DECISION AND ORDER

SCD Back & Joint Clinic, Ltd. (Provider) challenged the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission denying reimbursement to it for one-on-one physical therapy (PT), for other physical medicine treatments, and for related office visits that Provider administered to Claimant from July 23, 2002, through October 24, 2002. The MRD declined to require Texas A & M University System (Carrier) to pay any additional reimbursement for treatments during that period.

Carrier argued that none of the treatment that Provider administered during that period was medically necessary to treat the injury Claimant sustained in___. Carrier also argued that the State Office of Administrative Hearings (SOAH) could consider the medical necessity for all services provided, notwithstanding the fact that the MRD evaluated some dates of service solely on fee grounds. Provider argued that the treatment it provided was necessary to properly treat Claimant’s injury. Provider also argued that because Carrier had not raised medical necessity when it originally denied some claims for reimbursement for one-on-one PT, Carrier was barred from raising it before SOAH.

The Administrative Law Judge (ALJ) concludes that Provider should be reimbursed for one-on-one PT treatments provided on July 24 and 26, 2002, and on August 2, 16, and 19, 2002 and for all PT and related treatments, testing, and office visits conducted between July 23 and 31, 2002. No

additional reimbursement should be paid to Provider for treatments administered on or after August 1, 2002, except for the one-on-one PT sessions listed above. As there was no cross-appeal from Carrier regarding those portions of the MRD Decision adverse to it, Carrier is not entitled to a refund of any payments it may have made for treatments during the period in dispute.

Provider also raised a constitutional issue that the medical dispute resolution process in this case denied him due process of law. Provider did not delineate the specifics of this claim and as all matters here are subject to resolution under the Labor Code and Commission rules, there is no need to address constitutional issues.

The hearing in this matter convened on October 20, 2004, in Austin, Texas, with ALJ Cassandra Church presiding. At Provider’s unopposed request, the record-closing date was extended to January 25, 2005, to provide for briefing of the jurisdictional issue regarding the medical necessity issue. Provider was represented by William Maxwell, attorney. Carrier was represented by Juliana C. Griggs, assistant attorney general. The Commission did not participate in the hearing.

Notice was not a disputed issue in this case.

I. DISCUSSION

A. History of Claim

Claimant was injured on ___, in a fall from a vehicle. He suffered soft-tissue injuries to his left elbow and low back.

Provider began treating Claimant on June 17, 2002.^[1] The segment of Provider’s treatment at issue extended from July 23, 2002, through October 24, 2002. During that time Provider administered a variety of treatments including one-on-one PT, group PT, joint mobilization, myofascial release, massage, and diathermy. Provider also conducted office visits and muscle testing, reviewed reports, and dispensed analgesic balm.

Carrier paid some of the claims for services from this period and denied others. Carrier’s denials were made on a variety of grounds: reductions under the fee guideline (Code F), service beyond the extent of the injury (Code R), unbundling (Code G), insufficient documentation (Code N), and unnecessary medical treatment (Code U).^[2]

Carrier’s denials for one-on-one PT varied among the dates of service. The first date on which Carrier raised the lack of medical necessity was for the PT administered on August 21, 2002. For dates before thatBJuly 24 and 26, and August 2, 2002BCarrier denied payment for some but not

all of the units of one-on-one PT, alleging violation of the guidelines on fees.^[3] For the one-on-one PT provided on August 16 and 19, 2002, Carrier raised the issues of lack of documentation.^[4] For one-on-one PT services provided from August 21, 2002, forward, Carrier denied reimbursement on the basis of both lack of documentation and lack of medical necessity.^[5]

For dates of service between August 16, 2002, and September 18, 2002, Carrier’s EOBs included further explanatory text in one of three forms as follow:

Documentation fails to support need for continued therapy 6 months after a soft tissue injury. (EOBBAudit date September 25, 2002).

Documentation fails to support the need for continued treatment in relation to the injury of 3/27/02. (EOBBAudit date October15, 2002).

Documentation does not support the medical necessity for continued therapy to cure and/or relieve the original injury of 3/27/02. (EOBBAudit date October 23, 2002).

