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At a Glance:
Title:
453-01-1077-m2
Date:
March 15, 2002
Status:
Pre-Authorization

453-01-1077-m2

March 15, 2002

DECISION AND ORDER

This dispute arose as a result of health care treatments and services provided by Beacon Health, Ltd. and Neurobehavioral Resources (collectively NHS)[1] to P.B., a police officer, of the City of Houston (City), who sustained a work-related traumatic brain injury on__________. The City is a self-insured provider of workers’ compensation. The services were provided after NHS sought preauthorization for the services, but prior to the Medical Review Division’s order granting the services requested.

Originally the subject of three separate proceedings, the Administrative Law Judge (ALJ) consolidated the proceedings in a single cause of action because of the common issue: Is the carrier liable for the costs relating to treatments and services provided prior to the date of the Medical Review Division’s or SOAH’s order? The parties agreed that the determination of this issue was dispositive and submitted the case for the ALJ’s determination based upon the stipulated facts set out below and without a hearing. The ALJ finds that the City is not liable for the costs relating to treatments and services provided prior to the date of the MRD’s order.

I. JURISDICTION

The Texas Workers' Compensation 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 has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a final decision and order, pursuant to Tex. Lab. Code Ann. §§ 402.073(b) and 413.031(d) and Tex. Gov’t Code Ann. Ch. 2003.

II. PROCEDURAL HISTORY

A. SOAH Docket No. 453-01-1077.M2

This matter was referred to the State Office of Administrative Hearings (SOAH) when the City requested a hearing on November 6, 2000, subsequent to the issuance of an amended decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) on October 23, 2000. This docket involves a pre-authorization dispute between the City and Neurobehavioral Resources, Co-Respondent. The Commission issued a notice of hearing on November 28, 2000.

B. SOAH Docket No. 453-01-1439.M5

This matter was referred to SOAH when the City requested a hearing on December 13, 2000, subsequent to the issuance of a MRD decision on December 7, 2000. This docket involves a reimbursement dispute between the City and Neurobehavioral Resources, both of which are claiming Petitioner and Co-Respondent status. The Commission issued a notice of hearing on January 9, 2001.

C. SOAH Docket No. 453-01-2681.M4

This matter was referred to SOAH when Beacon Health, Ltd., requested a hearing on March 28, 2001, subsequent to the issuance of a MRD decision on March 5, 2001. This docket involves a reimbursement dispute between Beacon Health, Ltd. Petitioner, and the City, Co-Respondent. The Commission issued a notice of hearing on April 19, 2001.

D. Consolidated Proceeding

Neurobehavioral Resources filed a Motion to Consolidate the three proceedings on April 27, 2001. The City filed its response on May 2, 2001. The City also filed a Motion to Withdraw Request for Hearing in 453-01-1077.M2 on April 19, 2001. The ALJ issued an order on June 21, 2001, consolidating the proceedings and denying the motion to withdraw. The evidentiary hearing was scheduled for October 8, 2001.

On September 17, 2001, the parties filed a Joint Motion for Summary Disposition setting forth stipulated facts and the issue to be resolved by summary disposition. On September 26, 2001, the ALJ issued an order canceling the hearing on the merits and setting forth a briefing schedule for the parties to submit their respective briefs and proposed findings of fact and conclusions of law. The record closed on January 18, 2002, after NHS supplied clarifying information in response to a question posed by the ALJ.

III. STIPULATIONS

  1. Prior to the date of the proposed treatment or service, the healthcare provider notified the carrier of the recommended treatment of or service for the compensable injury and requested preauthorization in a manner consistent with 28 Tex. Admin. Code § 134.600(d).
  2. The carrier denied preauthorization in a manner consistent with 28 Tex. Admin. Code §134.600(e) and (f).
  3. A dispute arose over the denial of preauthorization by the carrier and the parties proceeded to medical dispute resolution as described in the Workers’ Compensation Act, Tex Labor Code § 408.001et seq.
  4. During the pendency of the dispute, the healthcare provider provided the treatments and services described in paragraph 1.
  5. The treatments and services were not provided to treat a life-threatening emergency.
  6. The treating doctor, his/her representative, or the injured employee did not receive preauthorization from the carrier prior to the performance of the treatments or services.
  7. The Medical Review Division of the Texas Workers’ Compensation Commission (Commission) or the State Office of Administrative Hearing (SOAH) ordered that the Carrier is liable for the reasonable and necessary medical costs of the treatments and services provided as and when needed to treat the compensable injury.

