DECISION AND ORDER
This consolidated proceeding involves an appeal by Daniel A. Boudreau. D.O. (Petitioner) from the Findings and Decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (Commission). The MRD Decision upheld Texas Workers Compensation Insurance Fund’s (Carrier) denial of payment for Vertical Axial Decompression (VAX-D) treatments provided by Petitioner. Carrier denied payment based on claims that VAX-D is physical therapy requiring preauthorization; the treatments were not preauthorized; and VAX-D is a form of traction and should be paid according to CPT Code 90712, not 97799. This decision concludes that Petitioner is not entitled to additional reimbursement.
I. JURISDICTION AND NOTICE
There were no contested issues of jurisdiction or notice. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.
II. PROCEDURAL HISTORY
A motion to consolidate the captioned cases was made by the Petitioner on May 7, 2001, and was granted May 29, 2001. A hearing on the consolidated cases was convened and completed January 24, 2002, in Austin, Texas. Petitioner was represented by its attorney, Peter N. Rogers; Carrier was represented by its attorney Patricia Eads; and the Commission did not appear. Administrative Law Judge (ALJ) Stephen J. Pacey presided. A series of closing briefs were filed, and the record closed March 23, 2002.
In both of these cases, the claimant sustained a work-related injury. The compensability of those injuries is not in dispute. The issue is whether Carrier properly characterized the VAX-D process as traction and therefore physical therapy. Carrier paid $20 for 40 VAX-D sessions and denied payment on five of the sessions on the basis of lack of preauthorization. Specific information on the individual claimants and dockets is discussed below.
Under CPT Code 97799, Petitioner billed Carrier at $200 per application for 17 VAX-D applications given to Claimant, M.R., in March 1999. The reimbursement for this CPT code depends on the procedure performed because this physical medicine CPT code does not have a maximum allowable reimbursement. Carrier paid $20 per application, categorizing the VAX-D as a traction treatment under CPT Code 90712. The maximum allowable reimbursement under CPT code 90712 is $20. The MRD issued its Findings and Decision on November 13, 2000, denying additional reimbursement. The Petitioner requested a hearing on January 5, 2001, and the Commission issued its Notice of Hearing on January 9, 2001.
Under CPT Code 97799, Petitioner billed Carrier at $235 per application for 18 VAX-D applications administered to Claimant, B.F., in August and September 1999. Carrier categorized the VAX-D as a traction treatment under CPT code 90712 and as in Docket No. 453-01-1433, it paid $20 per application for 13 applications. It denied reimbursement for five of the applications because Petitioner failed to obtain preauthorization. The MRD issued its Findings and Decision on November 13, 2000, denying additional reimbursement.
The Petitioner requested a hearing on January 5, 2001, and the Commission issued its Notice of Hearing on January 15, 2001.
A.Petitioner’s Position and Evidence.
Petitioner’s argument is that VAX-D is not traction; it is physical medicine and a fair and reasonable rate is $200 to $235 per session. Petitioner bases his argument on the following factors:
- The VAX-D decompresses the vertebrae and traction does not.
- The cost of the VAX-D machine is $125,000.
- Two SOAH decisions have held that VAX-D is physical medicine, $200 is a reasonable rate, and since it is not physical therapy, preauthorization is not required.
- VAX-D is not traction because it decompresses vertebrae and traction does not.
Petitioner describes VAX-D as:
VAX-D stands for vertebral axial decompression. VAX-D patients are placed in a prone position on a table with handgrips positioned on the table above the head. With arms extended above his or her head, the patient grasps the handles to stabilize and restrain the upper body during the procedure. The pelvis is secured to the table by means of a harness. The table itself consists of an upper table section (the part with the handgrips) and a lower table (the part with the pelvis harness). Pneumatic cylinders are used as a drive mechanism to separate the two table sections and to apply tension to the patient’s pelvis. Hydraulic dampers are used to return the table to the original position. This pneumatic-hydraulic drive mechanism provides for precise control of the amount of tension that is applied and allows tension to be applied in a logarithmic time/force curve. This means that as the tension is increased, the force of the pull is reduced. The pneumatic drive mechanism is applied in both the distraction and retraction movements of the table and provides for a smooth, controlled treatment and a gradual return to the starting point of each cycle. The idea of reducing the degree of the pull in a logarithmic curve is based on Fectner’s Law of Biological Response. This logarithmic pull and release is controlled by the VAX-D monitor, a computer that governs the pneumatic-hydraulic movement of the table.
Petitioner argued that studies have been printed in scientific journals that indicate that VAX-D is an effective aid in decompressing vertebrae:
A. Effects of Vertebral Axial Decompression on Intradical Pressure, Gustavo Ramos, M.D., and William Martin, M.D., Journal of Neurosurgery .
