DECISION AND ORDER

The dispute in this case is: where a provider is paid for a physical medicine session consisting of two hours of treatments with timed codes, is the provider entitled to additional reimbursement for other physical medicine services, with untimed codes, provided at the same time? In this case, a chiropractor at the Back and Joint Clinic (BJC) treated the claimant in August and September 2001. On three occasions, BJC billed for two hours of therapeutic exercise under a timed code, plus additional treatments with untimed codes, including joint mobilization, myofascial release, and electrical stimulation. On the fourth occasion, BJC billed for one-and-a-half hours of therapeutic exercise, plus the additional modalities with untimed codes. The carrier, Fidelity and Guaranty Insurance Company (Fidelity), treated the untimed procedures as though they had been billed in timed units of 15 minutes, and paid for a maximum of two hours of treatment on each occasion. The total amount in dispute is $256.00.

The Administrative Law Judge (ALJ) concludes that BJC’s billing was consistent with a reasonable interpretation of the Medical Fee Guideline’s requirements, and orders Fidelity to pay the disputed amount.

I. Jurisdiction, Notice, and Procedural History

The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act). Tex. Lab. Code Ann. ch. 401 et seq. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann. §413.031(d); Tex. Gov’t Code Ann. ch. 2003.

The Commission’s Medical Review Division (MRD) issued its decision March 14, 2002. Fidelity requested a hearing. Proper and timely notice of the hearing was issued May 3, 2002. The hearing was convened July 15, 2002, with ALJ Shannon Kilgore presiding. Steven Tipton appeared for Fidelity, and Scott Hilliard appeared for BJC. The Commission did not participate in the hearing. The hearing was adjourned, and the record closed, the same day.

II. Factual Background

The claimant in this case sustained a compensable neck and shoulder injury on__________. He suffered from neck strain/sprain, rotator cuff strain/sprain, and myofascial pain syndrome.

In September and August 2001, the claimant was seen at BJC for physical therapy. On the four occasions with disputed claims, BJC billed, and Fidelity paid, as follows:

Date of Service	CPT Code	Treatment	Amount Billed	Amount Paid
8-29-01	97110 timed	therapeutic exercise 8 15-minute units	$280.00	$280.00
8-29-01	97014 untimed	electrical stimulation 1 unit	$17.00	$0
8-29-01	97250 untimed	myofascial release 1 unit	$43.00	$0
8-29-01	97265 untimed	joint mobilization 1 unit	$43.00	$0
8-31-01	97110 timed	therapeutic exercise 8 15-minute units	$280.00	$280.00
8-31-01	97014 untimed	electrical stimulation 1 unit	$17.00	$0
9-5-01	97110 timed	therapeutic exercise 8 15-minute units	$280.00	$175.00
9-5-01	97014 untimed	electrical stimulation 1 unit	$17.00	$15.00[1]
9-5-01	97250 untimed	myofascial release 1 unit	$43.00	$43.00
9-5-01	97265 untimed	joint mobilization 1 unit	$43.00	$43.00
9-7-01	97110 timed	therapeutic exercise 6 15-minute units	$210.00	$175.00
9-7-01	97014 untimed	electrical stimulation 1 unit	$17.00	$15.00[2]
9-7-01	97250 untimed	myofascial release 1 unit	$43.00	$43.00
9-7-01	97265 untimed	joint mobilization 1 unit	$43.00	$43.00

See TWCC Exhibit 1, pp. 3 – 4, 9. The total difference between the amounts billed and the amounts paid (not including the $2.00 reduction for each payment for electrical stimulation) is $256.00. Fidelity’s rationale for denying or reducing the above claims was, “Services not billed within the guidelines established by the T.W.C.C.” See id., pp. 52 – 54, 56 – 57.

The MRD found in favor of BJC, stating, “Even though the provider has reached the time threshold for timed CPT codes, the provider may continue to bill untimed CPT codes until the modalities threshold is met.” Id., pp. 3 – 4. The MRD ordered Fidelity to pay the additional $256.00.

III. Discussion

The rule. This case centers on a dispute as to the interpretation of the following portion of the Commission’s Medical Fee Guideline:

A physical medicine session is defined as any combination of four modalities (97010-97039), procedures (97110-97150) and/or physical medicine activities and training (97220-97541). The maximum amount of time allowed per session is two hours. If additional time is required to complete the treatment rendered in a session, a maximum of one additional hour may be allowed. DOP [documentation of procedure] is required for time exceeding the two hour maximum. Two sessions are allowed per day for the first week of the acute phase of the injury. Thereafter, only one session per day is allowed.

Medical Fee Guideline, p. 32 (1996) (Medicine Ground Rules, I.A.10.a.).^[3]

Fidelity’s arguments. Fidelity asserts that all the physical medicine treatments listed in the rule, whether their codes are timed or untimed, are subject to the two-hour cap. Fidelity points to the fact that the first sentence of the rule explicitly references a number of codes, both timed and untimed. The carrier acknowledges that a number of SOAH judges^[4] and the MRD interpret the two-hour limit to apply to timed codes only. Fidelity asserts, however, that this interpretation violates the rules of statutory construction, since the rule is not ambiguous on it face. Fidelity also argues that in applying the time limit to timed codes only, SOAH judges and the MRD have engaged in ad hoc rulemaking through adjudication.