IV. ISSUE

Is the carrier liable for the costs relating to treatments and services provided prior to the date of the Commission’s or SOAH’s order?

V. APPLICABLE STATUTES AND RULES

According to section 408.021 of the Act,

(a)An employee who sustains 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:

  1. cures or relieves the effects naturally resulting from the compensable injury;
  2. promotes recovery; or
  3. enhances the ability of the employee to return to or retain employment.

Section 413.014 of the Act addresses the issue of preauthorization:

(a) The commission by rule shall specify which health care treatments and services require express preauthorization by the insurance carrier. Treatments and services for a medical emergency do not require express preauthorization.

(b) The insurance carrier is not liable for those specified treatments and services unless preauthorization is sought by the claimant or health care provider and either obtained from the insurance carrier or ordered by the commission.

Pursuant to the provisions of the Act, the Commission promulgated rules to ensure the orderly progression of preauthorization dispute through the dispute resolution system at 28 Tex. Admin. Code ch. 134.

Subchapter G. Treatments and Services Requiring Preauthorization § 134.600. Procedure for Requesting Preauthorization of Specific Treatments and Services

  1. (a)The insurance carrier is liable for the reasonable and necessary medical costs relating to the health care treatments and services listed in subsection (h) of this section, required to treat a compensable injury, when any of the following situations occur:
  2. (1) there is a documented life-threatening degree of a medical emergency necessitating one of the treatments or services listed in subsection (h) of this section;

  3. (2) the treating doctor, his/her designated representative, or injured employee has received preauthorization from the carrier prior to the health care treatments or services; or

(3) when ordered by the commission.

(h) The healthcare treatments and services requiring preauthorization are:

(14) nursing home, convalescent, residential, and all home health care services and treatments.

VI. DISCUSSION

As stated previously, the issue in this case is whether the City is liable for the services provided prior to the time the MRD issued its order approving treatment. The Commission interprets the statute and its preauthorization rule to mean that the effective date of preauthorization is the date an order is issued by the Commission. Therefore, the Commission supports the City’s position in this proceeding.

A. NHS’s Position

NHS relies primarily on section 408.021 of the Act in support of its position. Section 408.021 provides that an employee who sustains a compensable injury “is entitled to all health care reasonably required by the nature of the injury as and when needed.” NHS points out that the MRD held that the services provided by NHS were “reasonably required within the meaning of sections 408.021 and 401.011(19) of the act.”[2]

NHS argues that section 413.014 of the Act must be read in harmony with section 408.021, because each provision of the statute must be construed in the context of the entire statute.[3] To ensure that injured workers receive care when needed, the statute must be construed so that healthcare providers who seek preauthorization for medical services are paid for those services regardless of when the Commission ultimately issues its order that the insurance carrier is liable for the health care services.

NHS describes the process as follows. The health care provider first seeks preauthorization from the insurance carrier. If the insurance carrier denies preauthorization, then the health care provider turns to the Commission for a finding of liability. Should the Commission find liability, the Commission would not be ordering something new or separate, but what the insurance carrier failed to grant--authorization for the specified treatments and services that were needed when the health care provider sought preauthorization.

NHS asserts that the Act does not require the Commission’s order to precede the health care treatments and services; rather, it requires that the Commission find the insurance carrier liable. NHS asserts that the Commission’s role is to provide an independent assessment about whether the insurance carrier’s denial of preauthorization was correct. The evidence assessed relates to the need for health care at the time preauthorization was sought, not the time when the Commission’s order is finally rendered. When the Commission issued its order, the City became liable for the cost of the health care from the time it was needed, not when it was ordered.

NHS argues that Commission rule 134.600, like the Act, expressly makes the insurance carrier liable for the reasonable and necessary medical costs required to treat a compensable injury if MRD orders the insurance carrier liable. NHS asserts that nothing in the rule limits liability only to services rendered after the date of the MRD order. Limiting the carrier’s liability to costs incurred after MRD issues its order would contradict the part of the rule that makes the carrier liable for all of the reasonable and necessary medical costs required to treat the compensable injury. NHS also argues that because the limiting language, “prior to the health care treatments or services,” which exists in subsection (a)(2) of the rule, is absent from subsection(a)(3), the rules of construction dictate the conclusion that the Commission did not intend it to be a requirement. Thus, the Commission did not require that the MRD order be issued prior to the health care being provided. According to NHS, the rule provides for MRD to issue an order determining liability apart from the preauthorization process. Under the rule, liability results when ordered by MRD, regardless of the timing of the order in reference to the date of treatment.