In this study, tension applied by the VAX-D table and console was observed to significantly decompress the nucleus pulposis in a patient’s L4-5 disc space. Intradiscal pressure was measured by inserting a cannula into the patient’s L4-5 disc space and connecting the cannula to a pressure transducer.
B. Vertebral Axial Decompression Theory for Pain Associated With Herniated or Degenerated Discs or Facet Syndrome: An Outcome Study, Gose, E., Naguszenski, W., Naguszenski. R., Journal of Neurological Research Vol 20, No. 3, April 1997.
In this study, patients from twenty-two VAX-D medical centers were studied.
Of the total of 778 patients of the study, the treatment was considered successful at a
rate of 71%.
C. Recent Studies Referred to by Charles Robert Crane, M.D.
Charles Robert Crane, M.D. and Petitioner testified that additional studies concluded that VAX-D is an effective treatment for certain back problems and that VAX-D is not traction.
Petitioner indicated that these studies prove the VAX-D process is physical medicine, not traction. Petitioner argued that CPT Code 97799 is appropriate because it is physical medicine code. Petitioner further pointed out that preauthorization is not required for physical medicine.
The VAX-D machine costs approximately $125,000.
Petitioner also asserted that the VAX-D should not be considered traction because the equipment costs between $100,000 and $125,000 and rents for about $2,000 per month. He noted that an ordinary traction machine costs approximately $3,000. The difference in price indicated that the VAX-D is not a subset of traction.
Petitioner indicated that the $200 and $235 per session are fair and reasonable rates because of the cost of the machine and that unlike traction, an attendant’s presence is required during a VAX-D session. In addition to an attendant, a doctor is also present in the facility.
Past SOAH opinions have held that the VAX-D is physical medicine and that $200 per session is a fair and reasonable rate.
The certified record included a 1999 SOAH decision which held that preauthorization is not necessary for the VAX-D because it constituted physical medicine. In a rebuttal brief, Petitioner tendered a recent decision which held that preauthorization was not necessary for the VAX-D because it was physical medicine, not physical therapy, and that $200 was a fair and reasonable rate of reimbursement. Petitioner argued that these decisions clearly indicate that SOAH recognizes VAX-D as physical medicine and that $200 is a fair and reasonable fee per session.
B. Carrier’s Position and Evidence.
Carrier’s position is that VAX-D is a computerized mechanical traction device with an American Medical Association (AMA) assigned CPT code of 97012. Carrier argued that mechanical traction is considered physical therapy, and it paid the maximum physical therapy reimbursement of $20 per session, which is a fair and reasonable reimbursement. Carrier indicated that it did not pay for sessions in excess of eight weeks because Commission Rule 134.600(h)(10) requires a provider obtain preauthorization for physical therapy services beyond that time. Rick Ball, Carrier’s representative, testified that in Docket No. 453-01-1433.M4, the last five sessions occurred beyond eight weeks and thus required preauthorization that was not sought.
In addition to Carrier’s argument that VAX-D is mechanical traction, it makes the following arguments:
- The conclusion in SOAH Docket No. 453-99-0643 that VAX-D is physical medicine and, therefore, does not require preauthorization was based on an incorrect representation that the AMA had assigned a new physical medicine CPT code for the VAX-D.
- Petitioner has requested preauthorization for VAX-D sessions in the past, and, therefore, he knew that the VAX-D was physical therapy and required preauthorization beyond eight weeks.
- The FDA has not classified VAXBD as having proven effectiveness.
- The AMA recommends a traction CPT code of 97012 for VAX-D because it is a computerized/motorized traction device.
- Medicare does not cover VAX-D.
- The FDA lists the VAX-D’s classified name as “Equipment, Traction, Powered.”
- On form 510(k), Summary of Safety and Effectiveness, VAT-TECH Inc., VAX-D’s manufacturer, listed VAX-D’s common name as Traction Equipment Powered and its classification name as Equipment, Traction Powered
Petitioner claimed that SOAH Docket No. 453-99-0063.M2 decided that VAX-D was physical medicine, and therefore, does not require preauthorization. Carrier the claim as disingenuous. It argued that because Petitioner misrepresented to the SOAH judge that the AMA had assigned VAX-D a physical medicine CPT code, the decision concluded Vax-D did not require preauthorization. Carrier stated that the AMA has never created a separate Vax-D CPT code. Carrier pointed out that in SOAH Docket No. 453-98-2243.M2, Petitioner had requested preauthorization for Vax-D. Petitioner’s own actions established that he understood Vax-D was a form of physical therapy requiring preauthorization under TWCC rule 134.600(h)(10).
The AMA recommends a traction CPT code of 97012 for the VAX-D.
