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Title: 

453-02-1809-m4-etal

Date: 

June 11, 2002

Type: 

Medical Fees

453-02-1809-m4-etal

DECISION AND ORDER

I. Summary

The workers’ compensation claimant in this case sustained a compensable injury on______. The injury consisted of neck sprain/strain and brachial neuritis or radiculitis. From October 2000 until late February 2001 Industrial Medical Associates (IMA) provided services to the claimant that were characterized as outpatient pain management and billed under CPT Code 97799-CP (unlisted physical medicine/rehabilitation service or procedure, “CP” for “chronic pain”). The patient was seen several times a week for EMG,[1] EDR,[2] and temperature biofeedback, relaxation training, auricular acupuncture, individual psychotherapy, group therapy, pain management education, massage, cranial electrical stimulation, and light stretching and exercise sessions.

This Decision and Order addresses two cases that were consolidated for hearing.

The first case is Docket No. 453-02-1809.M4.[3] The carrier, State Farm Fire & Casualty Co. (State Farm), paid $3,500.00 (20 hours at $175.00 per hour) for services provided on November 13, 14, 15, and 17, 2000, and is seeking a refund for this amount. State Farm is the petitioner with respect to this part of the conflict because the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) determined that State Farm had not timely requested a refund.

The second case is Docket No. 453-02-1937.M4. This case involves $25,550.00 (146 hours at $175.00 per hour) billed by IMA for the remainder of the disputed services. State Farm declined to pay anything for the billed services, saying that the services were not appropriately documented. Since the MRD agreed with State Farm that the services were not adequately documented, IMA is the petitioner concerning this portion of the dispute.

Because these two cases involve the same claimant, compensable injury, and kinds of services, the Administrative Law Judge (ALJ) granted a motion to consolidate the cases for hearing. The hearing was held April 30, 2002. IMA was represented by Clelia Hinajoza and Lori Hartzler, and State Farm was represented by John Fowler. The record remained open until May 24, 2002, for submission of written closing arguments.

This decision concludes that, as to Docket No. 453-02-1809.M4, State Farm is not entitled to a reimbursement of the $ 3,500.00 it already paid to IMA. As to Docket No. 453-02-1937.M4, this decision concludes that IMA is not entitled to recover any amount of reimbursement.

II. Evidenceand Discussion

Docket No. 453-02-1809.M4

The documentary record in this case consisted of the 44-page certified record of the MRD proceeding (Ex. ALJ 1).

State Farm reimbursed IMA $ 3,500.00 on December 26, 2000, and requested a refund on July 13, 2001. According to the MRD, the Commission’s rules require that the carrier request a refund no later than 45 days after receiving the bill from the provider. 28 Tex. Admin. Code § 133.304(a), (b)(3). Since the bill was received (and paid) in December 2000, but the request for reimbursement was made in July 2001, the MRD concluded that State Farm was not entitled to a refund. See ALJ 1, pp. 2 – 3.

The ALJ concurs with the MRD’s determination that State Farm’s request for a refund was not timely. The statutory provision and many rules cited by State Farm in its closing argument do not relate to the timeliness of the request for refund, and therefore do not affect the determinative analysis of the facts in this case. State Farm is not entitled to a refund of the $ 3,500.00 it paid to IMA.

Docket No. 453-02-1937.M4

Evidence. The evidentiary record in this case consisted of:

  • The 382-page certified record of the MRD proceeding (Ex. ALJ 2).
  • The testimony of Lori Hartzler, office manager of IMA. Called by IMA.
  • The testimony of Clelia Hinajoza, a social worker employed by IMA to provide pain management services. Called by IMA.
  • The testimony of Curtis J. Spier, M.D. Called by State Farm.
  • A letter dated July 12, 2001, signed by Lori Hartzler of IMA (Carrier 1). Offered by State Farm.

Fee Guideline Requirements. CPT Code 97799, under which IMA billed for all the services at issue in this case, is a “DOP” (documentation of procedure) code. This means that the maximum allowable reimbursement for the service will be determined by written documentation attached to or included in the bill. See Medical Fee Guideline, p. 1 (General Instructions, III. Documentation of Procedure). The provider is required to set forth the following information: an exact description of the service provided; the nature, extent, and need (diagnosis and rationale) for the service; the time required to perform the service; and the skill level necessary for performance of the service. Id., pp. 1 – 2.

