DECISION AND ORDER
Clem Martin, D.C., (Petitioner) appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M5-00-0748-01, which upheld a denial of reimbursement by East Texas Educational Insurance Association (Carrier) for chiropractic services rendered to ______ (Claimant). The MRD decision, issued March 30, 2001, denied reimbursement based on lack of medical necessity. This decision finds reimbursement should be paid for only two of the contested billings.
I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY
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.
The hearing in this matter was held May 22, 2002, at the Hearings Facility of the State Office of Administrative Hearings, 300 West 15th Street, Fourth Floor, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Petitioner appeared pro se. Carrier was represented by its adjuster, Neal Moreland. Respondent Commission did not participate. The record closed that same day after receipt of evidence and argument.
A. Background Facts
In__________, Claimant suffered an injury to her lumbar spine compensable under the Texas Workers' Compensation Act. At the time of her compensable injury, Carrier was the worker’s compensation insurer for Claimant’s employer. In May 1998, Petitioner became Claimant’s treating doctor and diagnosed her with low back pain and lumbar degeneration. Petitioner treated Claimant for periodic “flare-ups” of pain resulting from fibrosis. (Exh. 1, p. 33). By December 1998, Petitioner began seeing Claimant on an “as needed” basis. Carrier denied payment for Petitioner’s chiropractic services from April 23, 1999, through February 2000, based on lack of medical necessity, a denial which was upheld in the MRD decision. Petitioner appealed, seeking $583 in reimbursement.
B. Legal Standards
Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i). Pursuant to the Act, an employee who has sustained 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 compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. §408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. § 401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. §401.011(31).
Spine Treatment Guideline
The Commission’s Spine Treatment Guideline, 28 TAC §134.1001, effective February 2000, sets certain requirements for treatment of spinal maladies. The Guideline requires a documented treatment plan (including proposed methods, expected outcomes, and probable duration) and documentation substantiating any need to deviate from the Guideline. 28 TAC §134.1001 (e)(3)(B)(iii). The treating doctor must demonstrate the appropriateness of all services and the relatedness of all services to the compensable injury. 28 TAC §§ 134.1001(c)(2)(A)(ii) and (iii). Treatment must be based on the injured worker’s need and the doctor’s professional judgment. 28 TAC §134.1001(e)(1). The Guideline recognizes three levels of care based on the length of treatment, type of injury, and response to treatment. Additionally, the Guideline recognizes a post-tertiary level of treatment which is intended to control pain or other symptomology, and maintain functioning.
The Guideline recognizes that some injured workers may require additional evaluations or modification of a treatment plan. 28 TAC § 134.1001(h)(1)(C). An injured worker may, depending upon clinical indicators, move between the Guideline’s levels of care or utilize more than one level of care simultaneously. 28 TAC §§ 134.1001(e)(2)(G) and (g)(1). In general, the most economical form of treatment is preferred. 28 TAC §134.1001(g)(5).
C. The Disputed Charges
Petitioner billed and Carrier denied payment for the following CPT codes:
CPT/DescriptorDate(s)EOB Denial Code
95533(caloric vestibular test) 4/23/99 N (Not documented) (Exh. 1, p. 289).
248 (No documentation to support medical necessity and/or relationship to injury. For reconsideration, submit with adequate documentation.) (Exh. 1, p. 289)
1/19/00U (Unnecessary medical)(Exh. 1, p. 293)
99050(after office hours services)10/21/99 N (Not documented) (Exh. 1, p. 291).
225 (Submitted documentation does not support the service being billed for B will re-evaluate upon receipt of clarifying information.) (Exh. 1, p. 290).
99080, 99080-64 (special reports)11/15/99 (2) U (Unnecessary medical) (Exh. 1, p. 291).
1/3/00 U (Unnecessary medical) (Exh. 1, p. 292).
1/17/00(2)U (Unnecessary medical) (Exh. 1, p. 292).
