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At a Glance:
Title:
453-01-2175-m4
Date:
October 9, 2001
Status:
Medical Fees

453-01-2175-m4

October 9, 2001

DECISION AND ORDER

This case is a dispute over reimbursement for services provided to an injured claimant by Respondent Waco Ortho Rehab (Waco Ortho). The Medical Review Division (the MRD) of the Texas Workers' Compensation Commission (TWCC or the Commission) found the Petitioner, Texas Association of School Boards (TASB) Risk Management Fund (the Fund) should pay Waco Ortho $3,056.83 for the disputed services.

This Decision and Order concludes the Fund should pay Waco Ortho $2,102.50, plus interest, for the disputed services.

I. Jurisdiction and Notice

The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. chapter 401 et seq. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(d) l(d) and Tex. Govt Code Ann. chapter 2003.

Adequate and timely notice of the hearing was provided in accordance with Tex. Govt Code Ann. §2001.052.

II. Procedural History

The Claimant, who was an employee of the Waco Independent School District, suffered a compensable shoulder injury___________. The Fund was her employer's carrier for workers' compensation insurance. The disputed dates of service are from May 28, 1998, through March 15, 1999. After Waco Ortho was not reimbursed for some of its services, it resubmitted claims to the Fund on May 17, 1999. It filed a Request for Medical Dispute Resolution with the MRD on May 27, 1999.

The MRD issued its original Findings and Decision on September 25, 2000. It withdrew that decision and issued an amended Decision on January 24, 2001. In the amended Decision, the MRD ordered the Fund to reimburse Waco Ortho $3,056.83. Ex. 1 at 6.[1] The Fund requested a hearing before SOAH; Waco Ortho did not challenge the MRD decision.

The hearing was held September 27, 2001, at SOAH's hearings facility in Austin. David Swanson represented the Fund. Jacqueline Harrison represented TWCC. David Bailey, D.C. represented Waco Ortho. Various documents, including the certified record that was before the MRD, were admitted into evidence. Mr. Herman Wilks, the Fund's Director of Medical Benefit s Administration; Dr. Bailey; and Ms. Katherine Owens, one of Waco Ortho's office personnel, testified. The hearing was adjourned the same day.

III. Discussion

A. Burden of Proof

Under 28 Tex. Admin. Code (TAC) §148.21(h), the Petitioner has the burden of proof in hearings, such as this one, conducted pursuant to §413.031 of the Act. Thus the Fund has the burden of proving Waco Ortho is not entitled to the reimbursement ordered by the MRD.

B. Issues and ALJ's Analysis

The charges for which the MRD ordered reimbursement fall into four categories: (1) whether preauthorization should have been requested for physical therapy on certain dates ($840.00); (2) whether the two-hour time limit of the Medicine Fee Guideline was exceeded for some dates of service ($1,014.00); (3) whether bills were properly sent to the Fund for some dates of service ($1,088.00); and (4) whether Waco Ortho should be reimbursed for non-prescription medications it provided to the Claimant ($114.33).

Preauthorization

After reviewing additional information supplied by the Fund, Waco Ortho agreed that preauthorization should have been, but was not, obtained for physical therapy for the dates of service at issue. Those dates were July 14, 15, and 17, 1998. Waco Ortho withdrew its request for reimbursement for those dates.

Two-Hour Time Limit

The Fund denied reimbursement for several dates of service on the theory that Waco Ortho had exceeded the two-hour time limit for physical medicine sessions set forth in the TWCC Medicine Ground Rules, 28 TAC §134.201. Section I.A.10.a. of those rules defines a physical medicine session 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.