In addition, the Medical Fee Guideline establishes particular requirements for chronic pain management. See Medical Fee Guideline, pp. 40 – 41 (Medicine Ground Rules, II. Single and Interdisciplinary Programs, G. Chronic Pain Management). These requirements include, for example, entrance criteria for patients, supervision by a doctor, and daily documentation of treatment and patient response.

State Farm’s Denial. State Farm denied IMA’s claims for reimbursement because they were “not appropriately documented.” See, e.g., ALJ 2, p. 25. On April 24, 2001, a Curtis J. Spier, M.D., issued a peer review report concerning IMA’s claims, and found that IMA’s treatment program lacked documentation of an initial evaluation, a treatment plan, monitoring and updating of the treatment plan, and discharge factors. Id., pp. 112 – 113.

MRD Decision. On January 3, 2002, the MRD recommended no reimbursement on the grounds that IMA’s documentation: (1) failed to show adequately how much time was spent in what activities; (2) was highly repetitive, with progress notes repeated verbatim for as many as 25 sessions; and (3) frequently was not specific to the claimant’s injury.

IMA’s Position. IMA points to the fact that State Farm’s utilization reviewer, at intervals throughout the claimant’s course of treatment, reviewed IMA’s records concerning the claimant and recommended pre-authorization of additional weeks of treatment. See Id., pp. 13, 17, 20. IMA asserts that Dr. Spier, the peer reviewer, must not have had all the medical records before him, since the record in this case shows: an initial evaluation prior to the commencement of the claimant’s chronic pain management program, Id., pp. 95 – 10; a written treatment plan, Id., pp. 291 – 293; a progress report from mid-November 2000, Id., pp. 115 – 116, and a discharge report, Id., pp. 294 – 297. IMA asserts that Dr. Spier’s peer review should be deemed invalid under Commission rule 133.304(g) and (h) because he is not of the same or similar specialty of the performing health care provider, and he failed to provide his professional license number. See 28 Tex. Admin. Code §133.304(g) and (h).

IMA further asserts that State Farm failed to comply with Rule 133.304 by providing only a cursory explanation of the basis of denial and by failing to pay 50 percent of the billed amount. See 28 Tex. Admin. Code § 133.304(d), (g), and (h).

IMA asserts that its pain management program, carried out by an interdisciplinary team consisting of a physical therapist, doctor, mental health provider, and vocational counselor, promoted the claimant’s recovery to a degree that she was able to return to work after completing the course of treatment.

State Farm’s Position. State Farm argues, based on Dr. Spier’s testimony and peer review report, that IMA’s program failed to meet the requirements of the Medical Fee Guideline. See Medical Fee Guideline, pp. 40 – 41 (Medicine Ground Rules, II. Single and Interdisciplinary Programs, G. Chronic Pain Management). State Farm asserts that the program failed to include an initial assessment, a treatment plan by a doctor, active supervision by a doctor, monitoring of the patient’s progress, and documentation of treatment outcomes. Dr. Spier noted that the documentation failed to tie the treatment to the claimant’s injury. The carrier also argues the Guideline states that acupuncture and biofeedback cannot be included as part of a chronic pain management program. See Medical Fee Guideline, p. 41 (Medicine Ground Rules, II. Single and Interdisciplinary Programs, G. Chronic Pain Management, 4).[4]

State Farm asserts that under the Commission’s rules, any reimbursement for this program should be reduced 20% because the program is not accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF).[5]See Medical Fee Guideline, p. 36 (Medicine Ground Rules, II. Single and Interdisciplinary Programs, C. Accreditation.) In addition, State Farm argues that IMA billed more hours than were pre-authorized, and reimbursement, if any, should be reduced by $700.00 to account for the time that was not pre-authorized.

ALJ’s Analysis. The ALJ finds insufficient reason to overturn the MRD’s determination that the documentation of services in this case was inadequate.