Provider requested medical dispute resolution on all denied claims. Because Provider’s request encompassed denials on both medical necessity and fee grounds, the rules on resolution of medical disputes required those two segments of the request be handled differently.^[6] All services

denied under Code U were referred to an Independent Review Organization (IRO). Those claims denied on fee grounds, i.e., Codes F, G, or N only, were ruled upon by the MRD.^[7] For some dates of service the MRD apparently had no EOB before it.

The MRD Decision ordered reimbursement for some services, which Carrier paid.^[8] The MRD also denied payment for one-on-one PT on dates of service between July 24, 2002, and

September 18, 2002 (early PT), and also for review of a report on September 3, 2002.^[9] The review of the report was denied as undocumented. The IRO reviewer supported the Carrier’s decision against reimbursement for all the medical services it reviewed, those provided between July 23, 2002, and October 24, 2002.

Provider appealed rulings by the MRD on both fee and medical necessity issues on which it did not prevail.

The MRD’s denial of the early PT sparked the jurisdictional dispute between the parties because of the MRD’s rationale which, arguably, addresses the issue of medical necessity.^[10] The MRD’s rationale stated as follows:

Recent review of disputes involving CPT code 97110 by the Medicl Dispute Resolution section as well as analysis from recent decisions of the State Office of Administrative Hearings indicate overall deficiencies in the adequacy of the documentation of this code both with respect to the medical necessity of one-on-one therapy and documentation reflecting that these individual services were provided as billed. Moreover, the disputes indicate confusion regarding what constitutes Aone-on-one. Therefore, consistent with the general obligation set forth in Section 413.016 of the Labor Code, the Medical Review Division (MRD) has reviewed the matters in light of the Commission requirements for proper documentation.

The MRD declines to order payment for code 97110 because the daily notes did not clearly delineate the severity of the injury that would warrant exclusive one-on-one treatment.

B. Jurisdiction

At the hearing, Provider argued that SOAH lacked jurisdiction over the dispute regarding the medical necessity of the early PT because Carrier had not properly raised the issue of lack of medical necessity in its EOBs denying payment on Provider’s claims. In making this argument, Provider relied on SOAH decisions that have barred carriers from raising reasons for denial not set out in EOBs.^[11] Provider further asserted the MRD could not, as a legal matter, rule on medical

necessity because all authority to determine medical necessity issues in the course of the medical dispute resolution had been vested in the IROs by statute.^[12] Provider also argued that the MRD’s reliance on Labor Code 413.016 as authority to rule on the lack of documentation of medical necessity was misplaced because that Labor Code section addresses refunds for wrongfully-paid fees.^[13]

Carrier asserted that it had timely raised the medical necessity issue as to all dates of service, citing particularly the comments appearing on the EOBs in addition to the denial codes.^[14] Carrier also argued that the grant of authority to the Commission in Sec. 413.016, notwithstanding the refund language, was broad enough to encompass the review which the MRD performed on the adequacy of Provider’s documentation of the medical basis for administering one-on-one PT.

The ALJ concludes that Carrier is limited here to the documentation and fee issues raised in its initial EOBs regarding the early PT. The only denial codes or notes on EOBs for services between July 24, 2002, and August 19, 2002, pertain to fee issues. There were a variety of services

and a variety of denial reasons at issue in the early months of Provider’s treatment, so there is no reason Provider should not have taken them at face value. Notwithstanding later developments, the reasons for denial provided in those EOBs did not apprise Provider that Carrier disputed the medical necessity of the services.

The ALJ also concludes that the MRD had ample authority under Labor Code Sec. 413.031 and Commission Rule 133.307.to determine whether Provider’s documentation of procedures comported with Commission rules and guidelines. The MRD could not decide medical necessity issues, and language that could be read to have done so was treated by the ALJ as surplusage. Notwithstanding the MRD’s citation to Labor Code Section 413.016, this Decision need not reach the issue of the scope of that section in order to decide this case.