2/11/00U (Unnecessary medical) (Exh. 1, p. 293).
99214MP (office visit with 12/27/99 U (Unnecessary medical) (Exh. 1, p. 292).
manipulation Bestablished patient,2/7/00 U (Unnecessary medical)(Exh. 1, p. 293).
moderate to high severity)
99213MP (office visit with 1/19/00 U (Unnecessary medical)(Exh. 1, p. 293).
manipulation -- established patient,1/21/00 U (Unnecessary medical)(Exh. 1, p. 293).
low to moderate severity) 1/31/00 U (Unnecessary medical)(Exh. 1, p. 293).
2/23/00U (Unnecessary medical)(Exh. 1, p. 294).
Carrier’s denial of reimbursement was based on the opinion of a peer review doctor, Dr. David Wagner, D.C., dated December 13, 1999, and the fact Claimant was found by two different doctors to be at MMI in November 1998 and February 1999.
Petitioner argued that Dr. Wagner’s opinion was unreliable as it was based on incomplete information because Dr. Wagner did not have Claimant’s medical records from May 1998 through October 1999. Petitioner also argued that the MMI finding was irrelevant to the issue of whether his services constituted medically necessary healthcare.
At the hearing, Petitioner claimed Carrier was trying to assert, for the first time, lack of documentation as a basis for the denials. As shown above, the MRD record (Exh. 1) established that during the claims process Carrier denied reimbursement for two services (CPT 95233 and CPT code 99050) based on lack of documentation. Reimbursement for the rest of the disputed services was denied based on lack of medical necessity.
Communications between Petitioner and Carrier during the claims process focused on the issue of documentation, according to documents in the MRD record. For instance, handwritten notes, apparently by Petitioner’s representative, described various conversations during which Carrier’s representatives requested additional documentation for certain services. (Exh. 1, pp. 225-6). The MRD record even contained a transcription of a telephone conversation between Carrier’s and Petitioner’s representatives in which Carrier requested additional documentation. (Exh. 1, pp. 227-8). In these communications, Petitioner argued that Carrier was not entitled to documentation to support his billings because none of the CPT codes billed were reimbursed as “DOP” (documentation of procedure) under the Commission’s Medical Fee Guidelines, but rather each of the billed codes had an assigned maximum allowable reimbursement (MAR) amount.
Even though these discussions were not clearly tied to the disputed services in this case, the record makes it clear that Carrier had an ongoing problem getting Petitioner to submit supporting documentation with regard to services to Claimant, perhaps because of Petitioner’s misguided interpretation of the Commission’s Fee Guidelines.
As used in the Commission’s rules, the acronym DOP simply means there is no established reimbursement amount and that reimbursement for the procedure is determined based upon the level of supporting documentation submitted. General Instructions II, 28 TAC §134.201. The fact that a procedure has a set reimbursement amount (MAR) instead of being reimbursed at rates determined by DOP does not mean the provider need not submit supporting documentation for the billing, especially in the face of a denial of reimbursement as unnecessary medical treatment. In fact, the Commissions General Instruction specifically states that a Carrier may request additional documentation from the provider to justify a bill. General Instructions I.C., 28 TAC § 134.201.
A service with a MAR differs from a service that is DOP only as to how the reimbursement amount is determined. The former has a set amount, the latter is set according to the level of service as established by supporting documentation. MAR and DOP establish only the amount of reimbursement, not whether reimbursement should be paid. Whether a service should be paid at all, under a MAR or as DOP, always depends on adequate documentation. So while it is true that each of the disputed CPT codes in this case are MAR codes, Petitioner needed to justify the services with supporting documentation, especially when requested to do so.
Petitioner correctly argued that the fact Claimant had reached MMI is irrelevant to her entitlement to medical benefits. Under the Act, the employee is entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. §408.021(a). A claimant’s right to medical care under the Act is not diminished when she reaches MMI. MMI affects only the calculation of income benefits. Carrier’s reliance on MMI as a basis for the denial was, at best, misguided.