NHS argues that the City’s position leaves open only two possibilities for an injured employee. The injured employee may receive health care services for a medical emergency or the injured employee must wait a year or more for necessary services and treatment until the provider has exhausted the administrative process to obtain an MRD order. Such an interpretation would not result in the provision of reasonably required health care services as and when needed as contemplated by the Act.

B. The City’s Position

In order for the carrier to be liable for the treatments and services enumerated within Commission rule 134.600(h), the City argues, the provider must have express preauthorization from either the Carrier or an order from the Commission prior to the performance of the services in question. A Commission’s order under Rule 134.600(a)(3) cannot order liability for services already performed without preauthorization; it can only order liability for services expressly preauthorized. For NHS to prevail in this proceeding, the City argues, NHS must demonstrate that the order of the Commission, which was issued after the performance of the services that are the basis of this dispute, is retroactive.

The City argues that any ambiguity that may exist in Commission rule 134.600 is resolved when it is read along with section 413.014 of the Act, the statute from which it was derived. Cities assert that the plain language of section 413.014 indicates that preauthorization can only be ordered before services are delivered, and a provider who delivers those services before obtaining preauthorization is not entitled to a retrospective review of the services and is not entitled to reimbursement for those services. The City points out that the subject of the verbs “sought,” “obtained,” and “ordered” in the statute is the word preauthorization.[4]

The City points out that the Commission’s interpretation of the statute and its rules supports its position in this proceeding. When a statute is construed by an administrative agency charged with its enforcement, the agency’s construction is entitled to serious consideration so long as it is reasonable and does not contradict the plain meaning of the statute.[5]

The City also notes that the great majority of SOAH decisions have repeatedly held that preauthorization must issue prior to the performance of the service.[6] The plain meaning of reauthorization is “authorized prior to performance.” The City asserts further that neither the Commission nor SOAH even possess authority over a preauthorization dispute if the services have been performed without an order or without express carrier approval.[7] Neither SOAH nor the Commission has the authority to retrospectively review services that require preauthorization.[8] The Act does not provide authority for the Commission to retroactively approve the Petitioner’s provision of treatments. [9] The only thing that can be ordered by the Commission for services requiring preauthorization is preauthorization. Thus, it is impossible for the commission to preauthorize treatments that have been performed.[10]

The City argues that the proper course of action in this case would have been for NHS to seek expedited review under Commission rules 133.304 and 133.305, which NHS did not do. The City contends that much of the delay in the preauthorization process was due to NHS’s tardiness in seeking medical dispute resolution. Instead of immediately proceeding to dispute resolution, NHS simply provided the services for almost a year without the requisite preauthorization. NHS did not submit its first request for dispute resolution to the Commission until August 2000. The MRD acted expediently upon this request and issued its first order on September 12, 2000.

The City asserts that NHS’s position makes no sense in light of the expedited process. Why speed up the process if the service can be performed at any time after the provider requests preauthorization, regardless of the carrier’s response? If the legislature intended a retrospective review (like all other medical disputes) why the need to draft entirely different medical dispute resolution rules for preauthorization cases? As prior SOAH decisions have noted, there would be no need for such an expedited process if preauthorization from the Commission were not required.[11] The City argues that NHS’s argument in this dispute strips the preauthorization rule of all meaning. The preauthorization rule would be eviscerated, and every medical treatment (regardless of the preauthorization requirement) would be subject to review.

C. The Commission’s Position

The Commission notes that NHS relies predominately on section 408.21(a) of the Act, which provides that an injured worker is entitled to health care benefits “as and when needed.” NHS defines “as and when needed” as that point at which the care was initially requested from the carrier. The Commission contends that NHS’s position is unreasonable because it would render the entire preauthorization process meaningless. The Commission asserts that the expedited preauthorization process provided in the Commission’s rules 134.600 and 148.4(a) would not be needed if preauthorization can be given retroactively. The Commission argues that the expedited procedures were intended to provide health care “as and when needed.” Moreover the rules also provide safeguards for special situations. If an emergency exists, the provider may render the service as long as it can document the emergency. Any bad faith denial by a carrier would subject the carrier to sanctions under Chapters 415, 416, and 418 of the Act.

