New York, Guidelines and Culture

It took 3 years since New York's workers' compensation reform was signed into law mandating treatment guidelines.

It took another 3 years for the first basic set of guidelines to be issued by the state's Workers' Compensation Board.

And it took another 3 years for the first level of appellate review to tell New Yorkers that times have changed and that evidenced based medicine is the law of the land.

In The Matter of Kigin v. State of New York Workers' Compensation Board, No. 515721, is creating noise in New York workers' compensation circles as the first appellate case to consider how the guidelines should be applied.

The New York 3rd Appellate Division ruled that an insurer could deny a request by an acupuncturist to exceed the number of treatments called for by the guidelines to relieve neck and back pain suffered by injured worker Maureen Kigin.

In March 2011, Kigin's doctor, a board-certified osteopathic surgeon, requested authorization to exceed the allowance for acupuncture treatments to treat Kigin's ongoing neck and back pain from a work-related car accident some five years before.

Liability for that claim had been assigned to the Special Fund for Reopened Cases. The fund denied the doctor's request on the basis that the doctor had not demonstrated the medical necessity of the extra treatments.

A workers' compensation law judge upheld the fund's decision, as did the Workers' Compensation Board.

The Appellate Division's 3rd Department rejected Kigin's challenge to the board's pre-authorization scheme, arguing that the board had exceeded the Legislature's grant of authority in enacting the regulations, and that the regulations were in conflict with their enabling legislation.

The court said that "medical necessity has always been a prerequisite to the employer's obligation to pay for medical tests and treatment," and since the Legislature "purposefully conferred the authority on the board to predetermine medical necessity for medical care, and its scope and duration," the board "acted within its legislatively conferred authority when it devised a list of pre-approved medical care deemed in advance to be medically necessary for specified conditions."

Kigin's attorney has vowed to take the matter up to the state's highest court.

In the meantime the board continues to be burdened with requests for variances.

According to the Workers' Compensation Alliance (a statewide coalition of injured workers and other stakeholders chaired by Kigin's attorney Robert Grey of Grey & Grey) website, the board also holds about 2,000 hearings per month on variance applications and spends about $60 million annually dealing with all the work associated with the requests from doctors.

That's a big charge on the system, but points to a troubling and difficult culture in New York.

It's taking time. Lots of time. But the culture of New York's workers' compensation system is changing.

Lots of state workers' compensation systems go through this culture shock. There is denial, then resistance. Eventually there is resignation, and ultimately acceptance and adjustment.

New Yorkers are a hearty, tough bunch of people. Change doesn't come easy, but change is coming. While it's taken eight years for the state to come to grips with guideline based treatment, ultimately the population will adjust.

The stark reality is that treatment guidelines are necessary because people don't know how to behave themselves, and for the vast majority of cases they are the right thing at the right time.

General health has guidelines. The Affordable Care Act initiated guidelines on a federal level. Nearly any state of any consequence has workers' compensation guidelines. Guidelines promote efficient medical practice and efficient workers' compensation case management because of stability and predictability.

If the WCA is right, that the state is spending $60 million a year on variance requests, then there is a huge issue and one that needs to be addressed with more court opinions affirming the legislature's intent, and affirming the power of the board, to implement and enforce standards in medical treatment.

Some people aren't going to be happy with this restriction, but it is reasonable, and it is necessary.

New York may have to take a lesson out of Texas' and California's play-books and come up with an independent medical review system that follows utilization review.

Time to pick some other argument. ACOEM, ODG, Reed - there are many others. There may be some variance between the different treatment guidelines, but not much. The reason is because evidence backs these works, and doesn't back an individual physician's recommendation of acupuncture on an ongoing basis for 5 years.

That's just the way it is.