New York Issues Permanent Telehealth Regulations

On 7/11/23, new telehealth regulations went into effect in New York State. These regulations outline the circumstances in which injured workers in New York may receive telehealth services from a health care provider and the types of providers authorized to provide telehealth services. Notably missing from the proposed regulations are details on the method and manner by which employers and carriers may object to an injured worker’s use of telehealth services in circumstances where it may not be warranted.

The new permanent telehealth regulations are in Section 325-1.26 of Title 12 of the NYCRR. Telehealth was at one time limited to rural or remote communities; however, since the COVID-19 pandemic, telehealth has been more widely embraced. The New York Workers’ Compensation Board adopted emergency regulations during the pandemic to allow for expanded use of telehealth. The new permanent regulations do not simply make the old emergency regulations permanent. The emergency regulations provided more latitude to providers in the use of telehealth services. The new regulations limit the use of telehealth depending on the type of provider and the phase of the claimant’s injury.

Certain providers may not provide telehealth services at all. These include: chiropractors, acupuncturists, physical therapists, and occupational therapists. This makes sense, as the treatment modalities offered by these providers are “hands-on” and, presently, the best clinical practice for these providers involve in-person visits.

Physicians, podiatrists, psychologists, nurse practitioners, physician assistants, and licensed clinical social workers are permitted to provide telehealth services to claimant via two-way audio or audio and visual communication subject to limitations depending on the care provided and the phase of injury. Additionally, those providers using telehealth must be able to meet the claimant at the provider's office within a reasonable travel time and distance from the claimant's residence.

The regulations divide the phases of a claimant’s injury into acute/sub-acute, chronic, and maximum medical improvement (“MMI”). The acute/sub-acute phase of injury is defined as within the first three months following the date of injury. Use of telehealth during the acute/sub-acute phase is at the clinical discretion of the treating provider, except that at least every third visit must be in person. 

After three months from the date of injury is considered the “chronic” phase of injury under these regulations. During the chronic phase of injury, the provider is permitted to use telehealth at their discretion except that there must be an in person visit at least every three months or until the provider feels that the claimant has reached maximum medical improvement.

Once the treating provider feels that the claimant has reached MMI, further telehealth visits may be at the provider’s clinical discretion except that there must be an in-person visit by the providers at least annually.

Telehealth treatment for mental health conditions by psychologists and licensed clinical social workers are treated differently under these regulations. For mental health treatment, the only limitation is that the telehealth treatment be medically appropriate and permitted under the Medical Treatment Guidelines. Mental health treatment is not subject to the phase of injury limitations noted above for physicians, podiatrists, nurse practitioners, and physician assistants. The regulations state that remote mental health treatment should be limited to those situations where there is "no benefit" to in-person services. Additionally, treating mental health professional needs to document the reason for the use of remote services for each telehealth visit. There is no indication in the regulations as to what constitutes an adequate reason for use of telehealth services for mental health treatment.

The regulations define “medically appropriate for telehealth” as where an in-person physical examination of the claimant is not needed to assess the claimant’s clinical status, need for further diagnostic testing, appropriate treatment, or to determine causal relationship of level of disability. This section of the regulations (12 NYCRR 325-1.26(c)(1) and (2)) goes on to provide factors or parameters where an in-person physical examination may or may not be necessary but note that such factors should not be used by carriers or employers as the basis for a denial of services. This implies that employers and carriers have no recourse if the provider is using telehealth in a situation where it is not warranted. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth over an in-person exam.

Moreover, the factors that address where no in-person physical exam may be necessary, 12 NYCRR 325-1.26(c)(1)(i)–(viii), are vague. For example, 12 NYCRR 325-1.26(c)(1)(i), provides that telehealth could be appropriate for management of chronic conditions where the provider has previously conducted a medically appropriate and comprehensive in person assessment of the patient and condition and is fully familiar with the applicable medical history; however, factor (i) does not provide a timeframe for when this prior in person exam might have occurred or if the specific provider conducted this exam, i.e., another treatment provider in the same office conducted the in-person exam. Also, factor (viii) provides a catch-all scenario as prescribed in the Medical Treatment Guidelines or other related Board communications; however, it is unclear what this would mean in terms of supporting a telehealth visit over that of in person.

