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At a Glance:
Title:
453-02-0013-m5
Date:
September 30, 2002

453-02-0013-m5

September 30, 2002

DECISION AND ORDER

This proceeding concerns 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 or TWCC). The MRD Decision upheld the denial of payment by the Insurance Company of the State of Pennsylvania C/O Exxon Mobil Risk Management (Carrier) for Vertebral Axial Decompression (VAX-D) treatments provided by Petitioner. This decision concludes that Petitioner is not entitled to reimbursement because the treatments were not preauthorized.

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

The hearing on the merits was held on June 27, 2002, in Austin, Texas. Petitioner was represented by his attorney, Peter N. Rogers; Carrier was represented by its attorney, James M. Loughlin; the Commission did not appear. Administrative Law Judge (ALJ) Katherine L. Smith presided. The record closed July 30, 2002, with the submission of closing briefs.

III. BACKGROUND

Claimant_____ sustained a work-related injury to his back on________. Petitioner administered 25 VAX-D treatments in June and July 1999 to relieve Claimant’s ongoing back pain.[1] Using CPT Code 97799,[2] Petitioner billed Carrier $235 per treatment. CPT Code 97799, which is used for unlisted physical medicine services or procedures, does not have a maximum allowable reimbursement. Regarding VAX-D as a form of traction, Carrier denied reimbursement because Petitioner failed to obtain preauthorization for the treatment and because of lack of medical necessity. Preauthorization is required for physical therapy sessions in excess of eight weeks pursuant to 28 Tex. Admin. Code (TAC) '134.600(h)(10). Traction is considered to be a type of physical therapy. Claimant’s medical records indicate that he had received at least eight weeks of physical therapy prior to the treatment in question. Respondent’s Ex. 24 at 20. The MRD issued its Findings and Decision on June 25, 2001, denying reimbursement. Petitioner requested a hearing on July 25, 2001, and the Commission issued its Notice of Hearing on September 10, 2001.

. IV. DISCUSSION

A. Petitioner’s Position and Evidence

Petitioner’s position is that VAX-D is not traction, but is a type of physical medicine that does not require preauthorization. Whereas traction is ineffective, VAX-D is successful about 70% of the time, according to clinical studies relied on by Petitioner’s witness, Charles Robert Crane, M.D. Whereas traction is defined as a pull along an axis, VAX-D is more complicated. It consists of “distraction,” which is “a gradually increasing pull and release until a certain point is reached and then the force of the pull is decreased. A computer is required to control the degree of force applied. The process includes fifteen cycles of pulling and releasing.” According to Petitioner, an additional difference is that VAX‑D requires both supervision and constant monitoring while traction requires only supervision.

Petitioner also asserts that the limitation imposed by Section 134.600(h)(10) applies only to physical therapy. According to Drs. Boudreau and Crane, physical therapy is properly defined as therapy provided by a licensed physical therapist or under the direction of a licensed physical therapist. Petitioner asserts that the treatment provided in this case is listed in the Medical Fee Guideline as physical medicine, which does not require preauthorization. Even if the treatment were considered to be traction, Petitioner argues that Section 134.600(h)(10) is inapplicable and preauthorization is not required because it was not provided by a physical therapist and is considered to be physical medicine. Petitioner also asserts that Dr. Michael Kreb, the Carrier’s peer review doctor, does not consider VAX-D to be a conventional physical therapy modality requiring preauthorization.

In support of his position, Petitioner relies on two previous decisions of the State Office of Administrative Hearings (SOAH) in which the ALJs held that preauthorization is not necessary for VAX-D because it constitutes physical medicine and not physical therapy.[3] Even though those decisions may have been based on the assumption that the American Medical Association (AMA) would adopt a specific CPT Code for VAX-D, which has not occurred, Petitioner argues that there are many procedures that have not been assigned CPT codes, and that it was proper to bill under CPT Code 97799. Petitioner also challenges Carrier’s claim that the AMA has taken the position that VAX-D should be billed under CPT code 97012, which is the CPT code for traction. Petitioner asserts that the more appropriate code would be CPT code 97139‑AT for autotraction, which also has no maximum allowable reimbursement.