C. Fee Issues

The MRD Decision addressed the fee issues of whether Provider had documented provision of one-on-one PT as billed, i.e., one therapist working with one client for the entire period billed. In this case the daily treatment notes and activity summaries as well as the testimony of David Bailey, D.C., the treating doctor, demonstrated that the treatment was provided as billed and that no more than eight units of service, i.e., two hours, were billed for each date of service. A maximum of two hours per date of service is permitted under the Commission’s treatment guidelines.^[15] Reimbursement should be paid for one-on-one PT sessions conducted on July 24 and 26, 2002, and on August 2, 16, and 19, 2002.

In regard to the special report item, CPT Code 99080-73, on September 3, 2002, Provider offered no additional evidence regarding the purpose or nature of the service it provided. This code is one that requires additional documentation to justify the amount of compensation sought. No reimbursement should be paid for that service.

D. Medical Necessity Issues

Claimant’s injuries were limited to soft tissue of his low back and left elbow. An MRI of Claimant’s spine on August 1, 2002, showed no disk protrusion or bulging, no nerve root compression, or any other abnormality.^[16] On August 7, 2002, an EMG performed on the L4, L5, and S1 levels of Claimant’s spine showed his spine to be normal.

At the time Provider began treating Claimant, in mid-June 2002, Claimant met only the physical requirements for a light-physical-demand job, as defined in U. S. Department of Labor Dictionary of Occupational Titles (DOT). Claimant’s job was a medium-physical-demand job.^[17] Claimant was experiencing back pain, pain upon movement, and limitations in his range of motion. Claimant’s pain levels in mid-June 2002 were between 5 and 7 on a 10-point scale.^[18]

Before transferring to Dr. Bailey’s care in mid-June 2002, Claimant had received 11 chiropractic treatment sessions comprising only passive modalities.

Dr. Bailey stated that his treatment objective was to restore Claimant to full activity as soon as possible. He stated that injured persons can stand pain better if they are more active, so his main

goal is to get patients more active. He stated that in mid-June Claimant was ready for a more aggressive rehabilitation program to help him become more active rapidly. Dr. Bailey stated that research on rehabilitation methods has shown that patients make faster progress in increasing their strength and flexibility in their therapy if they are more closely supervised.^[19] At his initial evaluation, he anticipated about six weeks of treatment, through the end of July. In mid-June, Claimant was released to work with a 15-pound restriction on lifting, and also restrictions on equipment use, some types of movement, and hours of work.^[20] Claimant was given a home program.

In June 2002, Dr. Bailey stated Claimant had a greater than 50 percent chance of having some residual pain as a result of his injury.^[21] By October 22, 2002, when Dr. Bailey ended the rehabilitation program, his estimate had been upped to between a 50-80 percent change of residual pain, with the development of post-traumatic arthritis noted as highly likely.^[22]

Claimant was reassessed and his strength and range of motion re-measured on July 31, 2002

Claimant had increased his strength and range of motion, but did not meet all physical requirements for a medium-physical-demand job. His reports of pain had decreased from between 5 and 7 on a 10-point scale to generally 3 to 4 on a 10-point scale.^[23] Dr. Bailey referred him for neurological examination and an MRI and also recommended a further six-week session of combined PT and passive treatment.

Claimant’s pain levels remained substantially the same, 3 or 4 on a 10-point scale, throughout the subsequent treatment.^[24]

Dr. Bailey stated that the longer-than-expected treatment time and the need for one-on-one PT arose not from the nature of Claimant’s injuries, but from other medical conditions, or co-morbidities, that Claimant presented. Specifically, Claimant had high blood pressure (hypertension), depression, and other pre-existing mental conditions. In the case of a person with high blood pressure, exercises are carefully selected, introduced at a slower rate, and the patient’s form and breathing more closely monitored to prevent a cerebrovascular event. The patient’s blood pressure is closely monitored. Claimant was taking medication for his hypertension during some or all of the treatment period. Although Provider’s records do not discuss the impact of the mental factors on formulating a treatment plan, Dr. Bailey stated generally that the mental factors had required closer observation of Claimant’s performance.

Dr. Bailey acknowledged that the documentation omitted details about those two conditions, but he asserted that he had nevertheless taken them into account when writing the original treatment plan, when extending the treatment term for an additional six weeks, to mid-September, and again when extending it for an additional month, to mid-October.

