DECISION AND ORDER

TASB Risk Management Fund (TASB) appealed a Texas Workers’ Compensation Commission (Commission) Medical Review Division (MRD) decision which ordered it to pay additional money to Waco Ortho Rehab (Waco) for physical medicine sessions that were up to an hour longer than the standard sessions which lasted two hours or less. TASB contended the extra hour was neither medically necessary nor properly documented in accordance with the “documentation of procedure” (DOP) requirements of the Commission adopted Medical Fee Guideline. This decision concludes that the services were not medically necessary and the claim should be denied.

I.JURISDICTION AND HEARING

Waco requested a medical dispute resolution of this matter on June 8, 1999. MRD rendered its decision on January 19, 2000. TASB appealed, but Waco did not appeal portions of the decision that were adverse to it in other matters. There was no challenge to notice or jurisdiction and those matters are stated in the findings of fact and conclusions of law without further discussion here.

The hearing was held on September 13, 2001, before James W. Norman, Administrative Law Judge (ALJ), at the State Office of Administrative Hearings (SOAH) hearing facility, Suite 1100, Stephen F. Austin Building, Austin, Texas. Margaret Susan Goggan, Attorney for APA Litigation, Hearings Division, represented MRD. TASB appeared and was represented by its counsel, James M. Loughlin. Waco was represented by David N. Bailey, D.C., F.A.C.O. The record remained open for the parties to file written arguments. All the parties did so and the record finally closed on September 26, 2001.

II. DISCUSSION

A. Background

Factual

On ______, while working as an ____ for the Waco Independent School District in Waco, Texas, ______ (the patient) injured her neck, when she lifted a 30 to 50 pound handicapped child. On January 21, 1998, she saw her initial treating doctor, Reginald Schneider, M. D., who prescribed anti-inflammatory and pain medications. She was referred to a neurosurgeon, Dr. Marcial Lewin, on March 8, 1998, who performed emergency surgery on her cervical spine.

The patient had approximately four weeks of active and passive therapy after the injury before presenting to Waco and Craig Cernosek, D.C., on June 10, 1998-she received Commission approval to change her treating doctor. Dr. Cernosek treated her condition until March 1999.

Overall, TASB paid $12,374 of the $15,270 amount Waco billed, but paid only $3,325.50 of the $5,831 billed for several disputed services. In its January 19, 2001, decision, MRD ordered TASB to pay an additional $1,630 for portions of physical therapy sessions that exceeded two hours. As a rationale for its decision, MRD stated the medical documentation was sufficient DOP for a one hour extension of physical medicine and that DOP refers only to documentation and not the medical necessity of an extension beyond the two hour limit.

1. Legal
2. Entitlement to Health Care

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: cures or relieves the effects naturally resulting from the injury; promotes recovery; or enhances the ability to return to or retain employment. TEX. LABOR CODE ANN. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” TEX. LABOR CODE ANN. § 401.011(19).

Medical Fee Guideline

The Commission-adopted Medical Fee Guideline, at 28 TEX. ADMIN. CODE § 134.201, includes the following:

GENERAL INSTRUCTIONS

. . .

III.Documentation of Procedure

A.Documentation of procedure (DOP) in the maximum allowable reimbursement (MAR) column indicates that the value of this service shall be determined by written documentation attached to or included in the bill. DOP is used when the services provided are not specifically listed or are unusual or too variable to have an assigned MAR. The required documentation may vary based on the complexity of the procedure. DOP shall include pertinent information about the procedure including:

1. Exact description of procedure or service provided;
2. Nature, extent, and need (diagnosis and rationale) for the service or procedure;
3. Time required to perform the service or procedure;

. . .

1. Additional information regarding DOP:
2. Detailed clinical records are not usually necessary for DOP.

. . . .

MEDICINE GROUND RULES

In addition to the General Instructions, several other instructions pertaining specifically to the Medicine Section are contained in the Medicine Ground Rules and Notes below. This information shall be utilized for correct reporting and billing of the procedure codes.

1. Physical Medicine
2. The following criteria shall be met for physical medicine treatment to qualify for reimbursement:

. . .

The treatment shall be specific to the injury and provide for the potential improvement of the patient’s condition.

. . .

Additional Ground Rules:

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

. . . .

Emphasis in original.

1. Whether Treatments Were Medically Necessary/ Documented as Medically Necessary
2. TASB

TASB cited the Commission’s rules as requiring DOP for more than two hours for a physical medicine session. It contended that the reason for requiring DOP is to permit an evaluation of the additional proposed treatment. It maintained the extra documentation requirement is warranted in view of the $35 to $43 per minute reimbursement rates for the CPT codes billed.