In particular, the ALJ finds that IMA failed to document the rationale for many of the services provided. Nowhere in the record does IMA explain how the following forms of treatment (characterized as group therapy and pain management education) could promote claimant’s recovery from her spinal injury:

  • Discussion about getting nutritious food when dining out. The members of the discussion group dined and discussed the pros and cons of the food served in terms of nutrition, fat count, etc. This meal and discussion apparently happened twice; IMA’s clinic records for the claimant include identical notes for November 8, 2000, and February 8, 2001. ALJ 2, pp. 159, 280.
  • Discussion about patients’ “frustrations regarding the total approach to workers compensation and the horror stories they have endured or stories they have heard from others.” ALJ 2, p. 164.
  • Discussion about “the possibility of growing and wholesaling herbs to nutritional centers” as a form of vocational education or counseling. ALJ 2, p. 182.
  • Watching a video on how medicines are developed from plants. This video was apparently viewed twice, on November 13, 2000, and February 22, 2001. ALJ 2, pp. 186, 271. The notes for the two sessions are identical.
  • Watching a video about how and where memories are stored in the brain, followed by discussion. The claimant apparently viewed this video and participated in this discussion three times, on November 14, 2000, February 7, 2001, and February 21, 2001. ALJ 2, pp. 193, 267, 358. The notes for the three sessions are identical. On each occasion, the documentation suggests that the claimant was the only group member present.
  • Discussing thoughts and feelings about aroma therapy. The note for this session goes on to say, “One member will be buying a starter kit. Members were supportive of the decision.” This exact same note is in the claimant’s clinic notes twice, once for November 15, 2000, and once for February 23, 2001. ALJ 2, pp. 199, 275. On both dates, the documentation suggests that the claimant was the only group member present.
  • Discussion of the fat content of foods, and in particular oriental foods. The discussion included a survey of the nutritional value of various oriental foods. This discussion apparently occurred twice, on November 17, 2000, and on February 22, 2001. ALJ 2, pp. 206, 218. The notes for the two sessions are identical. Both stated, “Members seemed to enjoy the topic presented today.” On both days, the documentation suggests that the claimant was the only class participant.
  • Discussion of “community resources,” including “lawyers and federal agencies.” ALJ 2, p. 226.
  • Discussion of herbs and nutritional supplements available from several multi-level marketing companies. ALJ 2, p. 241.
  • Discussion of “the issues involved with insurance carriers and insurance doctors.” ALJ 2, p. 262. The note for this session went on to say, “The group was quite spirited today as they related their trials and tribulations while on Workers’ Compensation.
  • They all reported how their stress levels have increased due to the system.” ALJ 2, p. 262. The documentation suggests that the claimant was the only group member present.
  • Discussion of dietary supplements, and reading of “brochures and handouts from various nutritionals supplement companies regarding supplements.” ALJ 2, p. 266.
  • Discussion of “financial stresses due to reduced incomes (most noticeably the reduction with Workers Compensation).” ALJ 2, p. 285.

There is no documentation of time specific to each of the above activities and, therefore, no way to separate the billing for those treatments from other, possibly more appropriately documented treatments. Further, the suspiciously pre-fabricated appearance of some of the clinic notes casts doubt on the credibility of IMA’s documentation in general.

While the ALJ agrees with IMA that Dr. Spier did not seem to have all relevant documents before him when he conducted his peer review (for example, the record includes, contrary to Dr. Spier’s assertions, both an initial evaluation of the patient and a discharge report),[6] the above examples of inadequate documentation are sufficient to support the MRD’s decision.

The ALJ is not persuaded by IMA’s other arguments. The ALJ sees no indication in the rules that pre-authorization of treatments obviates the need for the provider to offer adequate documentation after the services are provided. With respect to IMA’s assertion that the Commission’s rules require an insurer to pay 50 percent of a disputed claim, this rule is only applicable where the carrier intends to conduct an on-site audit. 28 Tex. Admin. Code § 133.304(d). Finally, IMA’s documentation is so deficient as to outweigh concerns about the generality of State Farm’s explanations of its denial of reimbursement.