Fidelity offered testimony from a former senior Commission employee, Julie Shank, R.N., who was involved in the adoption of the Medical Fee Guideline. Ms. Shank testified that she believes the original intent of the Commission, and the earlier policy of the MRD, was to apply the time limit equally to timed and untimed codes. The rule, testified Ms. Shank, was designed to be an actual limit on the amount of clock time a patient spends in physical medicine treatment; in imposing the limit, the Commission was trying to balance the need to control utilization with the goal of ensuring that injured employees receive reasonable and necessary medical care. She testified that she was not aware of any comments from the public on this issue during the Commission’s rulemaking. Fidelity suggests that the absence of comments means that the rule was clear to everyone from the outset.

According to Fidelity, there are no practical problems associated with applying time limits to services with untimed codes; all a practitioner needs to do is use a clock or watch and record the amount of time used in administering each physical medicine treatment to the patient.

BJC’s arguments. BJC argues that the rule is ambiguous, in that it is unclear how to apply a time limit to services that are not billed by units of time. The provider points to the MRD’s decision in this case, which states that a provider may bill for physical medicine services with untimed codes even after meeting the two-hour limit for services with timed codes in the same session. BJC also points to the recent line of SOAH cases reflecting this same interpretation of the rule.

ALJ’s analysis. The ALJ declines to disturb the decision of the MRD for two reasons. First, the ALJ disagrees with the carrier’s assertion that the rule is clear. While the rule does explicitly reference both timed and untimed codes, it does so in its first sentence – which relates to the limit on the number of codes that can be billed for a session, not to the two-hour limit. The ambiguity in the language of the rule primarily arises out of the use of the phrase “time allowed.” In most contexts, this phrase would be unambiguous. The Medical Fee Guideline for workers’ compensation billing, however, draws a distinction between services that are billed according to units of time and those that are not. In this setting, a rule imposing a time limit on reimbursement for medical services can give rise to legitimate questions about whether, and how, such a limit is meant to be imposed on services that are not billed according to time. An absence of public comment in the rulemaking process says nothing about what people thought the rule meant. The MRD’s efforts to interpret and apply an unclear rule do not amount to ad hoc rulemaking.

Second, Fidelity has offered insufficient evidence that the MRD’s interpretation of the rule is contrary to the Commission’s intent. Testimony by a former Commission employee about what she believed the Commission meant is not adequate to prove the proper interpretation of the rule.^[5]

Given that the rule is ambiguous, and that there is no clear showing in the record of this case that the MRD’s working interpretation of the rule contravenes the intent of the Commission, the ALJ determines that the MRD decision should be affirmed.

IV. Findings of Fact

1. The claimant in this case sustained a compensable neck and shoulder injury on_________. He suffered from neck strain/sprain, rotator cuff strain/sprain, and myofascial pain syndrome.
2. On August 29, August 31, September 5, and September 7, 2001, the claimant was seen by a chiropractor at the Back and Joint Clinic (BJC).
3. For the August 29, 2001, visit, BJC billed $280.00 for two hours (8 15-minute units) of therapeutic exercise, CPT Code 97110. BJC also billed $17.00 for one untimed unit of electrical stimulation (CPT Code 97014); $43.00 for one untimed unit of myofascial release (CPT Code 97250); and $43.00 for one untimed unit of joint mobilization (CPT Code 97265).
4. For the August 29, 2001, visit, Fidelity paid $280.00 for two hours (8 15-minute units) of therapeutic exercise, CPT Code 97110. Fidelity did not pay for the other physical medicine treatments billed.
5. For the August 31, 2001, visit, BJC billed $280.00 for two hours (8 15-minute units) of therapeutic exercise, CPT Code 97110. BJC also billed $17.00 for one untimed unit of electrical stimulation (CPT Code 97014).
6. For the August 31, 2001, visit, Fidelity paid $280.00 for two hours (8 15-minute units) of therapeutic exercise, CPT Code 97110. Fidelity did not pay for the electrical stimulation (CPT Code 97014).
7. For the September 5, 2001, visit, BJC billed $280.00 for two hours (8 15-minute units) of therapeutic exercise, CPT Code 97110. BJC also billed $17.00 for one untimed unit of electrical stimulation (CPT Code 97014); $43.00 for one untimed unit of myofascial release (CPT Code 97250); and $43.00 for one untimed unit of joint mobilization (CPT Code 97265).
8. For the September 5, 2001, visit, Fidelity paid $175.00 for the therapeutic exercise (CPT Code 97110); $15.00 for the electrical stimulation (CPT Code 97014); $43.00 for one untimed unit of myofascial release (CPT Code 97250); and $43.00 for one untimed unit of joint mobilization (CPT Code 97265).
9. For the September 7, 2001, visit, BJC billed $210.00 for two hours (6 15-minute units) of therapeutic exercise, CPT Code 97110. BJC also billed $17.00 for one untimed unit of electrical stimulation (CPT Code 97014); $43.00 for one untimed unit of myofascial release (CPT Code 97250); and $43.00 for one untimed unit of joint mobilization (CPT Code 97265).
10. For the September 7, 2001, visit, Fidelity paid $175.00 for the therapeutic exercise (CPT Code 97110); $15.00 for the electrical stimulation (CPT Code 97014); $43.00 for one untimed unit of myofascial release (CPT Code 97250); and $43.00 for one untimed unit of joint mobilization (CPT Code 97265).
11. In declining to pay the full amounts billed, Fidelity stated, “Services not billed within the guidelines established by the T.W.C.C.” (The difference between the $15.00 paid for electrical stimulation and the $17.00 billed is not is dispute.)
12. The total amount in dispute is $256.00.
13. BJC sought review from the Commission’s Medical Review Division (MRD).
14. The MRD issued its decision on March 14, 2002. The MRD ordered Fidelity to pay the additional $256.00.
15. Fidelity requested a hearing before the State Office of Administrative Hearings.
16. Notice of the hearing was issued May 3, 2002. The notice 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 sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
17. The hearing was convened July 15, 2002, with Administrative Law Judge Shannon Kilgore presiding. Steven Tipton appeared for Fidelity, and Scott Hilliard appeared for BJC. The Commission did not participate in the hearing.

