rate component. Please note that the rate schedule remains unchanged from the psychiatric rates previously certified effective July 1, 2018. Only the calculation file has been updated since the payment adjustment factor used to calculate the payment of a claim for individuals 17 years of age and under has changed. To view this bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1232.jsp
• Issued bulletin subject number 046-1233 regarding new 2019 reimbursement rates for acute per case inpatient hospital rates, exempt hospitals, exempt units and detoxification inpatient rates. The New York State Department of Health (DOH) recently provided the Workers' Compensation Board with updated reimbursement rates for acute per case inpatient rates for the period of January 1, 2019, through December 31, 2019. Rates of payments for these services are based upon rates determined for state governmental agencies (Medicaid) in accordance with Article 2807-c (6) (1). These rates also apply to treatment provided under the Comprehensive Motor Vehicle Reparations Act, Volunteer Firefighters' Benefit Law, and Volunteer Ambulance Workers' Benefit Law. Please see 2019 Medical Care Fee Schedules. For discharges beginning on and after July 1, 2019, the APR-DRG Service Intensity Weights (SIWs) cost thresholds and average length of stay (ALOS) effective July 1, 2018, should continue to be used for payment purposes, in conjunction with the APR-DRG 3M grouper version 34. Please note, that the rates on the schedules are based upon the same methodology used in the rates effective January 1, 2018, through December 31, 2018, but also take into consideration the following: o The inclusion of 2019 budgeted capital as reported by hospitals and calculated in accordance with Section 8 of Article 2807-c of the Public Health Law; o The removal of prospective rate adjustments, associated with the capital component of each of the inpatient rates, which had previously been included to reflect the reconciliation of budgeted to actual costs and utilization for the period of January 1, 2014 – December 31, 2015; o The inclusion of a 2019 trend factor of 2.2% based upon the initial Consumer Price Index (CPI) as published by the Congressional Budget Office and as required by Section 10 of Article 2807-c of the Public Health Law; o Adjustments to the acute, specialty hospital and critical access hospital rates, where applicable, as a result of Article 19 of the NYS Labor Law that established new minimum wage increases beginning January 1, 2019; o Rate appeal for Cobleskill Regional Hospital due to conversion from acute per discharge to Critical Access Hospital per diem reimbursement effective January 1, 2019; and o Rate appeal for Eastern Niagara Hospital due to change in teaching status and eligibility for Graduate Medical Education adjustments in their acute rates. To view this bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1233.jsp
• The New York Workers' Compensation Formulary (NY WC Formulary) became effective on Thursday, December 5, 2019, for all new prescriptions. Starting that day, all new prescriptions for injured workers in New York State had to be listed within the NY WC Formulary unless an alternative medication has been approved through the NYS Workers' Compensation Board's new prior authorization process. Effective December 5, 2019, the electronic prior authorization process was able be available to registered providers and carriers/self-insured employers through the Board's Medical Portal. Please visit http://www.wcb.ny.gov/content/main/hcpp/DrugFormulary/overview.jsp for: 
• An overview of the NY WC Formulary and the prior authorization process 
• The latest version of the NY WC Formulary (effective December 5, 2019) 
• A video overview for medical providers 
• A Quick Guide to the NY WC Formulary 
• An NY WC Formulary Dashboard Guide for Medical Providers Information and resources related to the Board's Medical Portal are available on the Board's Medical Portal Overview webpage. For more information:
•  General Formulary questions: email WCBFormularyQuestions@wcb.ny.gov
• Technical Support questions: email WCBCustomerSupport@wcb.ny.gov
• Subscribe to receive email notifications at: http://www.wcb.ny.gov/ notify To view this bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1236.jsp
• In 2013, the Board adopted a national standard (International Association of Industrial Accident Boards and Commissions' [IAIABC] Claims Electronic Data Interchange [EDI] Release 3.0) for Claim Administrators to electronically submit employer claims data. The electronic filing of claims data was instituted by the Board to provide timely, accurate, and credible electronic reporting. 12 NYCRR 300.22 was amended in 2014 to mandate First Report of Injury (FROI) and Subsequent Report of Injury (SROI) filings for all Claim Administrators. As part of this regulatory amendment, certain Board forms (C-2, C-669, C-7, C-8/8.6, VAW-2, and VF-2) were replaced by their EDI-equivalent FROI/SROI transactions. It has recently come to the Board’s attention that compliance with this EDI mandate may not be 100%, especially in instances where there are ongoing payments in closed cases. The Board is sending this reminder to Claim Administrators to ensure that the appropriate FROI/SROI transaction is filed in every case in which there is a current, ongoing payment. This reminder extends to all cases regardless of their age or status (open or closed) with the Board. It is vital that all data in the Board’s claims information system (CIS) concerning ongoing payments in individual workers’ compensation cases is up-to-date and accurate, especially as it takes the first steps towards creating a new Business Information System (BIS).The Board has partnered with CapTech Ventures (CapTech) to work on its BIS project. BIS is a part of the Board’s multi-year business process re-engineering project, which will modernize and convert the Board’s multiple paper-based legacy systems (including, but not limited to, CIS) to a single web-based platform. BIS will allow the Board to automate and design efficient workflows, provide self-service capabilities to stakeholders, and measure the effectiveness of the workers’ compensation system. The Office of the State Comptroller recently approved the Board’s contract with CapTech, and CapTech representatives began project work on-site at the Board’s Executive Office in Schenectady at the end of August. Your anticipated cooperation with this directive is greatly appreciated. Failure to abide will (1) minimize the goals of the Board’s electronic reporting mandate, (2) negatively impact the effectiveness of the planned migration of data from CIS to BIS, and (3) interfere with the ability to measure the effectiveness of the workers’ compensation system once BIS is implemented. Failure to abide by this directive may also result in the assessment of penalties against Claim Administrators consistent with Workers’ Compensation Law and its regulations. Should you have any questions, please direct them to eClaims@wcb.ny.gov . Additional information is also located on the eClaims frequently asked questions webpage. 
• Posted the Workers' Compensation Board schedule for board meeting in 2020. To view the schedule of meetings, go to http://www.wcb.ny.gov/content/main/TheBoard/BoardMeetings.jsp

