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Title: 

453-04-5077-m5

Date: 

January 28, 2005

Type: 

Retrospective Medical Necessity

453-04-5077-m5

DECISION AND ORDER

Petitioner, San Antonio Accident Injury Care (Provider), appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) denying reimbursement from Via Metropolitan Transit (Carrier) for medical services provided to an injured worker (Claimant). Provider disputes the conclusion of the Independent Review Organization (IRO) that these services were not medically necessary and not adequately documented. The Administrative Law Judge (ALJ) concludes that Provider has not met its burden of proof with respect to all services in dispute provided to Claimant between October 25, 2003, and March 5, 2003. Thus, Provider should not be reimbursed.

I. PROCEDURAL HISTORY

ALJ Penny Wilkov convened a hearing in this case on October 26, 2004, at the State Office of Administrative Hearings (SOAH), Austin, Texas, and after the submission of written closing statements, the record closed on December 13, 2004. Attorney William Maxwell represented Provider. Attorney LeeAnna Gainer Mask represented Carrier. No party contested notice or jurisdiction.

II. DISCUSSION

Introduction

Claimant injured his upper back on ___, while changing a tire on a bus, when the tire slipped out and hit his right arm and his back. Claimant has been diagnosed with myofascial pain syndrome with trigger points, thoracic strain and sprain, and right upper shoulder strain and sprain.[1] Claimant describes symptoms of persistent intermittent pain and spasms with exertion and lifting. Claimant’s history of treatments has included diagnostic and therapeutic injections, chiropractic therapy, and work conditioning as well as diagnostic testing including multiple MRI’s and x-rays.

Carrier denied payment for services including office visits, joint mobilization, electrical stimulation, neuromuscular re-education, gait training, myofascial release, and massage therapy rendered between October 25, 2002, and March 5, 2003. For all services rendered between

October 25, 2002, and January 24, 2003, Carrier used Explanation of Benefits (EOB) Denial Code “N,” for not appropriately documented. For all services rendered between January 27, 2003, and March 5, 2003, Carrier used EOB denial code “V,” for unnecessary treatment based on a peer review.

B.Applicable Law

In order to seek reimbursement for medical services provided, health care providers must submit medical bills for payment on standard forms. 28 Tex. Admin. Code § 134.800(a). The medical bills may be submitted by facsimile, electronic transmission, or by mail. 28 Tex. Admin. Code § 134.800(e). The bills must, however, be submitted no later than the first day of the eleventh month after the date of service. 28 Tex. Admin. Code § 134.801(c). Once the bills are properly submitted, Carrier must review the medical bills and either pay or deny the bill within 45 days of receipt. 28 Tex. Admin. Code § 134.304(a).

In order to deny payment, Carrier must send an explanation of benefits to Provider which includes the payment exception codes with a sufficient explanation to allow Provider to understand the reason for the Carrier’s action. A generic statement without a full description of the reason for reduction or denial of payment does not meet the requirements. 28 Tex. Admin. Code § 134.304(3)(c). The payment exception codes are contained in the form and manner as prescribed by the Commission. 28 Tex. Admin. Code § 134.304(3)(c). In order to deny payment for services on the basis of a peer review, Carrier must provide a copy of the report with the explanation of benefits. 28 Tex. Admin. Code § 134.304(h).

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

C. Parties’ Positions

  1. Provider
  2. Dates of Service between October 25, 2002, and January 24, 2003.

The Explanation of Benefits (EOB) Denial Code notices from Carrier for the disputed dates of service between October 25, 2002, and January 24, 2003, were noted as “N,” for not appropriately documented. The explanations given for the denial were that the documentation provided either did not contain the signature, initials, or name of Provider; or that the documentation did not show that the service was provided as billed; or that the documentation provided did not show treatment was performed to what body area, how long, or how tolerated.[2] However, on some of the claims, Carrier paid half of the amount billed, noting the EOB denial code as AH” for half

payment, pending the receipt of appropriate documentation.[3]

Provider refutes the IRO’s conclusion that in general, “the treatment notes and documentation overall appear to be of the computerized, canned’ variety” and that the notes are “repetitious, contain minimally clinically useful information, and do not show significant progress/substantive change in treatment. . .”[4] Provider instead argues that similar billings were reimbursed on some dates and not on others, validating that the denial was an arbitrary decision by Carrier, rather than any failure to render treatment or failure of documentation. Provider also characterizes an affidavit from Claimant’s treating doctor, Julio Regalado, D.C., who states that he did not give Provider permission to use his stamp on treatment notes, as irrelevant and prejudicial to the case. Provider argues that since Dr. Regalado left Provider’s practice on March 7, 2003, as a disgruntled employee and after the disputed treatments, inadequate documentation or medical necessity is not an issue since there is no contradicting evidence that the treatments were not provided as billed. Provider also objects to Carrier’s reliance on a letter dated August 4, 2003, from another chiropractor, Jeffrey Mattson, D.C., stating that Provider engaged in questionable billing practices, including the use of his stamp without permission, and unethical marketing practices, as vague and irrelevant to the care that was rendered to Claimant.[5] Again, Provider maintains that the services were rendered as billed and that any billing discrepancy was merely procedural and not substantive.