12 NYCRR 325-1.26(c)(2)(i)-(ix) provides for the factors that would indicate the necessity of a physical exam. Notably, factor (vi) focuses on an in-person exam to address degree of disability or range of motion. Degree of disability is a basic component of medical evidence submitted to the Board. Claimants in the temporary phase of disability are required to submit medical evidence regarding degree of disability every 90 days to maintain their entitlement to benefits. It is unclear how telehealth could be useful as factor (vi) acknowledges that degree of disability and range of motion should be addressed only in an in-person exam. Further, factor (ix) provides that although causal relationship should be addressed in an in-person exam, the provider could in theory ascribe causal relationship if the provider is able to articulate in the medical record why an in-person exam was not necessary to determine causal relationship. Causal relationship is routinely addressed in the acute phase of an injury. 12 NYCRR 325-1.26(c) provides that the absence or existence of these factors should not serve as a basis of a denial by carriers, self-insured employers, or third-party administrators, but causal relationship is a viable defense routinely raised by the carrier, self-insured employers, or third-party administrators. 12 NYCRR 325-1.26(c)(2)(ix) would seem indicate that the provider may now support causal relationship with a lesser burden of proof, i.e., not the physical exam findings, but some other factor in the medical record.

Nothing in the new regulations addresses when and how an employer or carrier might deny telehealth treatment that was rendered inappropriately. This would suggest that employers and carriers have no recourse if the provider is simply opting to use telehealth. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth versus an in-person exam.

The Board acknowledged the lack of guidance in an email sent on 7/13/23. That email, entitled “Telehealth Guidance” addressed the proper method for payers to object to treatment via telehealth, in instances where the payer believes the use of telehealth was inappropriate and inconsistent with the regulation. The email provides little relief for employers and carriers who want to ensure that providers are providing telehealth services consistent with the new regulations because the email states that the fact that medical treatment was provided via telehealth cannot be the sole reason for an objection to a medical bill. Rather, the employer or carrier should instead file an RFA-2, check box “K” and request a direction for future in-person visit in accordance with the regulation, and state why the visit should not be performed via telehealth.

Even after filing the request for further action, employers and carriers should not expect much help from the Board. This is because the email also indicated that the Board would not entertain C-8.1 objections from employers and carriers who object to telehealth treatment by providers who were previously directed to provide in-person treatment. Rather, the Board stated that such providers would be subject to “administrative action.”

Only in cases where a chiropractor, acupuncturist, physical therapist, or occupational therapist provides telehealth services would the Board entertain a C-8.1 objection from an employer or carrier. We do not expect that there will be many situations where this comes up.

Finally, the regulations state that Independent Medical Examinations (“IMEs”) may be conducted via telehealth when all parties of interest consent to a telehealth examination and where the IME is not offering an opinion on permanent impairment. This may provide an opportunity for employers and carriers to secure an IME on mental health claims where it is difficult to find a psychiatrist or psychologist in the claimant's home community.

With the permanent implementation of these regulations, telehealth is here to stay. Despite the numerous requirements for providers, there is no enforcement mechanism for employers or carriers to ensure compliance with these regulations. They can only rely on the Board's promise of "administrative action." At a minimum, employers and carriers should update their processes to ensure that any telehealth visit by a chiropractor, acupuncturist, physical therapist, or occupational therapist is objected to with a C-8.1. For other providers who use telehealth inconsistent with the new regulations, employers and carriers can file an RFA-2 and request a direction that the provider provide in-person visits in the future.

Passing of the Torch

Our founding partners, Mark Hamberger and Ronald Weiss, have served on the firm’s Governing Committee, and as Managing Partners in the Buffalo and Rochester offices respectively, since the founding of the firm in 1991. Effective January 1, 2023, Mark and Ron have decided that the time has come to pass the management responsibilities to the next generation. 

Accordingly, the firm created a new Governing Committee, and elected F. Daniel Bowers, Renée Heitger, and Joseph DeCoursey to serve on that committee, effective January 1, 2023 to manage the firm. Dan and Joe will serve as Managing Partners in Buffalo and Rochester respectively.  

Under Mark and Ron’s 31 years of leadership, the firm has grown to become the largest law firm dedicated solely to Workers’ Compensation defense in New York. Mark and Ron will remain with the Firm as Special Counsel, where they will play integral roles in the firm's continued success.

 H&W Saves Client Nearly $60,000 With Fraud Finding and Permanent Bar on Indemnity

Our associate, Victoria Hahn, obtained a WCL §114-a (fraud) finding and secured a permanent disqualification of the claimant's indemnity benefits for our client in a particularly tricky claim that was decided a few weeks ago. The claimant in this case had been out of work since the date of accident in March 2020. Our client's investigator was able to get some limited evidence of the claimant's work activity: a few photos and a 10 second video from an informant showing the claimant working as a carpenter at a job site. During testimony, the claimant alleged that he was just "helping a friend." Unfortunately, the informant was murdered before trial in an unrelated incident, leaving Tori without much of a case. 
 