The only reasonable interpretation of the rule is that preauthorization is effective at the time of the Commission order and prior to providing the service. The Commission points to a recent SOAH decision that has squarely addressed whether the provisions of the preauthorization rule meet the statutory requirement of health care “as and when needed.”[12] As ALJ Rusch noted,

Claimant argues, in effect, that the language of Section 413.014 conflicts with the language in Section 408.021 which provides that an employee with a compensable injury is entitled to all health care reasonably required by the nature of the injury “Aas and when needed.” If Section 413.014 permits a carrier to delay treatment for months, a claimant is deprived of needed care “as and when needed.” The ALJ understands and is sympathetic to Claimant’s concerns. The equities in this case appear to be on Claimant’s side. The express provisions of the law, however, are not. Three aspects of the law appear to counter Claimant’s arguments. First, Section 413.014 provides for immediate treatment without preauthorization in emergency situations; no evidence was presented here suggesting that the requested MRI was administered in an emergency situation. Second, Commission rules require that a carrier expedite preauthorization requests, (see 28 Tex. Admin. Code §§ 134.600), and SOAH expedites contested case hearings related to preauthorization requests. There would be no need for such expedited processes if preauthorization from the Commission were not required before the services are provided. Finally, a carrier who denies a preauthorization request in bad faith is subject to sanctions under Chapters 415, 416, and 418 of the Act

For these reasons, the ALJ agrees with the Carrier that the Act and rules require preauthorization before a claimant may obtain the requested treatment or services. In order for the Carrier to be liable for the MRI at issue here, Claimant or her health care provider had to receive an order preauthorizing the service. The language of Section 413.014 requires that preauthorization be sought and (1) obtained or (2) ordered.

The ALJ appreciates Claimant’s frustration and believes many of her arguments carry considerable moral force. The ALJ acknowledges that application of the law leads to a harsh result in this case. However, the ALJ has no authority to disregard the law or impose a different process than the one created by the Legislature.[13]

The Commission notes that a substantial number of decisions rendered at SOAH have established that the Commission order triggers the entitlement to treatment or services requiring preauthorization.[14] Preauthorization of services becomes effective upon the issuance of the Commission’s order. The Commission argues that the effective date of the preauthorization in this case was September 12, 2001, the first date MRD issued an order.[15]

D. ALJ’s Analysis

Section 413.014(a) of the Act requires the Commission to specify by rule those health care treatments and services that require express preauthorization by the insurance carrier. Commission Rule 134.600(h) lists 16 categories of services that require preauthorization for a health care provider to qualify for payment from a carrier. Those services include non-emergency hospitalizations, physical therapy or occupational therapy beyond eight weeks of treatment, durable medical equipment in excess of $500 per item, nursing home, convalescent, residential, and home health care services and treatments. According to the statute, insurance carriers will not be liable for those treatments delineated by the Commission unless preauthorization is sought by the health care provider and either obtained from the carrier or ordered by the Commission. § 413.014(b). It is clear from the statute that preauthorization must be (i) sought and obtained or (ii) sought and ordered.[16] Preauthorization is the subject of the verbs “sought,” “obtained,” and “ordered,” not treatment or services.[17]

Because Commission rule 134.600 was promulgated under the authority of section 413.014, it must be interpreted consistently with the section. Although NHS attempts to separate § 134.600(a) (3) from the remainder of the rule, the title applied to section 134.600 is “Procedure for Requesting Preauthorization of Specific Treatments and Services.” The provision of the rule that makes the carrier liable for services and treatments “when ordered by the commission” concerns preauthorization. Preauthorization means “advance approval.”[18]

Although the phrase “when ordered by the Commission,” has presented some confusion, there is little doubt that the Commission’s order can only order liability for services that receive preauthorization. As ALJ Zukauckas noted,

[t]he only arguably vague language of the rule is “when ordered by the commission.” That language, however, must be read in the context of the statute from which the rule gets its authority, Section 413.014(b) of the Act. Although the ALJ recognizes that other SOAH ALJs have held to the contrary, this ALJ finds the plain language of the section 413.014 makes clear that what can be “ordered by the commission,” for services requiring preauthorization, is preauthorization. Thus, it is impossible for the commission to preauthorize treatments that have already be performed.[19]

