Hamberger & Weiss LLP

Board Rules that Medical Treatment Guidelines Apply to Out-of-State Treatment

In Hospice, Inc. (WCB Case No. 5951 3410, 5/24/17), a Board Panel ruled that the New York State Medical Treatment Guidelines (“MTGs”) apply to treatment rendered to a claimant residing out-of-state by an out-of-state provider. This represents a significant departure by the Board from its prior decisions on this issue.

The claimant in Hospice lived in Nevada and sought treatment from a Nevada provider. The carrier filed a C-8.1B to the bill for this treatment, arguing that the treatment provided was not based upon a correct application of the MTGs because the provider billed for medications not approved under the MTGs. The WCLJ found the C-8.1B in favor of the provider and the carrier filed an Application for Board Review.

The Board reversed and ruled in the carrier’s favor, noting that even though it previously held that a nonresident claimant seeking treatment out-of-state was not bound by the MTGs, it was now disavowing and departing from such prior Board Panel decisions and ruling that the MTGs apply regardless of where or by whom the treatment is rendered. The Board’s decision was based on its reading of the Court of Appeals decision in Kigin v. State of New York Worker’s Compensation Board, 24 N.Y.3d 459 (2014).

The Board also held that the variance process applies to out-of-state providers but that out-of-state providers are not required to use the Board’s forms (i.e, MG-1, MG-2 and C-4AUTH). Use of the forms is preferred but not a basis to deny treatment.

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