Physical therapy, CPT Code 97110, is defined as

Therapeutic procedure, one or more areas, each 15 minutes; therapeutic exercises to develop strength and endurance, range of motion and flexibility

Code 97110 is considered a ''timed" code because it is billed in 15-minute units. On several dates of service, Waco Ortho billed for eight units of Code 97110 and also billed for other, untimed codes that are within the definition of "physical medicine session." The most common procedures were joint mobilization (Code 97265) or myofascial release (Code 97250).

a. Parties' Arguments

The Fund interpreted Section I.A.10.a. to allow a total of two hours per physical medicine session, combining the timed and untimed procedures, and refused reimbursement for more. Waco Ortho and TWCC argued that the two-hour limit referred only to the timed procedures and that untimed procedures could be performed, and reimbursed, in conjunction with a two-hour Code 97110 session .[2]

In making its argument, the Fund relied on the language of the rule, which it claimed made no distinction between timed and untimed modalities in stating that a physical medicine session can last a maximum of two hours. Dr. Bailey agreed that the untimed modalities actually took time to perform, so that two-hours of physical therapy plus myofascial release, for example, would actually take more than two hours in "clock time."

Dr. Bailey disagreed with the Fund's interpretation of the rule, however, contending that "time" refers to billed time.

Dr. Bailey testified he had conferred with TWCC personnel many times and that they had agreed with his interpretation of the rule. He stated he had helped draft other TWCC guidelines and had acted in an advisory role regarding this particular guideline. He also argued that a series of MRD decisions supported his interpretation. The Fund argued, in contrast, that most of this MRD decision supported its interpretation.

TWCC argued the Fund had not met its burden of proof and that the MRD decision was correct.

b. ALJ's Analysis

SOAH has considered this issue in one case, Docket No. 453-99-1216.M5, Liberty Mutual Insurance Company/Arrow Clinic v. Texas Worker's Compensation Commission and Arrow Clinic/Liberty Mutual Insurance, Inc.[3] In that case the ALJ determined that the rule referred to clock time, not billed time, and that a physical medicine session could not exceed two hours as measured by a clock. That issue was not the main one in the case, however, and it is unclear how thoroughly the parties debated and presented evidence on that question. Therefore, the ALJ concludes it does not dispose of the issue in this case.

By itself, Section I.A.10.a. does appear to encompass both timed and untimed modalities within the statement that "the maximum amount of time allowed per session is two hours." In context, however, the meaning is not so clear. The preface to the Medicine Ground Rules states, "This information shall be utilized for correct reporting and billing of the procedure codes." Plausibly, "the maximum amount of time allowed" refers to the maximum amount of time allowed to be reported and billed, which is the interpretation claimed by Dr. Bailey. Dr. Bailey reported and billed for two hours per session, plus the additional untimed codes.

Including the untimed codes within the two-hour time limit creates a practical problem, moreover, because there is no mechanism for determining how much time an "untimed' procedure takes, or is supposed to take. No one argued that a provider is required to record the time spent on those modalities. In this case, the Fund had to rely on Dr. Bailey's estimates for the time spent on the untimed treatments.

Although Dr. Bailey referred to a number of MRD decisions in other cases, such decisions are not official policy pronouncements of the Commission. Therefore the ALJ has not considered those. The staff interpretations, as conveyed to Dr. Bailey and as expressed at the hearing, carry some weight, however, as does Dr. Bailey's experience.

Considering the ambiguity of Section I.A.10.a. in the context of 'the Medicine Ground Rules, the practical problems with incorporating untimed modalities into the two-hour limit, and the testimony of Dr. Bailey, the ALJ concludes the Fund has not met its burden of proving that Waco Ortho's billings violated that section. He therefore concludes the Fund should reimburse Waco Ortho $1,014.00 for those services.

Whether Bills Were Sent

a. Parties' Arguments

The Fund did not provide Explanations of Benefits (EOBs) for several dates of service. Based on the record before it, the MRD found there was adequate documentation that the services were performed and that HCFAs were provided for each dates, and ordered reimbursement.