On October 22, 2002, Dr. Bailey concluded Claimant had reached a plateau and released him from the rehabilitation program.^[25] Claimant was also released to work full time with moderate lifting and movement restrictions.^[26]

The IRO reviewer’s recommendation against reimbursement for services provided from July 23, 2002, forward was based on that reviewer’s conclusion that there was no evidence of organic disturbance of the Claimant’s spine. The reviewer stated that the treatment provided was well documented, but that the sprain/strain injury Claimant suffered did not warrant nearly 50 treatment sessions. Provider conducted a total of 38 sessions of treatment; Claimant’s prior doctor had conducted 11 treatment sessions.^[27] The IRO reviewer concluded that Provider had failed to demonstrate the need for any of the services provided, including muscle testing, either group or one-on-one PT, joint mobilization, myofascial release, diathermy, massage, analgesic balm, or any office visits or review of reports conducted in connection with the therapy.

E. Analysis

Dr. Bailey provided three reasons why one-on-one therapy would benefit Claimant and aid in his recovery. First, given a patient with Claimant’s characteristics, supervised exercise would help him become more active more rapidly which would be an effective means to help him cope with his pain. Second, supervised exercise is safer for a person with hypertension. Third, Claimant’s mental health conditions required closer supervision. Although the link between the mental health condition and close supervision seemed tenuous, Dr. Bailey’s assertion on this point was uncontradicted.

Given Claimant’s inability in mid-June 2002 to perform at the physical level of his prior job, a six-week course of physical therapy supported by passive modalities was medically necessary to enable him to attempt to meet the requirements of a full-time, medium-physical-demand job and reduce his pain levels. Provider documented that one-on-one PT, i. e., one therapist working only with Claimant, was warranted for someone with Claimant’s characteristics. Provider should be reimbursed for therapy and related modalities and office visits through July 31, 2002.

However, Provider’s medical treatment notes in the ensuing months belie Dr. Bailey’s announced treatment objectives. The evaluations on July 31, 2002, and September 23, 2002, simply do not explain why Claimant had failed to progress as had been expected. They also fail to state whether there was any reasonable expectation that Claimant could or would make further progress. As noted, in his initial evaluation, Dr. Bailey stated it was unlikely Claimant would ever be pain free.

The comments, notes, evaluation, and treatment plan for the two periods of extended therapy were substantially the same as laid out in mid-June, and there is nothing in the record to explain why Claimant’s somewhat-improved condition merited the same intensive therapy and treatment levels throughout August, September, and October 2002. Indeed, this extended, unchanging program seemed specifically at odds with Dr. Bailey’s stated goal to increase Claimant’s activity level rapidly. If Claimant’s mental problems or hypertension were significant barriers to his physical progress, Provider did not document their impact on the rehabilitation program nor did there seem to be any modifications to the rehabilitation program over time to address those issues. Provider simply added more of the same types of treatment sessions.

The ALJ concludes that no additional reimbursement is due to Provider for treatments after July 31, 2002, as there was no demonstrated medical necessity for those treatments.

F. Summary

Reimbursement is due Provider for one-on-one PT administered to Claimant on July 24 and 26, 2002, and August 2, 16, and 19, 2002. No reimbursement is due for the report-handling activity on September 3, 2002.

Reimbursement is due Provider for PT, office visits, testing, and related treatments administered to Claimant through July 31, 2002. No additional reimbursement is due for any PT, office visits, testing, and related treatments after that date.

Because Carrier did not appeal those portions of the MRD Decision adverse to it, Carrier is not entitled to a refund of any payments it has already made.

