New York Workers Compensation Critical Update: Part 3

US Chiropractic Directory

from the desk of:

Mark Studin DC, FASBE(C), DAAPM, DAAMLP

"NYS WC Critical Update, Part 3"

No Fault Fee Schedule

WC Treatment Plans from 2 Weeks to 24 Weeks

Disclaimer: This opinion does not reflect any organization, including, but not limited to, the US Chiropractic Director or any state or national organization. It is the sole opinion of Dr. Mark Studin and is intended to be a tutorial for the new NYS WC Guidelines. Each doctor has to base his/her utilization of the guidelines, codes and treatment plans based upon the clinical findings of his/her individual patients.

Creating a care plan for your patients is a very easy process provided that you have thoroughly examined your patient, clinically correlating causality and bodily injury with your examination, imaging, advanced imaging and any other testing that you have ordered to create your final prognosis and subsequent treatment plan. It is what we have all been trained to do, regardless of whether you are a new practitioner or an old fart like me, in the game for 30 years. We were all taught the same methodology of triaging patients in professional school, from diagnosis to prognosis to treatment plan and administration of care.

The new New York State Workers Compensation Treatment Guidelines are based on that very paradigm and will reward doctors financially for working within the system. For those who choose to try to create their own paradigm, you will constantly be penalized for fighting the system with no payments in spite of quality chiropractic care. Remember, you never got paid for what you did; you only got paid for what you documented. Now, you get to keep your license based upon what you do and what you document. Those 2 are mutually inclusive.

Let's start with the really easy stuff, no fault. The following is a string of e-mails I received yesterday from a doctor in New York:

　

From: Serge
Sent: Monday, December 27, 2010 2:21 PM
To: drmark@teachdoctors.com
Subject: Re: New York W/C Critical Update #2

　

...I actually received a denial from a NF carrier because of an incorrect code. I was under the impression that NF carriers weren't changing their codes (obviously they were content paying out $33.70 as opposed to the higher fees that Comp carriers will pay).

-----Original Message-----
From: Dr. Mark Studin <drmark@teachdoctors.com>
To: 'Serge' <
Sent: Mon, Dec 27, 2010 2:42 pm
Subject: RE: New York W/C Critical Update #2
 

NF follows the WC fee schedule

From: Serge
Sent: Monday, December 27, 2010 2:21 PM
To: drmark@teachdoctors.com
Subject: Re: New York W/C Critical Update #2

But I was told by NYSCA, and several WC and NF attorneys that they were continuing to follow the old WC fee schedule. In fact, I've been paid by all NF carriers they old fee for all my December visits except for State Farm. I'd rather get paid the higher fees, especially since most NF patients have cervical, thoracic, lumbar and lumbo-pelvic conditions, which qualify for the higher code of 98941 (3-4 areas).

The answer doesn't come from political advisors and lawyers, it comes directly from regulations set forth by the New York State Department of Insurance. The answer is set forth by regulation and will guide your level of reimbursement for no fault and is quoted in the regulation by the NYS Insurance Department as:

　

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§ 68.0Preamble

(a)Chapter 892 of the Laws of 1977 provides, as a means of containing the cost of no-fault insurance, for the establishment of schedules of maximum permissible charges for medical, hospital and other professional health services payable under no-fault insurance benefits. Specifically, section 5108(a) of the Insurance Law provides that the charges for services specified in section 5102(a)(1) of the Insurance Law, and any further health service charges which are incurred as a result of the injury and which are in excess of basic economic loss, "... shall not exceed the charges permissible under the schedules prepared and established by the chairman of the Workers' Compensation Board for industrial accidents, except as otherwise provided in section thirteen-a of the Workers' Compensation Law."

(b)Paragraph (1) of subdivision (a) of section 5102 of the Insurance Law defines basic economic loss to include necessary expenses incurred for (i) medical, hospital, surgical, nursing, dental, ambulance, X-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any nonmedical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this State; and (iv) any other professional health services.

(c)Section 5102(a) of the Insurance Law provides that for the purpose of determining basic economic loss, the expenses incurred under section 5102(a)(1) shall be in accordance with the limitations of section 5108 of the Insurance Law.

(d)The Superintendent of Insurance is required, after consulting with the chairman of the Workers' Compensation Board and the Commissioner of Health, to promulgate rules and regulations implementing and coordinating the Comprehensive Automobile Insurance Reparations Act and the Workers' Compensation Law regarding the charges for other professional health services, including the establishment of schedules for all such services for which schedules have not been prepared and established by the chairman of the Workers' Compensation Board.

(e)The chairman of the Workers' Compensation Board has to date prepared and established fee schedules for medical, chiropractic and podiatric services. These schedules also include fees for some dental, psychiatric and physical therapy services.

