State News : New York

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New York


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Board Continues Drug Formulary Rollout


As we reported in our last issue, the Board’s Prescription Drug Formulary is live, and the Board is setting up the Prior Authorization system for the Drug Formulary. Stakeholders in the workers’ compensation system should be aware of the need to set up contact information with the Board, the 12/5/19 transition to use of the Drug Formulary for new prescriptions, the requirement to notify providers and claimants about the transition to the Drug Formulary, and the Formulary’s treatment of narcotic/opioid medications. 
Board Requests Contact Information from Payers
The Board has asked payers (insurance carriers, self-insured employers, and third-party administrators) to identify contacts for their organization as well as provide an electronic mailbox for each. To do this, each organization must go to the Board’s Drug Formulary Administration webpage and enter their Level 1, Level 2, and Order of the Chair contacts for their organization. Please note that the requirement for Order of the Chair contacts is not included in the Drug Formulary or the regulation that incorporates it, but it is noted on the Board’s Drug Formulary Administration webpage.
Recall that Level 1 review is an internal review conducted by the payer. The Board requests that the Level 1 review contact information be an email address of the insurance carrier, TPA, or Pharmacy Benefit Manager (PBM), if designated. Level 2 review is the insurance carrier’s physician as defined in the Drug Formulary regulations. Thus, the contact information here should be that physician’s email address. Finally, the “Order of the Chair” contact information should include an email address for both the claim administrator and the insurance carrier. 
New Prescriptions After 12/5/19 Must be for Drug Formulary Medications
Payers should be aware that as of 12/5/19, any new prescription from a provider must be for a Drug Formulary medication. If the provider wants to prescribe a non-formulary drug, that provider must obtain prior authorization from the payer before writing the prescription. A “new prescription” is a prescription for a drug that the claimant is not currently taking, and this includes different drug strengths or frequencies of drugs that the claimant is taking prior to 12/5/19 
Refills and Renewals of Drugs – Payer Notification Requirements and the 6/5/20 Deadline
Payers are required to notify medical providers and claimants no later than 12/5/19 whether any drugs a claimant is currently being prescribed are not on the Drug Formulary. The Board has provided form letters for notification to claimants and providers showing the format of the notification that it requires. 
On or after 6/5/20, all refills or renewals of prescriptions must use a Drug Formulary medication unless the payer has given prior authorization to the provider before the date of the refill or renewal. A refill is defined as any subsequent fill of a prescription when the number of refills is explicitly included in the original prescription. A renewal is defined as a prescription that the claimant has been taking but for which there are no available refills.
Narcotics and Opioids 
Recall that the Drug Formulary does not include narcotic or opioid medications after the first 30 days from an injury (with the exception of the perioperative period as defined in the formulary). Moreover, on or after 12/5/19, the provider may only prescribe up to a single seven-day supply of a narcotic or opioid in the first 30 days following an injury. The Board also expects providers and claimants plan for a transition from narcotics/opioids to a Drug Formulary medication before 6/5/20. Should such a transition not be medically appropriate, the provider should obtain prior authorization of a refill or renewal of the narcotic/opioid before 6/5/20. 
For a refresher on the changes coming with the Drug Formulary, please review our prior article and the Board’s Subject Number 046-1198. For any questions about the Drug Formulary, please contact our partner, Renee Heitger


Board Continues Program to Replace C-4 Forms with CMS-1500


The Board continues its initiative to replace the C-4 family of forms with the CMS-1500 form, as we have reported in the past. The Board has held webinars, released a training video, and published FAQs for stakeholders to review and familiarize themselves with the new procedure. Those publications are available on the Board’s website here.
Most claims decisions after full implementation of the CMS-1500 initiative will depend on the health provider’s narrative report, for which the Board provides its expectations on its website. We expect that there will be some “growing pains” as the New York workers’ compensation community moves from the “check the box” C-4 forms to the need for detailed narratives. Our clients should remember to review future medical narratives carefully because defenses to a claim for benefits may arise based on omissions in the medical narrative, such as the failure to indicate a claimant’s degree of disability. 