Medical Necessity B General Need Versus Specific Billings
Petitioner proved that treatment of Claimant’s back pain was intermittently medically necessary during the time period relevant to this case. However, with one exception, Petitioner failed to establish that the particular procedures or services provided were medically necessary health care for Claimant.
General Need. Petitioner’s diagnosis of Claimant as having multiple disc pathologies was supported by consulting and MMI doctors who examined claimant. The doctors generally agreed that Claimant had lumbar disc syndrome, among other maladies. (Exh. 1, pp. 131, 174). An MRI revealed a disc protrusion at L5-S1. (Exh. 1, p. 174, 184).
With regard to Claimant’s need for continuing care, Petitioner submitted TWCC 64 forms which explained the rationale for treatment during the period in question. One typical explanation stated:
. . . It was the opinion of this provider and most of those who have seen her that her condition was chronic and largely the result of late initiation of treatment. She has persistent healing residuals (fibrosis) that predispose her to flare-ups as a result of daily living.
. . . She has periods in which she does fairly well and then with minimal excitation she will have rather intense flare-ups of back pain. Her back pain events are intense and disabling. During these events it is necessary to see her on repetitive basis in order to moderate the causalgic event. . . . She has sought out employment and found a management job. It is now not only become our duty to treat her for pain and symptom relief but to retain her at a level so that she may retain employment. . . . (Exh. 1, p. 33).
Petitioner’s explanation sufficiently, if succinctly, stated the cause of Claimant’s on-going pain, described a rudimentary treatment plan, and enumerated the treatment goals. Petitioner’s explanation was supported by accompanying “pain drawings,” (the patient’s subjective depiction of pain), summaries of range of motion testing for the cervical and lumbar spine, and patient chart notes which, while largely illegible, showed some type of repeated and consistent testing of Claimant’s condition.
Dr. Wagner’s opinion that Claimant did not need further medical care for her back injury, admittedly based on incomplete medical records and rendered without examining Claimant, could not be given much weight.
b. Specific Billings. Petitioner had the burden of proof in this case, meaning he had to show by a preponderance of the evidence that Carrier’s denial of reimbursement was improper. While Petitioner showed that, in general, Claimant needed medical treatment intermittently for her back pain during the period in question, with regard to the specific CPT codes in dispute, Petitioner failed to supply sufficient information to justify billing for the particular services rendered, with one exception. At the hearing, Petitioner was given an opportunity to present testimony, either his own or that of other witnesses, to justify the disputed services. Instead of explaining the particular billings at issue, Petitioner chose to present arguments about Claimant’s general need for treatment and why MMI was irrelevant to that need.
c.Disputed CPT Codes.
95533(caloric vestibular test). Carrier denied reimbursement for this service on the basis of a claim this testing was generally used for complaints of dizziness, which was not a problem for Claimant. (Exh. 1, p. 43). By letter dated January 17, 2000, Petitioner explained this procedure was used to evaluate Claimant’s posture, stating: “If you had been familiar with the vestibular apparatus which fires powerfully into hemologus neural columns that activate extraoccular muscle activity primarily in the horizontal plane and posture control, there would have been familiarity how this procedure may be applied therapeutically. You would agree that posture is significant to loading of injured discs would you not?” (Exh. 1, p. 38; emphasis original). This explanation was just barely sufficient to explain the medical necessity of this procedure for Claimant on both dates it was rendered.
99050 (services requested after office hours) Petitioner charged for after hours services provided on October 21, 1999. The record does not show what these services were or why they had to be provided after hours. In response to Carrier’s inquiry, Petitioner explained only that the charge did not require “documentation of procedure.” (Exh. 1, p. 45).
99080, 99080-64 (special reports). Petitioner billed for six reports on four different dates. Petitioner did not identify what these reports were or explain why they were necessary.