Carrier presented James Laughlin, a lawyer handling worker’s compensation, who testified that he contacted the AMA to inquire as to what CPT code was appropriate for Vax-D. Mr. Laughlin received a letter from Andrea Cooper-Finkle, Division Counsel in the corporate law division of the AMA, who said the proper code is 97012. Contrary to Petitioner’s claim, she also said there was no CPT code 97532. Ms. Cooper-Finkle referred Mr. Laughlin to page 11 of the May 5, 1999 issue of CPT Assistant where it stated that Code 97012 should be reported for traction treatment using computerized/motorized types of traction devices
Medicare does not cover VAX-D.
Carrier pointed out that VAX-D is not an approved Medicare treatment. The Medicare Manual states:
VERTEBRAL AXIAL DECOMPRESSION (VAX-D) - NOT COVERED Vertebral decompression is performed for symptomatic relief of pain associated with lumbar disk problems. The treatment combines pelvic and/or cervical traction connected to a special table that permits the traction application. There is insufficient scientific data to support the benefits of this technique. Therefore, VAX-D is not covered by Medicare.
Carrier summarized that all recognized organizations categorize VAX-D as a type of traction, and that it was correct to assume the sessions were a form of physical therapy correctly billed under CPT code 97012.
Petitioner has the burden of proof in this proceeding. 28 Tex. Admin. Code (TAC) §§148.21(h) and (i). Petitioner’s proof partially consists of scientific studies of VAX-D benefits. These studies portray the process as an alternative to surgery in the decompression of vertebrae; however, it must be noted that neither Claimant in either docket showed any or very little improvement. Even though not documented, Dr. Crane and Petitioner did testify that the machine costs $125,000 and must be accompanied by one attendant. Petitioner indicated that his charge of $200 to $235 is reasonable considering the costs of the machine and the process. Indeed VAX-D may be to traction what an MRI is to an X-Ray machine, but until such time as it is recognized as such, the ALJ concurs with the medical community that views VAX-D as traction. Information from the AMA, the VAX-D manufacturer (VAT-TECH, Inc), and the FDA all indicate that the VAX-D treatment is traction.
Of particular interest in this case was that the two previous SOAH decisions upon which Petitioner relies, appeared to be based on incorrect facts supplied by this Petitioner, Dr. Boudreau. The conclusions reached in the previous case were based on the incorrect fact that the AMA had approved a separate physical medicine CPT code for the VAX-D.
Contrary to the facts represented in SOAH Docket No. 453-99-0063.M2, neither the AMA nor the Commission assigned a physical medicine CPT code for the VAX-D. In addition, credible evidence indicates the AMA treats the VAX-D as a type of traction, not physical medicine. It also notes that the proper CPT code for VAX-D is 90712.
Petitioner’s evidence consists of certain studies indicating that VAX-D is effective in decompressing vertebrae and reflecting the high cost of the machine. However, this evidence is insufficient to prove by preponderance that the VAX-D is physical medicine, and not traction. If, or until such time that VAX-D is treated as physical medicine by medical organizations such as the AMA, the FDA, and Medicare, the process should be treated as a form of traction, a physical therapy process billable under CPT code 97012.
In Docket No. 453-01-1433, reimbursement for five VAX-D applications is denied because Petitioner failed to obtain preauthorization for physical therapy sessions in excess of eight. Further reimbursement for both dockets is denied because the $20 paid for each treatment represents a fair and reasonable payment in accordance with Commission’s rules.
V. FINDINGS OF FACT
- Claimants, ____ and _____., suffered back injuries that were found compensable under the Texas Workers’ Compensation Act.
- At the time Claimants sustained their compensable injuries, Texas Workers Compensation Insurance Fund (Carrier) was the workers’ compensation insurer for Claimants’ employers.
- In 1999, Claimants were referred to Daniel A. Boudreau, D.O. (Petitioner), for treatment for ongoing back pain.
- Petitioner determined that Claimant ____. was a suitable candidate for VAX-D treatments and provided 17 VAX-D sessions during March 1999.
- For the 17 VAX-D sessions, Petitioner billed Carrier $200 per session under physical medicine CPT code 97799.
- Petitioner determined that Claimant ______ was a suitable candidate for VAX-D treatments and provided 18 VAX-D sessions during August and September 1999.
- For the 18 sessions, Petitioner billed Carrier $235 per session under physical medicine CPT code 97799.
- Carrier paid Claimant ____. $20 a session for the 17 VAX-D sessions, describing the treatments as traction under physical therapy CPT code 97012.
- Carrier paid Petitioner. $20 a session for 13 VAX-Dsessions, describing the treatments as traction under physical therapy CPT code 97012. Carrier denied payment on the remaining five sessions on the basis of lack of preauthorization.