Section 32 Agreements Now Require Additional Paperwork for Electronic Signatures


Over the summer, the Board introduced a new process for electronic signatures on Section 32 settlement agreements. The Board created a new form, the C-32E, which is used by insurance carriers, self-insured employers, and third-party administrators who provide an electronic signature on a Section 32 agreement. When the payer electronically signs a Section 32 settlement agreement, the person signing the agreement must also complete the new Board C-32E form and submit it with the Section 32 agreement that has the electronic signature. The Board will return unprocessed any Section 32 settlement agreements with an electronic signature that do not have form C-32E attached. 
For answers to your questions about the Board’s new electronic signature process, please contact our partner Nicole Graci


Appellate Division Cases of Note


On 6/27/19, the Appellate Division, Third Department, decided Ferguson v. Eallonardo Construction, Inc.  This decision reaffirms the principle that both claimants and carriers have the right to cross-examine the opposite party’s medical professional as long as a timely request is made regardless of whether they have contrary medical evidence. In this case, the Board held that claimant’s counsel waived any right to cross-examine the carrier’s IME consultant by not producing a timely contrary medical opinion. The court held that the right to cross-examine the opposing party’s medical professional is not conditioned on production of a contrary medical opinion. The only requirement is a timely request for cross-examination. The court held that a request to cross-examine an opposing party’s medical professional on permanency is timely when it is made at the first hearing addressing permanency. The court reversed the Board’s decision and remanded for further proceedings.   
On 8/1/19, the Appellate Division, Third Department, decided Donald Marcy v. City of Albany Fire Department. This decision reaffirms the well-established rule that a claimant is not automatically entitled to reduced earnings awards merely because he or she is working and earning less than their average weekly wage. If the reduction in earnings is caused by economic factors or any other reason unrelated to the work injury, the reduction in earnings is not causally related, and claimant is not eligible for reduced earnings awards. In this case, claimant testified that he worked 5 hours per week from home as a salesperson for a wooden boat manufacturer telephoning prospective clients and distributing advertisements. He earned $50.00 per week. Claimant testified that he worked all the hours his employer had available for him. He later tried to assert that his limited hours resulted from a part-time work restriction recommended by his doctor. The Board found claimant ineligible for reduced earnings awards, finding that his reduction in wages resulted from economic factors since his employer only had a few hours of work each week for him. Claimant appealed, and the Appellate Division affirmed. This decision serves as a reminder that claims for reduced earnings must receive close scrutiny to determine if the claimant is actually eligible for awards. Merely earning less money than the average weekly wage by itself is not enough.  
On 7/3/19, the Appellate Division, Third Department, decided Verneau v. Consolidated Edison Co. of New York, Inc. This decision reaffirms prior precedent holding that there is no bar to WCL §25-a relief for death claims after the 1/1/14 cutoff date, as long as the original injury that resulted in death was transferred to the Special Funds under §25-a before the 1/1/14 cutoff date. This decision serves as a reminder than close scrutiny must be given to death claims to determine if a claim for §25-a may be made. The mere fact that the 1/1/14 cutoff date has passed is not a bar to all claims for §25-a transfer. This category of death claims is a small subset of claims for a §25-a transfer can still be requested under appropriate circumstances.


Proposed Amendments to 300.13 and 300.14 Will Make Applications for Reopening or Rehearing More Difficult


The Board has proposed changes to Rules 300.14 and 300.13 that will, according to the Board “clarify the process regarding the reopening of a previously closed claim.” In practice, the adoption of these proposed regulations will make it more difficult to obtain a reopening under Rule 300.14.  Under the proposed rule changes, an application for reopening under Rule 300.14 must demonstrate that the application is “in the interests of justice” and it must also comply with the formatting rules for Applications for Board Review described in Rule 300.13. Additionally, any application under the proposed regulations must also show 1) that material evidence is now available that was not available at the time the issue was resolved in the prior decision; or 2) proof of a change in condition material to the issue is involved. 
The proposed rule change also sets a 30-day time limit on the filing of the application for reopening. According to the proposed regulation, the 30 days is measured from the date the applicant has knowledge of the material evidence or proof of change of condition upon which the application is made. The Board will require applicants requesting a reopening based on newly discovered material evidence to provide a sworn affidavit explaining why the evidence was not available when the issue was previously resolved, describing when and how the material evidence was obtained, and setting forth the administrative relief requested. For applications for reopening based on a change in condition, the application must provide a medical report, on a form provided by the Chair, based on an examination after the closing of the case, stating objective findings, and explaining how and when the condition changed. As of this writing the Board’s proposed form is not available. 
The proposed regulations also prohibit an application for reopening or rehearing when the claimant’s cap on permanency benefits under §15(3)(w) has run out (unless, presumably, benefits continue under an extreme hardship redetermination or reclassification with a permanent total or total industrial disability), where an application for reopening was previously denied, or where an application for full Board review has been denied with respect to the same issue. 
For further details and the text of the proposed regulation changes, please see the Board’s website here. Comments on the proposed rule changes will be accepted until 11/10/19. Comments should be submitted via email to


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