Dates of Service between January 27, 2003, and March 5, 2003.

The EOB Denial Code notices from Carrier for the disputed dates of service, between January 27, 2003, and March 5, 2003, were noted as “V,” with payment denied for unnecessary treatment based on a peer review. The explanation stated that the treatment was unreasonable, unnecessary, and should “be in a home rehab.”[6]

Provider argues that the medical necessity was sufficiently established by the treatment notes and progress reported. Further, Provider argues that it never received a copy of the peer review that was used as a basis for denial of benefits but did not introduce testimony or documents concerning this issue.

Carrier

Dates of Service between October 25, 2002, and January 24, 2003.

Carrier disputes the validity of the records on which the Provider relies to show delivery of services. Instead, Carrier points to the stamped signature on the treatment notes and the absence of supporting documents to show delivery of services. This was supported by an affidavit from Julio C. Regalado, D.C., the treating doctor, who stated on June 27, 2003, that AI never gave San Antonio

Accident and Injury permission to make a rubber stamp of my signature for its use. These forms and the stamped signature were completed, made, and used after I left San Antonio Accident and Injury.”[7] Further, another chiropractor, Jeffrey J. Mattson, D.C., stated that AI could no longer in conscience practice at that office when such unprofessional and unethical business practices were employed.”[8] The MRD agreed, noting that the additional documentation submitted, “did not support delivery of service for the fee component for dates of service 10-25-02 through 1-24-03.”[9]

Carrier presented the testimony of Debbie Wood, an auditor with Medical Audit Consultants, Inc., who contracted with Carrier to review workers’ compensation billing. Her testimony was that the billing was generic and computer generated, the CPT Codes did not match the treatments described, and the treatment notes did not contain an original signature. She was responsible for obtaining the affidavits from Provider’s former chiropractors where they questioned Provider’s billing practices.

Dates of Service between January 27, 2003, and March 5, 2003.

Carrier maintains that the treatments were not reasonable or necessary and supports the IRO’s conclusion. Carrier points to a letter dated January 3, 2003, from Mario A. Bustamante, M.D., the designated doctor and a board certified orthopedic surgeon,who stated that Claimant did not show up for his scheduled designated doctor appointment. However, after Dr. Bustamante reviewed a surveillance disc showing Claimant, prior to the dates of disputed service, bending forward, carrying large bags, holding a child, and getting in and out of a car without any difficulties, he concluded that Claimant had no pain and assigned him a 0% impairment rating.[10]

Debbie Wood testified that the peer review was done by Dr. Parsons on March 28, 2003. However she had no personal knowledge whether the peer review was sent to Provider by Carrier although she testified that it was the usual practice to send the peer review.

III. ANALYSIS

Provider bears the burden of proof that the factual basis or rationale for the MRD’s decision in this case was invalid. Here, it is clear that the records do not support the disputed services either in terms of adequate documentation to show the services were rendered from October 25, 2002, to January 24, 2003, or in terms of medical necessity for services rendered from January 27, 2003, to March 5, 2003.

The services rendered from October 25, 2002, to January 24, 2003, were not shown to have been adequately documented, particularly in light of the affidavit from two of Provider’s chiropractors who both recounted that permission was not given to affix a signature stamp to their treatment notes. Under these circumstances, it calls into question whether the services were

provided and to what extent. Both the IRO and the MRD concurred that the notes were inadequate to support the delivery of services and the ALJ not been convinced otherwise. Therefore, these services should not be reimbursed by Carrier.

Similarly, the services rendered from January 27, 2003, to March 5, 2003, have not been shown to have been medically necessary. This is particularly apparent based on the report by the designated doctor who could not detect any signs of pain or impaired movement prior to the disputed services, based on a covert surveillance of Claimant’s activities. The IRO notes that at the time of the beginning of disputed services, Claimant was ten weeks post-injury for a simple thoracic sprain/strain. The IRO described the lack of clinical insight as to the progression or improvement or response to care provided by the treatment notes. The IRO also noted the lack of description of the therapy, such as an indication of the types of exercises or amount of repetitions, as the basis for the finding that the treatments were not medically necessary. Further, the preponderant evidence did not establish that the peer review was not provided by Carrier to Provider. The ALJ agrees that since there was no indication of medical necessity for these services, Provider should not be reimbursed by Carrier.

In conclusion, Provider is not entitled to reimbursement for all medical services in dispute, from October 25, 2002, to March 5, 2003.