III. Findings of Fact

  1. The workers’ compensation claimant in this case sustained a compensable injury on_______. The injury consisted of neck sprain/strain and brachial neuritis or radiculitis.
  2. The claimant’s injury is covered by worker’s compensation insurance written for the claimant’s employer by State Farm Fire & Casualty Company (State Farm).
  3. From October 2000 until late February 2001 Industrial Medical Associates (IMA) provided services to the claimant that were characterized as outpatient pain management and billed under CPT Code 97799-CP (unlisted physical medicine/rehabilitation service or procedure, “CP” for “chronic pain”).
  4. In December 2000, State Farm paid $ 3,500.00 for services provided on November 13, 14, 15, and 17, 2000.
  5. On July 13, 2001, State Farm requested a refund of the $ 3,500.00 it had paid to IMA.
  6. State Farm denied payment for the remainder of the services provided to the claimant on the grounds that IMA’s documentation was inadequate. The total billed amount for those services was $25,550.00.
  7. In July 2001, the MRD concluded that State Farm was not entitled to a refund of the $3,500.00 it had paid to IMA.
  8. On January 3, 2002, the MRD recommended no reimbursement of the $25,550.00 on the grounds that IMA’s documentation: (1) failed to show adequately how much time was spent in what activities; (2) was highly repetitive, with progress notes repeated verbatim for as many as 25 sessions; and (3) frequently was not specific to the claimant’s injury.
  9. IMA’s documentation of the treatment provided to claimant does not include the amount of time spent in group therapy, pain management classes, and pain management group discussions.
  10. IMA’s documentation of group therapy and pain management classes (or “group discussions”) fails to provide adequate rationale to explain how much of the treatment would promote the claimant’s recovery.
  11. IMA’s clinic notes from pain management group discussions, including those on November 15, 2000, February 20, 2001, and February 23, 2001, seem pre-fabricated, in that they are suspiciously repetitive or reflect a “group discussion” consisting of only one person.

IV. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code §413.031.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Labor Code §413.031 and Tex. Gov’t Code ch. 2003.
  3. The Notice of Hearing issued by the Commission conformed to the requirements of Tex. Gov’t Code §2001.052 in that it contained a statement of the time, place and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular section of the statutes and rules involved; and a short plain statement of the matters asserted.
  4. State Farm has the burden of proving by a preponderance of the evidence that it is entitled to a refund of the $ 3,500.00 it has already paid to IMA. Tex. Labor Code §413.031.
  5. IMA has the burden of proving by a preponderance of the evidence that it is entitled to reimbursement for the remainder of the chronic pain management services it provided to the claimant in this case. Tex. Labor Code §413.031.
  6. The Commission’s rules require that the carrier request a refund no later than 45 days after receiving the bill from the provider. 28 Tex. Admin. Code § 133.304(a), (b)(3).
  7. Findings of Fact Nos. 4 and 5 show that State Farm’s request for a refund was untimely.
  8. State Farm is not entitled to a refund of the $ 3,500.00 it has already paid to IMA.
  9. The Medical Fee Guideline provides that CPT Code 97799 is a “DOP” (documentation of procedure) code, which means that the maximum allowable reimbursement for the service will be determined by written documentation attached to or included in the bill. The provider is required to set forth the following information: an exact description of the service provided; the nature, extent, and need (diagnosis and rationale) for the service; the time required to perform the service; and the skill level necessary for performance of the service.
  10. Findings of Fact Nos. 9 through 11 show that IMA’s documentation of services failed to meet the requirements of the Medical Fee Guideline.
  11. IMA is not entitled to any further reimbursement for the chronic pain management services it provided to the claimant.

ORDER

It is therefore ordered that the provider, Industrial Medical Associates, does not have to refund any funds to the carrier. In addition, State Farm Fire & Casualty Company need not pay any further reimbursement to Industrial Medical Associates for pain management services billed in connection with the claimant_____.

Issued June 11th, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

Shannon Kilgore
Administrative Law Judge

  1. The ALJ is not sure what this is; perhaps it stands for “electromyogram.”↑
  2. The ALJ is not sure what this is; perhaps it stands for “:electrodermal response.”↑
  3. In 453-02-1809.M4, State Farm Fire and Casualty Company is the petitioner, and Industrial Medical Associates is a co-respondent. In 453-02-1937.M4, Industrial Medical Associates is the petitioner, and State Farm Fire and Casualty Company is a co-respondent.↑
  4. The ALJ does not agree with State Farm’s reading of this rule. The rule actually says that clinics that provide only those specific therapies outside the context of an interdisciplinary team cannot be part of a chronic pain management program.↑
  5. IMA acknowledges that this reduction is applicable.↑
  6. The ALJ is not persuaded by IMA’s argument that Dr. Spier’s testimony and report should be considered invalid. First, this objection was not raised at hearing. Further, Dr. Spier is a psychiatrist, a field related to the kinds of mental health services provided by IMA, and he is the medical director of a CARF-accredited pain management clinic. (IMA failed to indicate what area of specialty its supervising physician may have.) The record indicates that Dr. Spier is qualified under the Commission’s rules to conduct a peer review in this matter. His failure to provide his license number is not a significant enough breach of the rules to invalidate his report and testimony.↑