V. Conclusions of Law

1. The Commission has jurisdiction over this matter pursuant to § 413.031 of the Texas Workers’ Compensation Act (the Act). See Tex. Lab. Code ch. 401 et seq.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order in this case. Tex. Lab. Code Ann. §413.031(d); Tex. Gov’t Code ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with the Texas Administrative Procedure Act. Tex. Gov’t Code §2001.052.
4. Fidelity has the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).
5. Based on Findings of Fact 2, 3, 5, 7, and 9, BJC’s billing for services did not exceed the four-modality limit or the two-hour limit for each physical medicine session set out in section I.A.10.a. of the Medicine Ground Rules in the Commission’s Medical Fee Guideline, which is incorporated by reference in the Commission’s rules. 30 Tex. Admin. Code §134.201.

ORDER

IT IS, THEREFORE, ORDERED that Fidelity and Guaranty Insurance Company reimburse the Back and Joint Clinic $256.00 for physical medicine services rendered to the workers’ compensation claimant in August and September 2001.

Signed this 9^th of August, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

Shannon Kilgore
Administrative Law Judge

1. The $2.00 difference between the amount billed and the amount paid is not disputed.↑
2. The $2.00 difference between the amount billed and the amount paid is not disputed.↑
3. See 30 Tex. Admin. Code §134.201(Commission’s rule adopting the Medical Fee Guideline by reference).↑
4. Some examples of SOAH decisions interpreting the two-hour limit as applying to timed codes only can be found under the following docket numbers: 453-01-2175.M4 (issued October 9, 2001); 453-01-2689.M5 (issued February 6, 2002); 453-01-3056.M5 (issued March 28, 2002); 453-01-3234.M4 (issued June 26, 2002); 453-01-3441.M4 (issued June 27, 2002). At least one SOAH decision takes the contrary approach, reading the two-hour time limit to apply to both timed and untimed codes. See SOAH Docket No. 453-99-1216.M5 (issued March 2000).↑
5. Fidelity also offered a “question resolution log” (or “QRL”). See Carrier Exhibit 1. Ms. Shank testified that the QRL process is an internal staff procedure whereby members of different divisions within the Commission’s staff jointly address questions that span the responsibility of several divisions. The QRL offered by Fidelity addressed the following question:

“[The rule] sets out two thresholds: Amount of time (2 hours) and number of codes (4). If a health care provider reaches one threshold, can the health care provider continue to treat until the second threshold is reached as long as the continued treatment does not exceed either threshold; or, must the health care provider stop treatment upon reaching one threshold?”

Carrier Exhibit 1. The answer in the QRL was:

As provided for in Medicine Ground Rule (I)(A)(10)(a), a health care provider may be reimbursed for treatment until he or she reaches both thresholds as long as he or she does not exceed either threshold.

Id.

This QRL is not helpful in determining what the Commission intended by Medicine Ground Rule I. A.10.a. First, it does not appear to represent Commission policy; Ms. Shank’s testimony indicates it was generated by staff. Second, it does not address the real issue in the present case: what services count toward the time limit? The either/or approach in this QRL to the two thresholds could be read to be compatible with the view that the two-hour limit only applies to timed codes. Under such a reading, a provider could bill for up to two hours of treatments with timed codes plus up to three additional treatments with untimed codes in one session. This seems to be the approach taken by the MRD in its decision in this case. See TWCC Exhibit 1, pp. 3 – 4.↑