Mr. Wilks testified that he had searched the Fund's paper and electronic records and that Waco Ortho had not sent bills for the dates in question. He believed it very unlikely that the Fund would have lost those bills. Although bills for those dates were found in Exhibit 1 behind Waco Ortho's May 17, 1999, request for reconsideration,[4] it was not clear from the Bates stamps whether those had been resubmitted with that package or only as part of Waco Ortho's May 27, 1999, Request for Medical Dispute Resolution to TWCC.[5] If they had been submitted on May 17th, Mr. Wilds stated that processing stopped when the Request for Medical Dispute Resolution was filed only ten days later.

Ms. Owens testified she had personally assembled the package submitted to the Fund for reconsideration and that it incorporated all the outstanding unpaid bills, including the ones at issue. She had not submitted the original bills.

b. ALJ's Analysis

The ALJ finds, based on the testimonies of both Mr. Wilks and Ms. Owens, that Waco Ortho did not initially submit the bills for which no EOBs were provided, but did include them in its May 17, 1999, resubmission. They were not then processed because of the large volume of bills resubmitted and the quick filing of the Request for Dispute Resolution.

By filing its Request for Dispute Resolution May 27, 1999, Waco Ortho met the requirement of 28 TAC §133.305(d)(1) that such requests be filed within one year from the disputed date(s) of service. It apparently filed that request earlier than 60 (days after the Fund first received these bills, however, in violation of §133.305(d)(2). Under that section, Waco Ortho might have waived its right to medical dispute resolution on those bills. The Fund did not raise that argument before the MRD, however, and so waived its own right to challenge Waco Ortho's request.

The Fund did not identify any other problems with those bills. Therefore the Fund should reimburse Waco Ortho for them, in the amount of $1,088.00.

Non-Prescription Medications

Waco Ortho billed the Fund $114.33, under CPT Code 99070 (other supplies and materials) for non-prescription medications it provided to the Claimant. Mr. Wilks testified the workers' compensation system is designed to mirror the health care insurance system. Neither insurance health plans nor the Fund reimburses for such items. The Fund also argued that such items do not

fall under Tex. Lab. Code Ann. §401.011(19)(E)'s designation of "prescription drugs, medicines and other remedies" as "health care."

Neither Dr. Bailey nor TWCC presented testimony to contradict the Fund's assertions.

The ALJ concludes that the Fund should not be required to reimburse Waco Ortho for the $114.33 in non-prescription medicines provided to the Claimant.

Interest on Unpaid Claims

Based on Tex. Lab. Code Ann. §§401.023 and 413.019, and 28 TAC §134.803, the Fund is required to pay Waco Ortho interest on medical bills is paid on or after the 60th day after the Fund originally received the complete bill. The rates are set by TWCC for each quarter.

For the bills that the Fund rejected as violating the two-hour session limit, for which it supplied, EOBs, interest should begin on the 60th day after the receipt date set out on the EOB, which is the only evidence in the record of when the bill was received. For example, the bill for 10/19/98 was received 11/09/98 (Ex. I at page 253); interest should begin accruing 60 days after that date.

The bills for which there were no EOBs were first submitted May 17, 1999. The Fund received those May 19, 1999. Ex. I at page 42. Interest on those bills should begin accruing 60 days after that date.