FEE SCHEDULE NEWS:

• A new change in reimbursement rates for Inpatient Psychiatric Exempt Unit Services retroactive to July 1, 2018 has been adopted by the state of New York.
• New reimbursement rates for Acute per Case Inpatient Hospital Rates, Exempt Hospitals, Exempt Units and Detoxification Inpatient rates have been adopted by the state of New York with an effective date of January 1, 2019.

REGULATORY ACTIVITY:

• Published bulletin subject number 046-1223 announcing the 2020 Assessment Rate. Pursuant to WCL §151, the Chair of the Workers' Compensation 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 2020, the rate shall be 12.2% of the standard premium or premium equivalent. To view the bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/subjectNos.jsp.
• Published bulletin subject number 046-1224 adopting amendments to 12 NYCRR 317.20. The Chair has adopted the amendment of Section 317.20 of 12 NYCRR to provide assistance with inactive but not insolvent group self-insured trusts to purchase assumption of liability policies (ALPs) to wind down liabilities. The Notice of Proposed Rule Making was published in the May 29, 2019 edition of the State Register. The amendments were effective upon publication of the Notice of Adoption in the October 30, 2019 edition of the State Register. To view the bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/subjectNos.jsp.
• The Chair has adopted on an emergency basis an amendment to 12 NYCRR 441.2, and proposed the amendment to 12 NYCRR 441.2 to create Special Consideration #4 for the New York Workers’ Compensation Formulary (NY WC Formulary) that provides for prescription and dispensing of formulary drugs when there is no New York Workers’ Compensation Medical Treatment Guideline (NY WC MTG), or for a condition directly associated with an established/accepted body part, but not specifically addressed in the NY WC MTG. There are also several changes to the drugs included in the NY WC Formulary. For a specific description as to what has changed, go to NY WC Formulary Changes. A Notice of Emergency Adoption and Proposed Rulemaking will be published in the November 20, 2019, edition of the State Register. This emergency rulemaking will be effective for 90 days from its filing on November 5, 2019. Comments on the proposal will be accepted for 60 days after publication. Please submit comments by emailing regulations@wcb.ny.gov.  To view the information, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1227.jsp.
• Published bulletin subject number 046-1226 on November 7th.  On November 6, 2019, the New York State Workers' Compensation Board released proposed amendments to sections 300.19, 325-1.24, 325-1.25, 440.8 and 442.3 to incorporate the 2019 changes of the Workers' Compensation Law (WCL) section 13-g into the existing regulations. Public comments will be accepted for 60 days through January 6, 2020 and may be sent to regulations@wcb.ny.gov. To view a copy of the bulletin, go to wcb.ny.gov/content/main/SubjectNos/sn046_1226.jsp.
• The New York Workers’ Compensation Board Drug Formulary (NY WC Formulary) becomes effective on December 5, 2019 for all new prescriptions. Starting that day, all new prescriptions for injured workers in New York State must be listed within the NY WC Formulary unless an alternative medication has been approved through the NYS Workers’ Compensation Board’s new prior authorization process. The new electronic prior authorization process will soon be available through the Board’s Medical Portal; please watch for the notification. Please visit the Board’s Drug Formulary Overview webpage for:
  • An overview of the NY WC Formulary and the prior authorization process;
  • The latest version of the NY WC Formulary (effective 11/5/19);
  • A video overview for Medical Providers;
  • A Quick Guide to the NY WC Formulary; and
  • An NY WC Formulary Dashboard Guide for Medical Providers.