IV. FINDINGS OF FACT

  1. Claimant injured his upper back on ___, while changing a tire on a bus when the tire slipped out and hit his right arm and his back.
  2. Claimant has been diagnosed with myofascial pain syndrome with trigger points, thoracic strain and sprain, and right upper shoulder strain and sprain.
  3. Claimant described symptoms of persistent intermittent pain and spasms with exertion and lifting.
  4. Claimant’s history of treatments has included diagnostic and therapeutic injections, chiropractic therapy, and work conditioning as well as diagnostic testing including multiple MRI’s and x-rays.
  5. At the time of the injury, Claimant’s employer had its workers’compensation insurance through VIA Metropolitan Transit (Carrier).
  6. Provider submitted a claim to Carrier for treatment rendered to Claimant from October 25, 2002, to March 5, 2003, including office visits, joint mobilization, electrical stimulation, neuromuscular re-education, gait training, myofascial release, and massage therapy.
  7. Carrier denied Provider’s request for reimbursement. For all services rendered between October 25, 2002, and January 24, 2003, Carrier used Explanation of Benefits (EOB) Denial Code AN,” for not appropriately documented. For all services rendered between January 27, 2003, and March 5, 2003, Carrier used EOB denial code “V,” for unnecessary treatment based on a peer review.
  8. On October 6, 2003, Petitioner requested medical dispute resolution with the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD).
  9. An Independent Review Organization concluded that the delivery of chiropractic services for the fee component of the dispute was not supported by the documentation provided for services rendered from October 25, 2002, through January 24, 2003.
  10. An Independent Review Organization concluded that chiropractic treatments rendered from January 27, 2003, through March 5, 2003, were not medically necessary.
  11. Provider filed a request for a hearing before the State Office of Administrative Hearings on March 26, 2003.
  12. The Commission sent notice of the hearing to the parties on April 30, 2004. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.
  13. The hearing convened on October 26, 2004, and after the submission of written closing statements, the record closed on December 13, 2004. Provider appeared and was represented by William Maxwell, attorney. Carrier appeared and was represented by LeeAnna Gainer Mask, attorney.
  14. The documentation provided for services rendered from October 25, 2002, through January 24, 2003 was generic and computer generated, the CPT Codes did not match the treatments described, and the treatment notes did not contain a signature on the records supporting delivery of these services.
  15. Julio C. Regalado, D.C., the treating doctor, did not give Provider permission to make a rubber stamp and use the stamped signature on the treatment notes.
  16. In the absence of specific treatment information, including accurate and complete treatment notes, the medical necessity of the treatments rendered was not demonstrated.
  17. Claimant’s activities of bending forward, carrying large bags, holding a child, and getting in and out of a car without any difficulties or pain, prior to the date of disputed services from January 27, 2003, through March 5, 2003, failed to establish the medical necessity of the treatments.

V. CONCLUSIONS OF LAW

  1. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
  2. Provider timely filed a request for hearing before SOAH, as specified in 28 Tex. Admin. Code § 148.3.
  3. The parties received proper and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. ch. 2001 and 1 Tex. Admin. Code § 155.27.
  4. Provider had the burden of proving the case by a preponderance of the evidence pursuant to 28 Tex. Admin. Code § 148.21.
  5. An employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. Code Ann. § 408.021(a).
  6. Health care includes all reasonable and necessary medical services. Tex. Lab. Code Ann. § 401.011(19)(A).
  7. Provider failed to establish that the treatment rendered to Claimant from October 25, 2002, to March 5, 2003, including office visits, joint mobilization, electrical stimulation, neuromuscular re-education, gait training, myofascial release, and massage therapy, are reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).
  8. Provider’s claim should be denied.

ORDER

IT IS ORDERED that San Antonio Accident Injury Care is not entitled to reimbursement by Via Metropolitan Transit for all of the treatments rendered to Claimant from October 25, 2002, to March 5, 2003, including office visits, joint mobilization, electrical stimulation, neuromuscular re-education, gait training, myofascial release, and massage therapy.

Signed January 28, 2005.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 1 Petitioner’s Exhibit 1, page 13 (Roberto Perez-Millan, M.D., January 20, 2003).↑
  2. Respondent’s Exhibit 1, pages 39-132.↑
  3. However, EOB denial code “D,” duplicate bill, and “S,” supplemental payment, were also noted as reasons for denial.↑
  4. Respondent’s Exhibit 2, page 4 (Ziroc, October 2, 2003).↑
  5. Respondent’s Exhibit 1, page 29.↑
  6. Respondent’s Exhibit 1, pages 39-132.↑
  7. Respondent’s Exhibit 1, page 24.↑
  8. Respondent’s Exhibit 1, page 29.↑
  9. Respondent’s Exhibit 2, page 2.↑
  10. Respondent’s Exhibit 1, pages 30-31 (January 4, 2003).↑