Undeterred, she subpoenaed the claimant's bank records, which showed large deposits into a business account in the claimant's name, with the claimant listed as the sole signer and authorized user. These records were critical as they proved that the claimant was engaged in substantial work activity while collecting workers' compensation benefits. The Law Judge felt that the video surveillance and photographs were insufficient on their own to establish a fraud finding. However, the Judge found that the bank records completely discredited the claimant's testimony and that the only logical conclusion regarding the deposits noted in the bank records were that they were for services performed by the claimant on behalf of his business. 
 
Given the classification with a permanent partial disability and a 33% loss of wage earning capacity Tori's efforts saved our client nearly $60,000 in workers' compensation payments. For any questions about this case, please contact Tori and if you have a fraud case you would like to us to review, please contact us. 

On 1/18/23, Maila Hazen will present "New York Prior Authorization Request (PAR) Basics". This webinar will discuss the New York Workers’ Compensation Board’s prior authorization request (“PAR”) process. PARs generally apply to requests for medical treatment that fall outside of the Board’s Medical Treatment Guidelines. Participants will learn the basics of the PAR process and practice tips for handling PARs from health care providers. This webinar is relevant to New York workers’ compensation claims only.

It will be held at 11:00 AM EST on Wednesday, January 18 2023. Please click here to register. 

This webinar is produced in partnership with WorkCompCollege.com and the National Workers' Compensation Defense Network (NWCDN). 

On 12/30/22, Governor Hochul vetoed three bills pertaining to workers’ compensation matters and signed one into law. She vetoed a bill redefining temporary total disability (S768/A1118), a bill that would have set the minimum rate of compensation as no lower than 1/5 of the state average weekly wage (S8271/A7178), and a bill that would have changed the legal standard for establishing a claim for mental stress (S6373/A2020). She signed into law a bill that prohibits any workers’ compensation board determination from having a collateral estoppel effect in any other action or proceeding arising out of the same occurrence, except for the determination of an employer-employee relationship (S9149/A10349).

Employers and carriers were concerned about the three vetoed bills, which were passed by the legislature over the summer. Each would have increased workers’ compensation premiums and the cost of doing business in the state.

However, the so-called “TT bill” was of particular concern because it had the potential to effectively eliminate partial disability classifications in New York given its definition of temporary total disability as the inability of an injured worker to fully perform their pre-injury job or modified work offered by the employer. Such injured workers would be allowed to receive the maximum benefit rate, no matter how much residual work capacity their own physician believed them to have. We discussed this concern along with our analysis that this bill would have increased the value of permanent partial disability awards and eliminate the labor market attachment defense in our white paper published over the summer. 

The workers’ compensation defense bar was active in educating the public about the potential cost increases that would result from passage of this bill. Our firm wrote an op-Ed in The Buffalo News and our partner Dan Bowers and Mark Hamberger were interviewed by Buffalo Business First in their article about the bill. Attorney Peter Walsh of the Walsh and Hacker firm in Albany was interviewed in an article about the bill published in the Times Union in June 2022.  

We are pleased to learn that the governor vetoed the TT bill and the other two bills that were passed by the legislature this summer. We believe her vetoes to be a “win“ for businesses in New York. This should serve as a reminder that employers and carriers concerned about the cost of doing business in New York State should be sure to monitor the legislative calendar for pending legislation in 2023 and contact their elected officials to discuss any legislation that they are concerned about.

As Responsible Reporting Entities (RREs), carriers and self-insured employers (SIEs) are responsible to report the existence of any Medicare enrolled claimants to CMS, subject to certain reporting thresholds. CMS ostensibly uses this information to avoid making conditional payments, where a carrier or self-insured employer’s coverage is primary to Medicare. The 2007 Medicare, Medicaid and SCHIP Extension Act (MMSEA) also imposed civil monetary penalties of up to $1,000.00 per day, per claimant, for failure to comply.
 
The penalties are in addition to any MSP reimbursement obligations, such as conditional payment reimbursement. Carriers and SIEs should consider the cost of these penalties as potential added claim expense, in addition to conditional payment reimbursement, MAP lien reimbursement, and WCMSA funding.
 