II. FINDINGS OF FACT

1. On ___, Claimant injured his low back and left elbow in a fall from a vehicle.
2. Texas A & M University System (Carrier) was the responsible insurer.
3. Claimant suffered a sprain/strain injury to his lower back and a soft tissue injury to his elbow.
4. Claimant did not suffer any neurological deficits or impairments as a result of his injury. His spine was not damaged.
5. Between ___, and June 17, 2002, Claimant was treated with 11 sessions of chiropractic care involving only passive modalities.
6. SCD Back and Joint Clinic, Ltd. (Provider), began treating Claimant on June 17, 2002.
7. On June 17, 2002, Claimant was capable of performing at a light-physical-demand level under the U.S. Department of Labor dictionary of occupational titles. He was employed in a medium-physical-demand job.
8. In June 2002, Claimant reported low back pain, had increased pain upon movement, and limited range of motion in his back.
9. Between June 17, 2002, and October 22, 2002, Claimant was released to light-duty, part time work, with a 15-pound restriction on lifting, and limits on some body movements and equipment usage.
10. David Bailey, D.C., stated his treatment goal in June 2002 was to return Claimant to activity as rapidly as possible as a means to help him cope better with his pain.
11. Beginning June 17, 2002, Provider administered an active six-week rehabilitation program, to Claimant, including one-on-one and group physical therapy (PT) supplemented by various passive modalities including myofascial release, joint mobilization, massage, and diathermy.
12. Provider also conducted periodic muscle and strength testing.
13. Claimant had anxiety and depression regarding recovery from his injury, and a prior mental health condition.
14. Claimant had high blood pressure (hypertension) which required additional supervision during PT to prevent a cerebrovascular event and to make sure the he was breathing properly and using proper form.
15. During some or all of the treatment period, Claimant was taking medication for his hypertension.
16. In Claimant’s case, a six-week session of one-on-one PT and related services was needed to speed up Claimant’s recovery time to address his hypertension and mental conditions, and help him meet the requirements of a medium-physical-demand job.
17. By July 31, 2002, the end of the initial six-week treatment period, Claimant could not meet all the physical demands of a medium-physical-demand job.
18. June 2002, Claimant was reporting continuous low back pain at levels of between 5and 7 on a 10-point scale. By the end of July 2002, he was reporting pain levels of between 3 and 4 on a 10-point scale.
19. As of June 17, 2002, Claimant was not expected to become pain free and had a greater than 50 per cent chance of some residual pain.
20. Claimant’s pain levels remained at approximately the level of 3-4 on a 10-point scale for the duration of Clamant’s rehabilitation, through October 22, 2002.
21. Beginning in August 2002, Provider administered eleven additional weeks of the same rehabilitation program initiated on June 17, 2002.
22. There was no medical reason arising from the nature of the sprain/strain injury which supported PT beyond a six-week period beginning June 17, 2002 and ending on July 31, 2002.
23. There was no medical reason arising from his other health conditions, i.e., hypertension or mental health conditions, which supported PT beyond a six-week period beginning June 17, 2002.
24. Carrier denied payment for a number of the treatments Provider administered to Claimant from July 24, 2002, through December 16, 2002, on the various fee grounds. Specifically, Carrier denied payment on the basis that the services were not documented, were outside the Commission’s guidelines for medical fees, or should be bundled.
25. On July 24 and 26, 2002, and on August 2, 2002, Carrier denied payment for some, but not all units, of one-on-one PT on the basis that the billings were inconsistent with Commission fee guidelines.
26. On August 16 and 19, 2002, Carrier denied payment for one-on-one PT on the basis that it was inadequately documented.
27. In denying the claims, Carrier did not raise the issue of lack of medical necessity in regard to one-on-one PT performed by Provider on July 24 and 26, 2002, and on August 2, 16, and 19, 2002.
28. For dates of services between July 23, 2002, and October 22, 2002, Carrier denied payment for one-on-one PT, and other procedures and treatments, including office visits and muscle testing, on the basis that they were not medically necessary.
29. Carrier denied payment for the report review or preparation activity on September 3, 2002, on the basis that it was inadequately documented.
30. Provider appealed the Carrier’s determination to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission.
31. On March 26, 2004, based on the review by an Independent Review Organization (IRO), Ziroc, the MRD denied further reimbursement to Provider for services rendered from July 23, 2002, through October 24, 2002, on the basis the services were not necessary.
32. On March 26, 2004, the MRD denied further reimbursement to Provider for one-on-one PT administered on eight dates of services after July 24, 2002 and for a special report item on October 3, 2003, on the basis the services were not properly documented.
33. On July 23 and 26, 2002, and on August 2, 16, and 19, 2002, Provider administered one-on-one PT, i.e., one therapist worked with Claimant for all time billed. Provider billed for no more than two hours, or eight 15-minute units, for PT on each date of service.
34. Provider did not explain or demonstrate the nature of the special report service billed on September 3, 2002.
35. On March 26, 2004, the MRD ordered Carrier to reimburse Provider for some services, office visits, and treatments. Carrier did not appeal the MRD Decision.
36. On April 22, 2004, Provider requested a hearing on the MRD Decision for those dates of service on which it did not prevail.
37. On June 1, 2004, the Commission issued a notice of hearing that included the date, time, and location of the hearing, the applicable statutes under which the hearing would be conducted, and a short, plain statement of matters asserted.
38. Administrative Law Judge Cassandra Church conducted a hearing on the merits on October 20, 2004, and record closed on January 25, 2005, to permit briefing on a jurisdictional issue.