TASB contended the extra hours of physical medicine were not medically necessary and the documentation was inadequate because there was no stated rationale for the extra treatment. It argued MRD erroneously concluded that DOP does not require a medical necessity justification for extending treatments beyond the standard two hours. It contended MRD’s post-hearing written argument acknowledged that medical necessity must be documented.^[1]

TASB cited testimony from its expert, Kevin Kanz, D.C.,^[2] that more than two hours per day of cervical spine treatment is too much, especially for a post-operative surgical condition. He is not aware of any course of exercise for a post-surgical neck injury that would warrant more than two hours. He maintained there should have been supporting documentation from the surgeon for that treatment, but there was not. He acknowledged that a chiropractor is qualified to prescribe post-surgical treatment.

According to Dr. Kanz, Dr. Cernosek did not document the rationale for the extra treatment. He cited inconsistencies in the daily treatment notes between the patient’s subjective symptoms and the treatment provided-Dr. Cernosek focused his tests, assessment, and treatment on the cervical spine only rather than the mid, lower, and upper back and shoulder, where the patient was also experiencing pain.^[3] He indicated that some treatments were clearly to the cervical spine, but the record is not clear where other treatments were directed. He asserted if the treatment was solely to the cervical spine, it was too much. If other body parts were treated, the daily treatment notes did not show they were being treated.

TASB responded to MRD’s closing argument as follows:

• In support of its contention that the documentation was adequate, MRD cited office notes that said “the patient needs extra time with the doctor this visit.” TASB pointed out the statement apparently appears on only two out of the twenty-one dates of service and does not say why the treatment was needed.
• In support of its assertion that the treatment was necessary, MRD said the patient had special needs because of her surgery. TASB argued that the documentation does not identify any special needs resulting from the surgery or say the patient needed an extra hour of physical therapy because of the surgery. It contended it could just as easily be argued that intense therapy would be contra-indicated for recent cervical surgery.
• TASB maintained MRD’s “special needs” argument demonstrates TASB’s point-it should not be necessary to assume or speculate on the need for physical therapy. The purpose of the DOP requirement for extending the treatment beyond two hours is to have a statement of need that can be evaluated.
• MRD contended that because Dr. Kanz has not evaluated the patient, he is not in the best position to determine the need for additional physical therapy. TASB pointed out that Waco’s representative at the hearing, Dr. Bailey, has never examined, diagnosed, treated, or met the patient.

TASB also responded to Waco’s closing argument. Waco cited a letter it sent to TASB, which said the patient needed additional time for the doctor to work on her endurance. TASB contended this is an after-the-fact statement that appears only under some of the dates of service in Waco’s letter. For other dates of service, Waco simply quotes the Commission rule on extending the two-hour limit. TASB pointed out the letter is vague and unspecific and argued it was produced by a billing clerk rather than a licensed health care provider. It also does not state how the patient’s endurance was lacking in relation to the neck injury, why a two-hour session was insufficient to meet the patient’s needs, or identify the nature of the work being done in the additional hour.

Waco

Dr. Bailey cross-examined Dr. Kanz and submitted post-hearing briefs, but did not testify. He cited Medical Fee Guideline provisions, which state that required documentation may vary based on the complexity of the procedure and detailed clinical notes are usually unnecessary for DOP. He pointed to a February 24, 1999, letter from Waco’s Dispute Department to TASB stating “The patient needed extra time, as the doctor wanted to work on the patient’s endurance. Please show why this is not the case, otherwise send additional payment.”^[4] He contended Dr. Kanz ignored these statements. He argued that the letter, the detailed clinical record of “SOAP”^[5] notes, and the medical narrative reports met the DOP requirements in the Medical Fee Guidelines.

Dr. Bailey stated the only record of the TASB denial is “Reduction According to Fee Guidelines.”^[6] He contended TASB never made any other request for additional information or made any other objections before the case went to medical dispute resolution. The only time it stated a rationale was in response to Waco’s medical dispute resolution request.^[7]

Dr. Bailey argued, because all physical medicine services provided after August 31, 1998, were preauthorized,^[8] they are presumed to be medically necessary. He contended if the later services were medically necessary, the earlier ones must be also.

Dr. Bailey maintained Dr. Kanz’s assertions concerning a lack of medical necessity were shown to be irrelevant, contradicted, retracted during cross examination, or based on inadequate information or knowledge. Dr. Kanz admitted the patient’s strength improved and that she returned to work. Dr. Bailey cited the record as proof that her physical capacity increased from 17 percent to 144 percent,^[9] and her cervical spine strength improved from 65 percent to 218 percent.^[10]

MRD

MRD contended a review of the documentation as a whole, including office notes and extended treating physician reports,^[11] supports the need of the additional hour of treatment. It asserted the following:

• Office notes stated the patient needed extra time with the doctor on a particular visit.
• The patient had special needs because of her cervical surgery.
• The patient was given a 14 percent impairment rating on her maximum medical improvement evaluation. This supports an additional hour of physical therapy.
• Because Dr. Kanz has not examined the patient, he is not in the best position to determine whether the additional therapy was not medically necessary.
• Analysis