Highlights of the proposed rules include: 

• Penalties can be imposed if an RRE fails to register and report within one year of the date that a settlement, judgement award or other payment obligation was established. The penalty is up to $1,000.00 for each day of non-compliance for each claimant. The maximum penalty for each claimant is $365,000.00 per year.  
• If a report is made, but the RRE subsequently provides contradictory information in response to MSP recovery efforts, the RRE is subject to a penalty based on the number of days that the RRE failed to appropriately report updates to the claimant’s records. The penalty is up to $1,000.00 per day of non-compliance, with a maximum of $365,000.00 per claimant.  
• CMS proposes a 20% error tolerance. If errors exceed the 20% threshold in four of eight consecutive reporting periods, the RRE may be subject to a penalty upon the fourth occurrence. This penalty is tiered, ranging from $250.00 per day, per claimant, for each day of non-compliance to a maximum of $1,000.00 per day. The maximum quarterly penalty is $90,000.00 per claimant.
• There is five year statute of limitations for imposition of a penalty, tolled from the date that CMS identified non-compliance.  
• The proposed rules are prospective, meaning that CMS will impose penalties on a go forward basis following the effective date, rather than retroactively.   

CMS will informally communicate with the RRE before imposing a penalty, using the same communication procedures already in place under the MMSEA User Guides. The RRE may respond with mitigating evidence. If a penalty is imposed, the RRE will receive formal written notice from CMS. A dispute process is proposed, involving hearings before a federal Administrative Law Judge, appeals to the Departmental Appeals Board, and petitions for judicial review.

We strongly recommend reviewing Section 111 reporting procedures with those responsible for supplying information to your reporting agent, as well as reviewing your reporting agent’s procedures, to be sure that everyone is in compliance before February 2023.
 
As industry pioneers in Medicare compliance, we have been preparing MSAs, defending conditional payments and Medicare Advantage Plan liens, and advising on Section 111 reporting for nearly two decades. As our clients prepare for this latest development, we stand ready to train, advise and, if need be, defend MMSEA penalties. Please contact our partner, Nicole Graci, for more information.

In 2022, the Board has overhauled the process for health providers to request prior authorization for treatment as well as the process for employers, carriers, and administrators to respond to these requests. The Workers’ Compensation Board's project to do this is called "OnBoard" and the Board has now completed its initial rollout of the project, which is designed to transition payers and health care providers from paper-based processes to online processes. Our white paper discusses the Board’s prior authorization request (“PAR”) process. PARs generally apply to requests for medical treatment that fall outside of the Board’s Medical Treatment Guidelines. You can download it here

For any questions about this topic please do not hesitate to contact Maila Hazen or our partner Renee Heitger.

Insurance carriers and employers in New York exhaled a sigh of relief after the Court of Appeals issued its decision in Green v. Dutchess County BOCES on 10/27/22. This decision from New York's highest appellate court reverses an Appellate Division holding which required posthumous payment of remaining capped permanent partial disability benefits in non-schedule loss of use award cases when the claimant dies for reasons unrelated to their work injury. That decision, now reversed, created a new category of New York workers' compensation benefits with potentially huge additional unplanned liabilities for New York workers' compensation payers. When the Appellate Division’s decision in Green was published, Hamberger & Weiss LLP opined that the decision was wrongly decided because it failed to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards.

The Court of Appeals held that there is no statutory basis in the plain language of the workers' compensation law or in the legislative histories of statutory amendments over the years supporting Appellate Division's decision. The Court highlighted the fundamental distinction between schedule and non-schedule permanent partial disability awards over 100 years ago in 1921. One hopes this unambiguous reaffirmation by the Court of that fundamental distinction will lay to rest any future attempts to blur the difference between schedule and non-schedule awards for another 100 years.

Please do not hesitate to contact any of our attorneys with questions about this decision.

As a reminder, the Hamberger & Weiss LLP New York Workers’ Compensation Law Reference Sheet is available online for claims professionals that need a handy reference tool in day-to-day claims handling. The reference sheet has the maximum and minimum compensation rates dating back to 1990, the SLU and LWEC tables, common due dates, and summaries of laws concerning liability, defenses, settlements, and medical treatment issues.

As of August 2022, the Hamberger & Weiss LLP conditional payments team has saved our clients over $1,000,000. With 4 months still left in the year, the conditional payments team is on track for a record year.

Hamberger & Weiss, LLP provides Medicare Compliance services, including MSAs with or without CMS pre-settlement approval, conditional payment lien research and recovery at CMS and Treasury levels, MAP lien research and recovery and NGHP Mandatory Insurance Reporting guidance. Contact our partner Nicole Graci at ngraci@hwcomp.com for your conditional payment, MAP and Section 111 reporting needs.