As noted by ALJ Zukauckas, two SOAH ALJs have held to the contrary. In one decision the ALJ determined that a liberal construction of the Act would harmonize the benefit entitlement provision of section 408.021 with the preauthorization provision of section 413.014 to best achieve the basic purpose of providing health care as and when needed.[20] The ALJ also interpreted rule 134.600(a) to only require preauthorization by the carrier prior to the rendering of services, not preauthorization by the Commission. That decision was followed by one other ALJ, who determined that the issue is whether the service was reasonable and necessary when the request for preauthorization was made.[21] In those three decisions, however, the ALJs actually upheld the MRD decisions denying preauthorization because the providers did not prove that the treatments were medically necessary. Whether preauthorization could be issued retroactively was not squarely considered.

As the City and the Commission noted, the great weight of opinion at the SOAH is that “when ordered by the Commission” does not create liability for all treatment rendered, but preauthorization for the certain services that require preauthorization. Because the plain meaning of section 413.014 is specific in its requirement of preauthorization, its meaning must control over the more general provision of section 408.021.[22] NHS argues, however, that the Supreme Court’s decision in Continental Casualty overrules those decisions at SOAH and supports its position that when the Commission orders preauthorization after the carrier has denied preauthorization, that order instructs the carrier to pay all the medical bills, including those incurred prior to the Commission order.[23] The ALJ finds that NHS’s reliance on Continental Casualty is misplaced. The facts in Continental Casualty were not as NHS suggests, and the court did not approve the outcome proposed by NHS. In Continental Casualty, Continental sought review of the hearing officer’s determination that Continental had preauthorized the treatment, which Continental disputed. But because the court was considering only “whether Continental [was] entitled to judicial review in the first instance,” the court expressed no opinion on the merits of that issue.[24]

Although the length of time for this case to get to the MRD was unfortunate, NHS is not entirely without fault. According to the MRD decision in M2-01-0106-01 (453-01-1077.M2), the City’s denial was dated March 8, 2000. According to the City, NHS did not file its request for dispute resolution until August 2000. Therefore, NHS may not blame the entire yea’s delay for an order to issue from MRD on the City or the Commission. Under the Commission’s rules, preauthorization requests are to be handled expeditiously. Under the rules that existed at the time of the request for preauthorization, carriers were to respond within three to four working days of the request. 28 TAC § 134.600(e). Today the rules are even more explicit. Carriers are to respond in three to four working days. 28 TAC § 134.600(f). Within 15 days of receiving a denial, the provider must request reconsideration from the carrier. 28 TAC § 134.600(g)(1). The carrier must then respond in seven days (five working days). 28 TAC §§ 133.305(c)(2) and 134.600(g)(2)(A). If still a denial, the provider must file a request for dispute resolution within 45 days. 28 TAC 133.305(d)(5). As the City noted, in this proceeding MRD issued its initial decision less than one and a half months after receiving the request. If a provider is diligent, the process may take only two to three months. Because SOAH decisions have found in cases involving emergency treatment that a week or two delay did not render the treatment a non-emergency, the time period during which a person may be in limbo need not be substantial.[25]

Even though an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed, the Act and the rules require that preauthorization or advance approval be given before certain services and treatments are provided. In the absence of express preauthorization obtained from the carrier or ordered by the Commission, the carrier is not liable for those certain treatments or services, regardless of the reasonableness of the treatment. Preauthorization cannot be issued retroactively. A provider who delivers those services before obtaining preauthorization is not entitled to a retrospective review of the services and is not entitled to reimbursement for those services.