III. CONCLUSIONS OF LAW

1. 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. Lab. Code Ann. 413.031 and Tex. Govt Code Ann. ch. 2003.
2. Provider timely requested a hearing, as specified in 28 Tex. Admin. Code148.3.
3. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. 2001.051 and 2001.052.
4. Provider, as the petitioning party, has the burden of proof in this proceeding pursuant to Tex. Lab. Code Ann. 413.031, 1 Tex Admin. Code 155.41 (b), and 28 Tex. Admin Code 148.21(h).
5. Provider met its burden of proof to show that one-on-one physical therapy sessions conducted on July 24 and 26, 2002, and on August 2, 16, and 19, 2002, were conducted in accordance with and billed in accordance with the Commission’s 1996 Medical Fee Guideline, 28 Tex. Admin. Code134.201.
6. Provider failed to meet its burden of proof to show that a report-handling activity conducted on September 3, 2002, was conducted in accordance with and billed in accordance with the Commission’s 1996 Medical Fee Guideline, 28 Tex. Admin. Code 134.201.
7. Provider met its burden of proof to show that one-on-one physical therapy, group physical therapy, joint mobilization, myofascial release, massage, diathermy, the review of reports, the dispensing of analgesic balm , and any related office visits conducted during the period from July 23, 2002, through July 31, 2002, were medically necessary to treat or reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Lab. Code Ann. 408.021 and 401.011(19).
8. Provider failed to meet its burden of proof to show that sessions of one-on-one physical therapy, other than those referenced in Conclusion No. 5, group physical therapy, joint mobilization, myofascial release, massage, diathermy, the review of reports, the dispensing of analgesic balm, and any related office visits conducted during the period from August 1, 2002, through October 24, 2002, were medically necessary to treat or reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Lab. Code Ann. 408.021 and 401.011(19).

ORDER

IT IS ORDERED that all claims by SCD Back & Joint Clinic, Ltd., for reimbursement for one-on-one physical therapy, group physical therapy, joint mobilization, myofascial release, massage, diathermy, the review of reports, the dispensing of analgesic balm , and any related office visits conducted during the period from August 1, 2002, through October 24, 2002, on Claimant’s behalf, and for any report review or preparation activity on September 3, 2002, are hereby denied.

IT IS FURTHER ORDERED that Texas A & M University System reimburse SCD Back & Joint Clinic, Ltd., for unpaid units of one-on-one physical therapy conducted on July 24 and 26, 2002, and August 2, 16, and 19, 2002, and for any unpaid treatments administered or office visits conducted between July 23, 2002, and July 31, 2002.

Signed March 28, 2005.