IV. Findings of Fact

  1. The Claimant, who was an employee of the Waco Independent School District, suffered a compensable shoulder injury _____.
  2. Texas Association of School Boards Risk Management Fund (the Fund) was the Claimant's employer's carrier for workers' compensation insurance.
  3. The disputed dates for services provided to the Claimant by Waco Ortho Rehab (Waco Ortho) are from May 28, 1998, through March 15, 1999.
  4. After Waco Ortho was not reimbursed for some of its services, it resubmitted claims to the Fund on May 17, 1999.
  5. Waco Ortho filed a Request for Medical Dispute Resolution with the MRD on May27, 1999.
  6. The Medical Review Division (the MRD) of the Texas Workers' Compensation Commission (TWCC) MRD issued its original Findings and Decision on September 25, 2000.
  7. The MRD withdrew that decision and issued an amended Decision on January 24, 2001. In that Decision, the MRD ordered the Fund to reimburse Waco Ortho $3,056.83.
  8. The Fund requested a hearing before the State Office of Administrative Hearing; (SOAH); Waco Ortho did not challenge the MRD decision.
  9. The hearing was held September 27, 2001, at SOAH's hearings facility in Austin. David Swanson represented the Fund. Jacqueline Harrison represented TWCC. David Bailey, D.C. represented Waco Ortho. Various documents, including the certified record that was before the MRD, were admitted into evidence. Mr. Herman Wilks, the Fund's Director of Medical Benefit s Administration; Dr. Bailey; and Ms. Katherine Owens, one of Waco Ortho's office personnel, testified. The hearing was adjourned the same day.
  10. The charges for which the MRD ordered reimbursement fall into four categories: (1) whether preauthorization should have been requested for physical therapy on certain dates ($840.00); (2) whether the two-hour time limit of the Medicine Fee Guideline was exceeded for some dates of service ($1,014.00); (3) whether bills were properly sent to the Fund for some dates of service ($1,088.00); and (4) whether Waco Ortho should be reimbursed for nonprescription medications it provided to the Claimant ($114.33).

Preauthorization

After reviewing additional information supplied by the Fund, Waco Ortho agreed that preauthorization should have been, but was not, obtained for physical therapy for the dates of service at issue. Those dates were July 14, 15, and 17, 1998. Waco Ortho withdrew its request for reimbursement for those dates.

Two-Hour Time Limit

  1. The Fund denied reimbursement for several dates of service on the theory that Waco Ortho had exceeded the two-hour time limit for physical medicine sessions set forth in the TWCC Medicine Ground Rules, 28 TAC §134.201, Section I.A.10.a.
  2. Physical Therapy, Code 97110 is considered a "timed" code because it is billed in 15-minute units.
  3. On several dates of service, Waco Ortho billed for eight units of Code 97110 and also billed for other, untimed codes that are within the definition of "physical medicine session.'' The most common procedures were joint mobilization (Code 97265) or myofascial release (Code 97250).
  4. Including the untimed codes within the two-hour time limit creates a practical problem, moreover, because there is no mechanism for determining how much time an "untimed" procedure takes, or is supposed to take.
  5. Dr. Bailey has conferred with TWCC personnel many times; they have agreed with his interpretation of Section I.A.10.a.
  6. Dr. Bailey helped draft other TWCC guidelines and acted in an advisory role regarding this particular guideline.

Whether Bills Were Sent

  1. The Fund did not provide Explanations of Benefits (EOBs) for several dates of service.
  2. Mr. Herman Wilks, the Fund's Director of Medical Benefits Administration, searched the Fund’s paper and electronic records and that Waco Ortho had not sent bills for the dates in question.
  3. Ms. Katherine Owens, who works at Waco Ortho, personally assembled the package submitted to the Fund for reconsideration; it incorporated all the outstanding unpaid bills, including the ones at issues.
  4. Ms. Owens did not submit the original bills.
  5. Waco Ortho did not initially submit the bills for which no EOBs were provided, but did include them in its May 17, 1999, resubmission.

Non-Prescription Medications

  1. Waco Ortho billed the Fund $114.33, under CPT Code 99070 (other supplies and materials) for non-prescription medications it provided to the Claimant.
  2. Neither insurance health plans nor the Fund reimburses for such non-prescription medicines.

Interest on Unpaid Claims

  1. The bills that the Fund rejected as violating the two-hour session limit were received on the dates set out on the Explanations of Benefits (EOBs).
  2. The bills for which there were no EOBs were first submitted May 17, 1999.

V. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. chapter 401 et seq.
  2. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. Chapter 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
  4. Under 28 Tex. Admin. Code (TAC) §148.21(h), the Petitioner has the burden of proof in hearings, such as this one, conducted pursuant to §413.031 of the Act. Thus the Fund has the burden of proving Waco Ortho is not entitled to the reimbursement ordered by the MRD.
  5. The Fund should not be required to reimburse Waco Ortho for the $840.00 related to the preauthorization issue.
  6. SOAH has considered whether untimed codes should be included within the two-hour time limit of the TWCC Medicine Ground Rules, 28 TAC § 134.201, Section I.A.10.a. in one case, Docket No. 453-99-1216.M5, Liberty Mutual Insurance Company/Arrow Clinic v. Texas Worker's Compensation Commission and Arrow Clinic/Liberty Mutual Insurance Inc.
  7. In Docket No. 453-99-1216.M5, the ALJ determined that the rule referred to clock time, not billed time, and that a physical medicine session could not exceed two hours as measured by a clock.
  8. The inclusion of untimed codes was not the main issue in Docket No. 453-99-1216.M5, and it is unclear how thoroughly the parties debated and presented evidence on that question.
  9. Docket No. 453-99-1216.M5 does not dispose of the Section I.A.10.a issue in this case.
  10. Considering the ambiguity of Section I.A.10.a in the context of the Medicine Ground Rules, the practical problems with incorporating untimed modalities into the two-hour limit, and the testimony of Dr Bailey, the Fund has not met its burden of proving that Waco Ortho's billings violated that section.
  11. The Fund should. be required to reimburse Waco Ortho $1,014.00 for the services for which it denied reimbursement based on Section I.A.10.a.
  12. The Fund should be required to reimburse Waco Ortho for the bills which were submitted May 17, 1999, for which it did not provide EOBs, in the amount of $1,088.50.
  13. The non-prescription items provided to the Claimant by Waco Ortho do not fall under Tex. Lab. Code Ann. §401.011(19)(E)'s designation of "prescription drugs, medicines and other remedies" as "health care."
  14. The Fund should not be required to reimburse Waco Ortho for the non-prescription items.
  15. Based on Tex. Lab. Code Ann. §§401.023 and 413.019, and 28 TAC §134.803, the Fund is required to pay Waco Ortho interest on medical bills paid on or after the 60th day after the Fund originally received the complete bill.
  16. For the bills that the Fund rejected as violating the two-hour session limit, interest should begin on the 60th day after the receipt date set out on the EOB.
  17. Interest on the bills for which there were no EOBs should begin accruing 60 days after May 19, 1999.

ORDER

IT IS, THEREFORE, ORDERED that the Petitioner, TASB Risk Management Fund, shall reimburse Respondent Waco Ortho Rehab $2,102.50, plus interest, for the services that are the subject of this dispute. Interest shall be calculated as set forth in Section III.B.5 and Findings of Fact Nos. 17 and 18 of this Decision and Order.

Signed October 9th, 2001.

Henry D. Card
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 1 The well-organized and thorough MRD Amended Findings and Decision was very helpful in trying the case and preparing this Decision and Order.
  2. 1

  3. 2 In some cases, the Fund reimbursed at the highest level possible under its interpretation. For example, if myofascial release (Code 97250, billed at $43.00) were performed on the same day as two hours of physical therapy (Code 97110, billed at $35.00 per 15-minute unit), the Fund reimbursed Waco Ortho for the myofascial release plus seven units, instead of eight, of physical therapy. Because different people reviewed the bills, however, the Fund did not follow that practice every time. It sometimes reimbursed for the services in the order they appeared on the bill. There was no evidence that either approach is mandated by TWCC's rules.
  4. 1

  5. 3 Apparently both parties appealed the MRD decision; hence the repetitive caption.
  6. 1

  7. 4 Ex. 1 at page 43 et seq.
  8. 5 Ex. 1 at page 38 et seq.
  9. 1

End of Document
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