VII. FINDINGS OF FACT

  1. Officer PB (the Claimant) sustained a compensable, work-related injury while employed by the City of Houston (the City), a self-insured employer.
  2. Neurobehavioral Resources, Ltd. and Beacon Health, Ltd. (collectively, NHS) sought preauthorization from the City to treat the Claimant for his compensable injury prior to the date of the proposed treatment or service.
  3. The City denied preauthorization.
  4. A dispute arose over the denial of preauthorization by the City and the parties proceeded to medical dispute resolution.
  5. During the pendency of the dispute, NHS provided the disputed treatment and services.
  6. The treatments and services were not provided to treat a life-threatening emergency
  7. In this case, the treating doctor, his/her representative, or the injured employee did not receive preauthorization from the carrier prior to the performance of the treatments or services.
  8. The parties sought dispute resolution review with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission).
  9. On September 12, 2000, the MRD issued its Findings and Decision preauthorizing the proposed care.
  10. On October 23, 2000, the MRD issued Amended Findings and Decision preauthorizing the services and ordering that the City is liable for the reasonable and necessary medical costs of the treatments and services provided as and when needed to treat the compensable injury.
  11. On November 6, 2000, the City requested an administrative hearing, and the matter was referred to the State Office of Administrative Hearings (SOAH), where it was assigned SOAH Docket No. 453-01-1077.M2. The Commission issued the Notice of Hearing on November 28, 2000
  12. On December 13, 2000, Neurobehavioral Resources requested an administrative hearing, and the matter was referred to SOAH, where it was assigned SOAH Docket No. 453-01-1439.M5. The Commission issued a Notice of Hearing on January 9, 2001.
  13. On March 28, 2001, Beacon Health, Ltd. requested an administrative hearing, and the matter was referred to SOAH, where it was assigned SOAH Docket No. 453-01-2681.M4. The Commission issued the Notice of Hearing on April 19, 2001.
  14. On April 27, 2001, NHS filed a motion to consolidate the three related SOAH cases.
  15. On June 21, 2001, the Administrative Law Judge (ALJ) issued an Order granting the motion to consolidate.
  16. On September 17, 2001, the parties filed a Joint Motion for Summary Disposition to determine all issues in this case based on briefing of a single issue.
  17. On September 26, 2001, the ALJ canceled the hearing on the merits and issued an Order Establishing Briefing Schedule on the parties’ Joint Motion for Summary Disposition.

VIII. CONCLUSIONS OF LAW

  1. I The Texas Workers' Compensation Commission has jurisdiction to consider the issue presented pursuant to the Texas Workers' Compensation Act, Tex. Labor Code Ann.§413.031.
  2. II 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 Ann.§§402.073 and 413.031(d) and Tex. Gov't Code Ann. Ch. 2003.
  3. III The parties filed timely notices of appeal, as contemplated in 28 Tex. Admin. Code (TAC) §148.3.
  4. IV Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov't Code Ann. § 2001.051 and 28 TAC §148.4(b).
  5. NHS notified the City of the recommended treatment of or service for the compensable injury and requested preauthorization prior to the date of the proposed treatment or service, in a manner consistent with 28 TAC § 134.600(d).
  6. The City’s denial of preauthorization was consistent with 28 TAC § 134.600(e) and (f).
  7. No evidentiary hearing was required under 1 TAC § 155.57, because the parties submitted stipulated facts.
  8. Pursuant to Tex. Labor Code Ann. § 413.014(b), an insurance carrier is not liable for those specified treatments and services unless preauthorization is sought by a claimant or health care provider and either obtained from the insurance carrier or ordered by the commission.
  9. Tex. Labor Code Ann.§ 413.014, directs the Commission to specify which health care treatments and services require express preauthorization by the insurance carrier.
  10. Commission rule 28 TAC § 134.600(h)(2) requires, except in the case of a medical emergency, that certain treatments that must be preauthorized.
  11. "Preauthorized" means that the service or treatment must be authorized before it is provided to the recipient.
  12. Preauthorization may be obtained from the carrier, or if denied, may be ordered by the Commission, pursuant to 28 TAC § 134.600.

13 NHS was required to obtain preauthorization for the services rendered to Claimant before providing those treatments.

  1. Because NHS provided the services to Claimant without having obtained either preauthorization from the City or a Commission order of preauthorization, the City is not liable to pay for the disputed services, and the appeal must be denied.

ORDER

IT IS, THEREFORE, ORDERED that the City of Houston is not liable for the costs relating to treatments and services provided prior to the date of the Commission’s order of September 12, 2001, granting preauthorization.

Signed this 15thday of March, 2002.

.