99214MP (office visit with manipulation B established patient, moderate to high severity) 99213MP (office visit with manipulation -- established patient, low to moderate severity)
Petitioner billed for six office visits. The record lacked documentation sufficient to support these billings and did not explain why the office visit code used varied from visit to visit.
The Commission’s rules require a carrier to notify a provider of the reduction of a bill and to include the payment exception code on the provider’s bill. 28 TAC §§ 133.300(d)(4) and (f). Petitioner argued that because Carrier had not originally denied reimbursement based on lack of documentation, it may not assert that basis for denial in this proceeding. As noted above, Carrier denied one of the caloric vestibular testing bills and the after hours services bill based on lack of documentation. Petitioner provided an explanation for the caloric vestibular testing but not for the after hours services. With regard to denials based on unnecessary medical treatment, Petitioner failed to show that the specific services billed were medically necessary, with the exception of the last caloric vestibular testing.
With the exception of the caloric vestibular testing, the only specific references in the record to the disputed services are found in the TWCC-62 forms denying payment. With that one exception, Petitioner did not explain why the billed services were medically necessary. The ALJ simply cannot tell from this record why, for instance, Claimant needed after office hours services on October 21, 1999.
When seeking reimbursement, it is not enough for a provider to prove that a claimant needed some medical care. The provider must also show that the particular services and procedures billed were appropriate to treat that claimant’s compensable condition. Perhaps because he misunderstood his obligation as a provider to provide supporting document for billings, Petitioner failed to prove that the bulk of the disputed services to Claimant were medically necessary.
Petitioner should be reimbursed for the caloric vestibular testing on April 23, 1999, and January 19, 2000. He was not shown to be entitled to reimbursement for any of the other disputed services.
III. FINDINGS OF FACT
- In___________, _____ (Claimant) suffered an injury to her lumbar spine compensable under the Texas Workers' Compensation Act.
- At the time of her compensable injury, East Texas Educational Insurance Association (Carrier) was the worker’s compensation insurer for Claimant’s employer.
- In May 1998, Clem Martin, D.C., (Petitioner) became Claimant’s treating doctor and diagnosed her with low back pain and lumbar degeneration. Petitioner treated Claimant for periodic “flare-ups” of pain resulting from fibrosis.
- By December 1998, Petitioner began seeing Claimant on an “as needed” basis.
- Carrier denied payment for Petitioner’s chiropractic services from April 23, 1999, through February 2000, based on lack of medical necessity, a denial which was upheld in the Commission’s Medical Review Division’s (MRD) decision.
- Petitioner appealed the MRD decision, seeking $583 in reimbursement.
- Petitioner sought reimbursement for the services and dates of service listed below:
CPT CODE DATE OF SERVICE
95533(caloric vestibular test) 4/23/99
99050(after office hours services) 10/21/99
99080, 99080-64 (special reports) 11/15/99 (2)
99214MP (office visit with 12/27/99
manipulation Bestablished patient, 2/7/00
moderate to high severity)
99213MP (office visit with 1/19/00
manipulation -- established patient, 1/21/00
low to moderate severity) 1/31/00
- Except for CPT codes 95533 and 99080, Carrier’s denials were all based on lack of medical necessity. For the April 23, 1999, CPT code 95533 billing and the October 21, 1999, CPT code 99080 billing, Carrier denied reimbursement based on lack of documentation.
- Upon being informed during the claims process that Carrier was denying reimbursement, Petitioner had the opportunity to, but did not, submit to Carrier additional documentation to support his requests for reimbursement.
- Claimant needed medical treatment of her back injury at times during the period from April 23, 1999, through February 23, 2000.
- On two occasions, Petitioner billed under CPT code 95533 for testing of Claimant’s posture, which was used to evaluate how her discs were loaded.
- The services billed under CPT code 95533 were medically necessary health care for Claimant.