Information and resources related to requesting prior authorization through the Board's Medical Portal can be found on the Board’s Medical Portal Overview webpage http://www.wcb.ny.gov/content/main/hcpp/DrugFormulary/overview.jsp.

• Pursuant to WCL §151, the Chair of the Workers' Compensation 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 2020, the rate shall be 12.2% of the standard premium or premium equivalent. Please contact the Workers’ Compensation Board by email at: WCBFinanceOffice@wcb.ny.gov with any questions on the assessment rate.

FEE SCHEDULE NEWS:

• A new and updated EAPG data file has been adopted with an effective date of October 1, 2019. The next update is scheduled for January 2020.

REGULATORY ACTIVITY:

• Bulletin Subject Number 046-1211: The New York State Workers’ Compensation Board accepts written stipulations when an injured worker is represented, and considers oral and written stipulations at a hearing, under Rule 12 NYCRR 300.5. The Board also receives requests for proposed findings, which are issued under Rule 12 NYCRR 312.5 (collectively referred to as “stipulations”). The Board has developed a Schedule Loss of Use (SLU) Stipulation Attachment to be used in certain situations where the parties have agreed to resolve permanency with a SLU payment despite indications that an established non-schedule site may have residual permanent impairment. If the medical evidence shows that the non-schedule site(s) or condition(s) are resolved with no permanent impairment, the stipulation shall so indicate, without needing the Attachment. The SLU Stipulation Attachment must be used if any of the following exist:
  • Where there is no medical report from either party regarding permanency to the established non-schedule site(s) or condition(s), the SLU Stipulation Attachment is required.
  • Where the Board file contains affirmative medical evidence of permanency to the established non-schedule site(s) or condition(s), the SLU Stipulation Attachment is required.
  • Where the medical reports of the parties differ on whether there is permanency to the established non-schedule site(s) or conditions, the SLU Stipulation Attachment is required.
• When the SLU Stipulation Attachment is required, the language of the stipulation must contain the following sentence: “The Stipulation Attachment is incorporated by reference into the terms of [this Stipulation-or-these Proposed Findings] as if fully set forth herein.” The SLU Stipulation Attachment is to be filled out and signed by the injured worker, and a separate section is to be signed by the injured worker’s legal representative. Original signatures are required. The SLU Stipulation Attachment must be sent to the Board together with the fully signed stipulation; otherwise, it will not be processed. Completed stipulations submitted under Rule 300.5 are reviewed by a Workers’ Compensation Law Judge. If rejected on the merits, a hearing will be scheduled. The Board has created a Frequently Asked Questions document that answers questions about the SLU Stipulation Attachment. A link to the document is placed below. Injured workers should review the document before answering the questions on the SLU Stipulation Attachment, and attorneys should discuss all aspects of the SLU Stipulation Attachment with their client.  To view the bulletin, go to http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1211.jsp. For