- The Commission’s Medical Fee Guidelines do not list a CPT code for VAX-D.
- Commission Rule 134.600 (h)(10) requires preauthorization for physical therapy or occupational therapy beyond eight weeks of treatment.
- Claimant ___ had received at least eight weeks of VAX-D treatment prior to the last five treatments.
- The VAX-D treatments provided little or no improvement to either Claimant.
- VAX-D is considered a computerized traction device by the American Medical Association (AMA), and the AMA designated CPT code 97012 as the proper code for the VAX-D.
- The Food and Drug Administration (FDA) describes the Vax-D as a computerized traction device.
- VAX-Tech Inc, VAX-D’s manufacturer, listed VAX-D’s common name as Traction Equipment Powered and its classification name as Equipment, Traction, powered.
- VAX-D is not covered by Medicare.
- Incorrect facts, represented to the ALJ, were the basis of any prior SOAH decisions holding that VAX-D treatments were physical medicine.
- By order dated November 13, 2000, the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) denied payment to Petitioner for five VAX-D treatments on the basis of lack of preauthorization, and denied further reimbursement for thirteen treatments provided by Petitioner to _____.
- By order dated November 10, 2000, the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) denied further reimbursement to Petitioner for 17 VAX-D treatments provided by Petitioner to Claimant ____.
- Petitioner timely requested a hearing appealing the MRD decision.
VI. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act. TEX. LAB. CODE ANN. §413.031.
- 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 (d) and TEX. GOV’T CODE ANN. ch. 2003.
- Petitioner timely requested a hearing in this matter pursuant to 28 TEX. ADMIN. CODE (TAC) §§102.7 and 148.3.
- Petitioner had the burden of proof in this matter pursuant to 28 TAC §148.21 (h) and (i).
- Carrier properly classified VAX-D as traction under CPT code 97012, and properly paid both Claimants $20 per session, which is the maximum amount reimbursable under this CPT code.
- Petitioner was required to seek preauthorization for five VAX-D treatments provided by Petitioner to Claimant _______.
- A fair and reasonable reimbursement for a single VAX-D session is $20.
IT IS, THEREFORE, ORDERED that the appeal of the Daniel A. Boudreau, D.O. requesting additional reimbursement for the services provided in Docket Nos.453-01-1433.M4 and 453-01-1436 is DENIED.
Signed this 21st day of May, 2002.
STEPHEN J. PACEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- CPT is Current Procedural Terminology, which is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians. These codes are published by the American Medical Association (AMA).↑
- The dispute also involved hot and cold packs for which Petitioner billed $15 and Carrier reimbursed $11. This was not argued and will not be further discussed.↑
- Traction is considered physical therapy, and pursuant to 28 Tex. Admin. Code (TAC) §134.600(h)(10) preauthorization is required for physical therapy sessions in excess of eight.↑
- Petitioner also cited a Minnesota Court of appeals case for the proposition that VAX-D is not traction. Because the ALJ has no knowledge of the Minnesota law, the evidence in the case, or the arguments made. The decision was not persuasive.↑
- SOAH Docket No. 453-99-0063.M2↑
- SOAH Docket No. 453-02-0538.M5↑
- CPT code 97532 was referred to in Petitioner’s letter to Respondent dated May 11, 1999, where Petitioner stated that effective January 1999; CPT Code 97532 had been designated for VAX-D and appears in the 1999 edition of Relative Value for Physicians.↑
- This publication is published by the AMA to explain the use of various CPT codes.↑
- SOAH Docket No. 453-02-0538, a subsequent decision, followed Judge Landeros’ rationale, and reversed the previous decision in SOAH Docket No. 453-98-2243 which held that the VAX.-D was not physical medicine↑
- The pertinent part is as follows: “Pursuant to TEX. LAB. CODE §413.014 and the Commission rule at 28 TAC §134.600, for a carrier to be liable for certain services and supplies, it must preauthorize them. The services which must be preauthorized are listed at 28 TAC § 134.600(h). Apparently, there has been some confusion in the past as to whether VAX-D should be considered physical therapy, which must be preauthorized or physical medicine, which does not require preauthorization. In February 1999, the American Medical Association (AMA) assigned the VAX-D a physical medicine CPT code, which should be included in the official CPT book scheduled to be published in October 1999. The Commission accepts and uses the AMA CPT codes for its billings. At the hearing, no one suggested that the Commission would reject the AMA’s decision to classify VAX-D treatments as physical medicine. VAX-D treatments are now considered physical medicine for which preauthorization is not required. Although not required, nothing in the Code or Commission rules prohibits a provider from seeking preauthorization should it care to take the time and trouble to do so. Petitioner is entitled to seek preauthorization for the VAX-D treatments requested for Claimant.” (Emphasis added)↑