_______________________________________________ CASSANDRA J. CHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Provider Exh. 1, pp. 1-9.↑
2. Crrier attached to its brief of January 25, 2005, copies of the explanation of benefits (EOBs) it issued. Provider did not dispute the authenticity of any of these EOBs. Although they had been discussed at the hearing, the exhibits of neither party included them. The ALJ hereby includes these EOBs into the record of this case, and will identify them as ACarrier Exh. Supp C, in order to distinguish it from Carrier Exh. C, comprising the Provider’s claims for reimbursement.↑
3. Carrier Exh. Supp C.↑
4. The extent of injury issue effectively dropped out of this medical fee dispute when the Commission ruled against Carrier on the extent of injury issue. Lack of documentation (Code N) was the remaining reason for denial for PT on August 16 and 19, 2002.↑
5. The MRD Decision referenced PT denied on fee grounds as occurring through September 18, 2002. However, the latest date on which Carrier used only fee denial codes appears to have been the EOB for services on August 19, 2002. Carrier began denying payment under the U code on August 21, 2002.↑
6. Tex. Labor Code Ann. ‘ 413.031 (e) and (e-1). This provision requires resolution of medical necessity issues by an Independent Review Organization (IRO):

(e) Except as provided by Subsections (d), (f), and (m), a review of the medical necessity of a health care service provided under this chapter or Chapter 408 shall be conducted by an independentreview organization under Article 21.58C, Insurance Code, in the same manner as reviews of utilization review decisions by health maintenance organizations. It is a defense for the insurance carrier if the carrier timely complies with the decision of the independent review organization.

(e-1) In performing a review of medical necessity under Subsection (d) or (e), the independent review organization shall consider the commission’s health care reimbursement policies and guidelines adopted under Section 413.011 if those policies and guidelines are raised by one of the parties to the dispute. If the independent review organization’s decision is contrary to the commission’s policies or guidelines adopted under Section 413.011, the independent review organization must indicate in the decision the specific basis for its divergence in the review of medical necessity. This subsection does not prohibit an independent review organization from considering the payment policies adopted under Section 413.011 in any dispute, regardless of whether those policies are raised by a party to the dispute.↑

7. 28 Tex. Admin. Code ” 133.307 and 133.308.↑
8. Carrier Exhs. F and G.↑
9. Carrier Exhs. E and G.↑
10. Carrier Exh. G, p. 4.↑
11. SOAH Docket No. 453-02-2026.M5 (June 19, 2002), SOAH Docket No. 453-02-0731.M5 (March 14, 2002),and SOAH Docket No. 453-02-2758.M5 (January 25, 2002).↑
12. Provider’s Brief, January 12, 2005.↑
13. Labor Code Section 413.016, Payments in Violation of Medical Policies and Fee Guidelines, states as follows:

(a) The division shall order a refund of charges paid to a health care provider in excess of those allowed by the medical policies or fee guidelines. The division shall also refer the health care provider alleged to have violated this subtitle to the division of compliance and practices.

(b) If the division determines that an insurance carrier has paid medical charges that are inconsistent with the medical policies or fee guidelines adopted by the commission, the division shall refer the insurance carrier alleged to have violated this subtitle to the division of compliance and practices. If the insurance carrier reduced a charge of a health care provider that was within the guidelines, the insurance carrier shall be directed to submit the difference to the provider unless the reduction is in accordance with an agreement between the health care provider and the insurance carrier. (Acts 1993, 73rd Leg., ch. 269, ‘ 1, eff. Sept. 1, 1993).↑

14. Carrier’s Brief, January 25, 2005.↑
15. 1996 Medical Fee Guideline (MFG) 28 Tex. Admin. Code ‘ 134.201 (Eff. date April 1, 1996). The 1996 MFG is referenced in the MRD Decision and no party disputed its application to the dates of service at issue in this case.↑
16. Carrier Exh. D.↑
17. Provider Exh. 1, pp. 1-9.↑
18. Provider Exh. 1, pp. 80-84.↑
19. Provider Exh. 2.↑
20. Provider Exh. 1, p. 14.↑
21. Provider Exh. 1, p. 9.↑
22. Provider Exh. 1, p. 39.↑
23. Provider Exh. 1, pp. 12-19.↑
24. Carrier Exh. D.↑
25. Claimant was seen twice between October 22 and December 16, 2002. The MRD ordered reimbursement for those visits which the Carrier paid.↑
26. Provider Exh. 1, pp. 33-45.↑
27. Carrier Exh. D.↑