KATHERINE L. SMITH
Administrative Law Judge
State Office of Administrative Hearing

  1. Neurobehavioral Resources, Ltd. and Beacon Health, Ltd. are both wholly-owned subsidiaries of the Neurobehavorial Healthcare Systems, Ltd.
  2. NHS Reply Brief at 2, quoting October 23, 2000, MRD Order at page 8 in M2-01-0106-01, which became 453-01-1077.M2.
  3. See Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132,133 (Tex. 1994); see State v. Terrell, 588 S.W.2d 784,786 (Tex. 1979). (The entire statute is to be considered, not simply the disputed portions.)
  4. Consolidated SOAH Docket Nos. 453-96-0091.M1, 453-96-0124.M1, 453-96-0248.M2, 453-96-0275.M4 at 8 (ALJ Corbitt, June 12, 1996); SOAH Docket No. 453-96-0680.M2 at 5 (ALJ Ramos, August 12, 1996.)
  5. Public Util. Comm’n of Texas v. City Public Service Bd. of San Antonio, 53 S.W. 3rd 310 (Tex. 2001); Tarrant Appraisal District v. Moore, 845 S.W.2d 820 (Tex. 1993).
  6. See e.g. SOAH Docket No. 453-99-1354.M4 at 3 (ALJ Zukauckas, April 2000); SOAH Docket No. 453-99-0160.M2 at 4-5 (ALJ Pacey, July 1999); SOAH Docket No. 453-96-0456.M4 at 4 (ALJ Cunningham, October 1996).
  7. See SOAH Docket No. 453-95-0435.M2 at 8 (ALJ Elkins, August 6, 1996) (motion to dismiss for lack of jurisdiction granted; request for preauthorization is moot because the service requested was already provided).
  8. See Id.; SOAH Docket No. 453-96-0085.M1 at 8 (ALJ Norman, July 1, 1996) (request for preauthorization is moot because the service requested was already provided).
  9. SOAH Docket No. 453-97-1527.M2 at 4 (ALJ Landeros, December 1, 1997).
  10. SOAH Docket No. 453-96-2107.M4 at 3 (ALJ Zukauckas, November 1, 1999).
  11. 453-96-0608.M2 at 4.
  12. SOAH Docket No. 453-00-1177.M2 (ALJ Rusch, July 11, 2000).
  13. Id. at 5-6.
  14. See SOAH Docket No. 453-98-1562.M2 at 3 (ALJ Card, Jan. 12, 1999) (Dr. H entitled to provide treatments because Commission issued an order approving same); SOAH Docket No. 453-97-1599.M2 at 2 (ALJ Landeros, May 20, 1998) (the language of section 413.014 requires that preauthorization must be (i) sought and obtained or (ii) sought and ordered).
  15. The MRD initially issued an order preauthorizing the services on September 12, 2000. This decision and order was withdrawn on October 9, 2000, due to a procedural error, and an Amended Findings and Decision was issued on October 23, 2000, with an order again preauthorizing the services.
  16. 453-97-1599.M2 at 2;Consolidated 453-96-0091.M1, 453-96-0124.M1, 453-96-0248.M2, 453-96-0275.M4 at 8; see also 453-96-0680.M2 at 4.
  17. 453-99-0160.M2 at 5; 453-96-0680.M2 at 5; Consolidated 453-96-0091.M1, 453-96-0124.M1, 453-96-0248.M2, 453-96-0275.M4 at 8.
  18. Docket No. 453-96-0680.M2 at 4 quoting the comments pertaining to the adoption of 28 TAC § 134.600 published in 16 Tex. Reg. 7099 (1991).
  19. 453-96-2107.M4 at 3.
  20. SOAH Docket No. 453-96-1633.M2 at 5 (ALJ Marquardt, December 13, 1996).
  21. SOAH Docket No. 453-98-2348.M4 at 6-7 (ALJ Burns, April 26, 1999); SOAH Docket No. 453-99-0351.M2 at 7-8 (ALJ Burns, June 1, 1999).
  22. 453-95-0435.M2 at 8.
  23. Continental Cas. Ins. Co. v. Functional Restoration Assoc., 19 S.W.2d 393, 396 (Tex. 2000).
  24. Id. at 396, fn. 1.
  25. See SOH Docket No. 453-96-0028.M2 (ALJ Zukauckas, April 29, 1996) (fourteen-day delay did not render surgery a non-emergency); SOAH Docket No. 453-99-1436.M5 (ALJ Rusch, Dec. 8, 2000) (seven-day delay did not render surgery a non-emergency, and spinal surgery need not occur Aimmediately to support an assertion that an emergency existed; SOAH Docket No. 453-01-2854.M4 (ALJ Sanford, Jan. 11, 2002) (the timing of emergency treatment is dictated by the judgment of the attending physician).
End of Document
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