(f)Providers of health services are prohibited from demanding or requesting any payment for services in excess of permissible charges, and the law requires insurers to report to the Commissioner of Health patterns of overcharging, excessive treatment or other improper actions by a health provider.

§ 68.1Adoption of certain workers' compensation schedules

(a)The existing fee schedules prepared and established by the chairman of the Workers' Compensation Board for industrial accidents are hereby adopted by the Superintendent of Insurance with appropriate modification so as to adapt such schedules for use pursuant to the provisions of section 5108 of the Insurance Law.

(b)

(1) The charges for services specified in paragraph one of subsection (a) of section 5102 of the Insurance Law and any further health service charges which are incurred as a result of the injury and which are in excess of basic economic loss, shall not exceed the charges permissible under the schedules prepared and established by the chair of the Workers' Compensation Board for industrial accidents. However, references to workers' compensation reporting and procedural requirements in such schedules do not apply, e.g., requirements that provide for authorization to perform surgical procedures, is not applicable to no-fault. The general instructions and ground rules in the workers' compensation fee schedules apply, but those rules which refer to workers' compensation claim forms, pre-authorization approval and dispute resolution guidelines do not apply, unless specified in this Part.

(2) If a fee schedule has been adopted for a licensed health provider, the fee for services provided shall be the fee adopted or established for that licensed health provider (for example, the fee for chiropractic services performed by a chiropractor employed by a physician would be the fee applicable for chiropractic services as contained in the Chiropractic Fee Schedule). However, if the Workers' Compensation Fee Schedule contains a specific ground rule to permit reimbursement at the physician rate then that rule will apply. (For example, the fee for services performed by a physical or occupational therapist employed by a physician would be the fee applicable at the physician rate in accordance with Ground Rule Nine contained in the Workers' Compensation Physical Medicine Fee Schedule).

(3) A "licensed health provider" means a licensed healthcare professional acting within the scope of his or her licensure or an entity properly formed in accordance with applicable law and acting within the scope of its license.
 

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Please use this section of regulation when communicating with the no fault carriers rather than begging and pleading for payment. The latter is demeaning professionally and will not work. You have to know the law in order to succeed and your staff needs to know the same in order to be effective. It always amazes me when a doctor retains me to help him/her increase his/her collections. The first thing I do is question his/her "absolutely best insurance staff," the same ones that he/she expects to make him/her rich; the ones that make $13-$15 per hour. The question is I always ask is, "What is the section of law that mandates the doctor gets paid and what is the percentages of interest he/she is mandated to pay you?" Less than 1 out of 100 staff members asked actually knows the answer for each financial class.
 

It amazes me that those same incredible collectors that the doctors have hired do not even know the rules of the jobs they are hired to do and the doctors usually "stick their heads in the sand," expecting relatively low-paid salary workers with no formal training to make them their fortunes. What's worse is that they don't know the rules and these are their businesses. I do not accept the garbage excuse that they are the doctors or healers and can't focus on that...These is their businesses! Let's go to workers compensation.
 

When you look at the new guidelines, the knee jerk reaction is that it is going to be horrible and you now wish for the old system because at first glance you get paid more, but you have to do more and it was easier simply to code 99213 for everything. Whether you spend 2 minutes or 30 minutes, you get paid the same thing. For some, change is daunting and scary, while others embrace it and learn how to thrive with the changes.
 

For me, the last fee increase we received in chiropractic was in 1996 when we received a 5% fee increase and the MD's and PT's got close to a 100% fee increase with an unbundled schedule. It has taken me and a lot of very hard working people 14 years to get our fees unbundled. We now have an equitable fee schedule with other providers for similar services, but still do not have a fair fee schedule because we still get paid far less than providers who are less qualified even though we are performing similar services. However, in a vacuum, we still get a 40% fee increase and I will not shout at the moon; I will embrace it while keeping focused on the stars, a fair fee in comparison to the MD's and PT's. If the state can afford them, they can afford us. If they can't then they should lower everyone's fees to make the fees equitable...but you know that will never happen!
 

When caring for your patients in the new WC system, it is critical to understand that this is an evidenced-based system requiring re-evaluations after every 3 weeks of care, certifying the necessity for more treatment. Co-morbidities are critically important, such as MRI findings of herniated discs, radiculopathy and myelopathy and disease entities such as diabetes and autoimmune disorders that prevent a quick resolution on many injuries. These all need to be documented and discussed in the records to explain why one patient will require longer care than another.
 

The goal of the new WC Treatment Guidelines is to progress a patient from passive care to active care. In this sense, you have to alter your thinking process and understand the mindset of those who created our rules. Passive means those services where the patient does not actively participate, such as CMT and HCP. CMT is "chiropractic manipulative therapy" and HCP is "hot-cold packs." While the CMT language may irk some of you, this is not a philosophy session or a technique language battle, it is purely coding. The NYS WC Board has fit us in a coding paradigm that works for them. I, personally, would rather fight for a higher level of reimbursement than win a language battle and be paid the same thing!
 