- Except for CPT 95533, Petitioner provided no information to show why the services billed under the remainder of the disputed CPT codes were medically necessary health care for Claimant when provided.
IV. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (Act), TEX. LABOR 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 § 413.031(d) of the Act and TEX. GOV'T CODE ANN. ch. 2003.
- The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX.ADMIN.CODE (TAC) § 133.305(g).
- Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
- Petitioner has the burden of proof in this proceeding. 28 TAC §§148.21(h) and (i).
- Pursuant to the Act, an employee who has sustained 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 compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. § 408.021(a).
- Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
- Pursuant to the Commission’s rule at 28 TAC § 134.201, General Instructions I.C., an insurance carrier questioning the code or modifier used for a billed service or procedure shall call the HCP to verify the code or modifier or to request additional documentation, if this information is not already provided with the submitted bill. This not only allows the HCP the opportunity to submit additional documentation to justify the billing but also eliminates delays caused by return and resubmission of bills.
- The only services Petitioner rendered Claimant that were shown to be medically necessary health care were billed under CPT code 95533.
- Petitioner is entitled to reimbursement only for the services billed on April 23, 1999, and January 19, 2000, under CPT code 95533.
IT IS ORDERED that East Texas Educational Insurance Association (Carrier) reimburse Clem Martin, D.C., (Petitioner) for the caloric vestibular testing services provided April 23, 1999, and January 19, 2000, and billed under CPT code 95533, for ______ It is further ORDERED that Petitioner is not entitled to reimbursement for the other disputed services in this matter.
Signed this10th day of July 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- See, Comments to Adopted Amendments to 28 TAC§' 134.1001, p. 39. The Comment read:
- Petitioner expressed his position in his letter to Carrier dated January 17, 2000, stating:
- The rule at 28 TAC § 134.201, General Instructions I.C. states:
- The relevant TWCC 64 forms were dated: June 14, 1999;August 20, 1999; October 20, 1999; and January 19, 2000. (Exh. 1, pp. 33, 59, 66, 74). There were several TWCC 64 forms whose date could not be determined so it was not clear they were relevant to the disputed dates.↑
COMMENT: Commenter suggested the addition of language to the third sentence to read “Treatment should be provided. . . maintain function, or correct dysfunction and/or to help . .” RESPONSE: The Commission disagrees. Post-tertiary treatment is for an injured employee who is receiving interventions at a lower frequency, and receiving periodic medical care. It is the intent of post-tertiary treatment to control pain or other symptomology, including pain management, for the duration of the injury. Furthermore, post-tertiary treatment was developed to enable the injured employee to remain at work. Treatment for the correction of a specific dysfunction would more appropriately occur in either the Initial, Intermediate, or Tertiary Phases of Care. When treatment deviates from the guideline, documentation would be required to support the need for treatment.↑
“DOP (Documentation of Procedure) has been placed in the Fee Guideline to direct HCP,s when, and when not to submit reasons (Documentation) for certain procedures. Conversely, TWCC does not consider a procedure aberrant by absence of DOP. TWCC Medical Fee Codes 99050, 99054, 92533, 99241 & 95851 are not suffixed by DOP (Documentation of Procedure.)
In summary, my assistant, Janet, was correct in her position that these unpaid procedures do not require submission of documentation. The TWCC Guidelines are clear: No D.O.P. If the DOP Rule is not applicable then why comply with any other Rules, MARS, Subsequent reports, TWCC Form 64, Impairment Ratings and MMI on TWCC Form 69, et. al.? If one Rule is situational, why not all?” (Exh. 1, p. 38).↑
An insurance carrier questioning the code or modifier used for a billed service or procedure shall call the HCP to verify the code or modifier or to request additional documentation, if this information is not already provided with the submitted bill. This not only allows the HCP the opportunity to submit additional documentation to justify the billing but also eliminates delays caused by return and resubmission of bills.↑