The ALJ concludes as follows:

• On the basis of the evidence presented, the extra hours of treatment were not medically necessary.^[12] There was virtually no expert evidence in the record directly on point except from Dr. Kanz. He testified that more than two hours a day for cervical spine treatment is too much, especially for a post-operative condition. He is not aware of any course of treatment for a post-surgical neck injury that would require more than two hours.^[13]
• Waco’s argument that TASB’s pre-authorization of the treatments showed they were medically necessary was not persuasive in view of the expert evidence discussed above. The expert testimony was also more convincing than MRD’s argument that the patient’s impairment rating showed a need for the extra hour of treatment.
• Waco’s argument that the patient’s strength increases showed the need for the treatments was similarly unpersuasive. The patient’s improvement was evidence that physical therapy was necessary, but it did not prove the need for an additional hour of physical therapy.
• Waco’s complaint about TASB’s notation “Reduction According to Fee Guidelines” was not convincing. That notation is certainly cryptic, but appears to be adequate under the version of 28 TEX. ADMIN. CODE §133.304 in effect at the time TASB denied payment.
• MRD’s argument that the patient had extra needs because of her surgery and her impairment rating was not convincing because it was essentially speculative rather than being based on any expressed statement of need in the record.
• Dr. Kanz’s opinion should not be discounted just because he had not seen the patient. There was little expert evidence in the record other than his testimony and his reasoning at pages 373-375.

III. FINDINGS OF FACT

1. ___________ (the patient) suffered a compensable injury to her neck on_____________, while working as an _____ for the Waco Independent School District in Waco, Texas, when she lifted a 30 to 50 pound handicapped child.
2. The patient was treated for several weeks by her initial treating doctor, after which she was referred to a neurosurgeon who operated on her cervical spine. On June 10, 1998, after about four weeks of post-injury active and passive therapy, she presented to Waco Ortho Rehab (Waco); her treating physician was Craig Cernosek, D.C.
3. Between July 13, 1998, and December 21, 1998, the patient received numerous physical therapy sessions which exceeded two hours per day.
4. The Texas Association of School Boards (TASB) denied payment for portions of the physical therapy sessions that exceeded two hours per day. TASB’s denial of those payments is the sole disputed issue in this appeal.
5. More than two hours per day of physical therapy for the patient’s post-operative neck injury was too much.
6. More than two hours per day of physical therapy for the patient’s post-operative neck injury did not provide for the potential improvement of the patient’s neck injury.
7. The patient was not likely to benefit from more than two hours per day of post-operative physical therapy for her neck injury.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing, including the authority to issue a decision and order, pursuant to TEX. LABOR CODE ANN. § 413.031(d) and TEX. GOV’T CODE ANN. ch. 2003.
2. The treatments at issue were not reasonably required by the patient’s post-operative neck injury. TEX. LABOR CODE ANN. § 408.021.
3. Waco’s claim should be denied. TEX. LABOR CODE ANN. § 408.021.

ORDER

IT IS, THEREFORE, ORDERED that the Waco Ortho Rehab claim for payment of physical medicine sessions to ________from July through December 1998 that exceeded two hours per session be, and the same is hereby, denied.

Issued this 29^th day of October, 2001.

James W. Norman
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. MRD’s brief states, “However, the MRD erroneously stated that ADOP refers only to documentation and not medical necessity . . . .” at 3 – 4.↑
2. Dr. Kanz graduated from Parker Chiropractic College in 1988 and has been in private practice in Austin, Texas, for the last 13 years.↑
3. He acknowledged that Dr. Cernosek examined and evaluated the patient’s low back on December 7, 1998 (Ex. 1 at 56).↑
4. Ex. 1 at 10-14.↑
5. SOAP stands for subjective complaints, objective findings, assessment of condition, and plan of treatment.↑
6. Ex. 1 at 276.↑
7. Ex. 1 at 370 et seq. ↑
8. Ex. 1 at 5-8.↑
9. Ex. 1 at 262.↑
10. Ex. 1 at 266.↑
11. Ex. 1 at 39-60, 72, 89-96, 190-196, 199-205, and 249-257.↑
12. Although not stated in the language of TEX. LABOR CODE ANN. § 408.021 (all health care reasonably required by the nature of the injury), the requirement in Part I.A.2. of the Medicine Ground Rules that treatment must provide for potential improvement of the patient’s condition is essentially a medical necessity requirement. Moreover, the requirements at Part II.D.1.a. and E.1.a. for work conditioning and work hardening respectively state that persons must be “likely to benefit from the program” as a pre-condition for entering those programs.↑
13. Because of this conclusion that there was a lack of medical necessity, it is not necessary to decide the DOP issue per se. ↑