The WC Guidelines mandate that you progress the patient from passive care, where the patient is not physically involved in the treatment, to active care, where he/she must perform physical output to rebuild muscle and strengthen attachments for the correction to be maintained. This sounds an awful lot like what I was taught both in school and by technique instructors who repeated often that we need to make a correction and then strengthen that correction though exercise so that the adjustment/manipulation holds longer.
 

We also have to remember that WC is not a wellness program or a long-term process to mitigate the effects of a lifetime of degeneration. The purpose of the WC system is to get the patient back to the pre-injury status. The guidelines are acute care guidelines and not chronic care guidelines, as the latter does not exist.
 

When progressing your patient through care, you have to be cognizant of the time elements as prescribed by Medicode or the Medicare Guidelines that both define the parameters of every procedure. When documenting the time parameters in your SOAP notes, it my overwhelming suggestion to put actual times:
 

DO NOT USE: 12 Minutes

SUGGESTED FORMULA: Started 10:23 AM, ended 10:39 AM
 

This is the method recommended by Medicare and will not be scrutinized as the other methods will be over time. The other methods will lower your profile for potential retrospective audits. In the Critical Update, Part 1, I recommended that you get copies of both the fee schedule from Ingenix and rules for each modality directly form the NYS WC Board Web site so that you can understand the parameters (frequency and time) of each individual treatment entity.
 

The following is an example of a care plan for one of my patients. It covers 20 weeks of care without ever applying for a variance. You have to determine the most appropriate treatment plan for you patient based upon your clinical evaluation and all testing results once you have concluded a diagnosis and prognosis.
 

Lumbar Spine
Week	Visit Date ( up to 3 visits weekly )	Heat/Ice	CMT	US	Re- Eval	Neuromuscular Re-ED	Therapeutic Exercise
1	/ /	x	x
2	/ /	x	x		x
3	/ /	x	x
4	/ /	x	x
5	/ /	x	x		x
6	/ /	x	x
7	/ /	x	x
8	/ /	x	x		x
9	/ /		x	x
10	/ /		x	x
11	/ /		x	x	x
12	/ /		x	x
13	/ /			x		x	x
14	/ /			x	x	x	x
15	/ /			x		x	x
16	/ /			x		x	x
17	/ /				x	x	x
18	/ /					x	x
19	/ /					x	x
20	/ /				x

One thing that both you and I know is that if the patient doesn't get adjusted (yes, I didn't call it manipulation because now we are talking chiropractic and not WC coding), he/she will not get well. In a meeting with the assistant medical director of the WC Board, it was communicated through the organizational officials who attended the meeting that you couldn't perform a service and not report it. By reporting every step, it gives the carriers a distinct advantage over the care of your patients that they shouldn't have. It gives them the ability to deny care by ordering an IME or forcing you to file for a grievance and find a way to deny all care.
 

The WC Board thinks that the carriers are "benevolent" and will do the right thing by their insured's, your patients. I informed them when I spoke to them 3 weeks ago that I stood a better chance of having milk and cookies with Santa last week right after the stroke of midnight in a Jewish household! It is sad, but if you have been in the game more than 3 minutes, you will verify the carriers are anything but benevolent.
 

This left me on undefined ground. I needed to treat my patient and wanted to avoid reporting the adjustment by giving free services, but the WC Board wasn't allowing me to render free services while delivering other services. Therefore, I crafted a letter to the legal department of the WC Board specifically utilizing the language of the new WC regulations, knowing that there is no regulation preventing free care. Based upon the letter, the formal response I received was that I was permitted to provide free services to WC patients and was not required to report said procedures as long as I practiced within the scope of my license. As a result of the ruling, I have chosen to work in the above example I shared with you and after the 12 weeks of CMT, I will render free adjustments to my patient, while reporting the other levels of service for the full 8 RVU's. As per regulation, I can progress my patient through a full 20 weeks or more of care and never require a variance provided that the re-evaluations show that my patient is progressing in the metric I choose to use (ROM, muscle balance, strength, etc.) to certify she is getting better.
 

If it bothers you to have to do any type of rehabilitation or therapeutic exercise, neuro-muscular re-education, etc., just ask yourself, "Will this help the patient get better quicker?" The answer in every equation, with every technique, is yes. Most of you give your patients home exercise regimens. This is the same thing except you get paid for it for spending a little more time. If your office system is geared towards it, you will do very well financially. Obviously, the monetary gains are secondary to the patient getting better and staying well longer.
 

The next battle is to fight the carriers who are denying the symptomatic care patients categorically. Although I have a finite plan on how to overcome the carriers and their illegal actions, this is a fight for the organizations and their lobbyists and lawyers. Please direct those questions to the NY Chiropractic Council and NYSCA.