B. Carrier’s Position and Evidence.

Carrier contends that Petitioner is not entitled to reimbursement because preauthorization for the VAX-D treatment was not obtained. Carrier asserts that VAX-D is a form of physical therapy that requires preauthorization under Section 134.600(h)(10) if a claimant has already received eight weeks of physical therapy or occupational therapy. Carrier asserts that the terms “physical medicine” and “physical therapy” are interchangeable as indicated in Medicine Ground Rule I.A.9., which states that “[f]or the purpose of this fee guideline, the following codes are considered physical medicine care or therapy.”[4] The list includes modalities-CPT codes 97010-97039; procedures-CPT codes 97110-97139; and physical medicine activities-CPT codes 97220-97541. Carrier argues that the term physical medicine or physical therapy applies to a large group of treatments and services including hot/cold packs, mechanical traction, electrical stimulation, therapeutic procedures such as weight training and aerobic activities, massage, and training in daily living. See SOAH Docket No. 453-98-0167.M4 (Apr. 20, 1998, ALJ Parsley). After a claimant has received eight weeks of treatment with any combination of those treatments and services, preauthorization is required in order to provide additional physical medicine/therapy. As a type of modality, that is, a mechanical agent applied to produce therapeutic changes to biologic tissue, VAX‑D constitutes physical medicine care or therapy, which requires preauthorization once a claimant has already had eight weeks of physical medicine/therapy.

Carrier argues more specifically that VAX-D is motorized spinal traction. Citing to Dorland’s Medical Dictionary, Carrier notes that traction is “the act of drawing or exerting a pulling force, as along the long axis of a structure” and “lumbar traction” as “traction applied to the lumbar spine.” Respondent’s Ex. 1. Carrier notes that “VAX-D uses a two-piece motorized table in which the patient holds on to handgrips on one end of the table while their pelvis is placed into a harness on the other end. The two parts of the table then slowly separate and come back together in cycles, thereby exerting a pulling force along the axis of the spine.”

Carrier asserts that the Food and Drug Administration (FDA), which is responsible for regulating medical devices in this country, regards VAX-D as a traction device based on form 510(k), Summary of Safety and Effectiveness, supplied by VAT-TECH Inc., VAX-D’smanufacturer, which lists VAX-D’s common name as “Traction Equipment, Powered” and its classification name as” Equipment, Traction, Powered.” Respondent’sExs. 7 and 8. Carrier also asserts that in its Medicare Coverage Issues Manual, the Department of Health and Human Services Centers for Medicare and Medicaid Services regards VAX-D as traction. Respondent’s Ex. 20. Carrier finally notes that according to the AMA, “raction treatment using computerized/motorized types of traction devices” should be reported using CPT code 97012—“Application of a modality to one or more areas; traction, mechanical.” CPT Assistant, American Medical Association, Vol. 9, Issue 5, May 1999 at 11, admitted as Respondent’s Ex.11.

C. Analysis.

Petitioner testified that VAX-D is physical medicine and not physical therapy because physical therapy is properly defined as therapy provided by or under the direction of a physical therapist. The ALJ does not understand the relevance or distinction of this testimony. According to Medicine Ground Rule I.A.9.b., which describes the therapeutic procedures under which a physical therapist might bill, supervision by a doctor or health care professional is required. Petitioner also presented evidence that VAX-D works, whereas traction does not. This evidence is insufficient to prove that the VAX-D is physical medicine, and not a form of traction. The ALJ agrees with the Carrier that VAX-D is a type of traction, albeit automated or motorized. Information from the AMA, the VAX-D manufacturer (VAT-TECH, Inc), and the FDA all indicate that the VAX-D treatment is traction. Dr. Crane admitted that traction is a form of physical therapy treatment that requires preauthorization beyond eight weeks.

The ALJ also agrees with the recent decision issued by Judge Stephen Pacey that the two SOAH decisions upon which Petitioner relies appear to be based on incorrect facts.[5] The conclusions reached in those cases were based on the incorrect fact that the AMA had approved a separate physical medicine CPT code for VAX-D. Contrary to the facts represented in SOAH Docket No. 453-99-0063.M2, neither the AMA nor the Commission approved a separate physical medicine CPT code for VAX-D.[6] As noted above, credible evidence indicates that the AMA treats VAX‑D as a type of traction, not physical medicine. The AMA also notes that the proper CPT code for VAX-D is 90712. Even though the more appropriate code may be 97139-AT for auto traction,[7] as Petitioner suggests, the ALJ notes that the Medicine Ground Rules list 97139 as a therapeutic code along with 97110 and 97150, which are the codes normally used by physical therapists. See SOAH Docket No. 453-01-1081.M4 (May 25, 2001, ALJ Smith).

Because Petitioner failed to obtain preauthorization for the VAX-D treatments that were in excess of eight weeks of physical therapy, reimbursement is denied.[8]

V. FINDINGS OF FACT

  1. Claimant _____ suffered a compensable injury to his back on __________At the time Claimant sustained his compensable injury,Insurance Company of the State of Pennsylvania C/O Exxon Mobil Risk Management (Carrier) was the workers’compensation insurer for Claimant’s employer.
  2. Claimant was referred to Daniel A. Boudreau, D.O. (Petitioner) for treatment for ongoing back pain.
  3. Dr. Boudreau determined that Claimant was a suitable candidate for VAX-D treatments and provided 25 VAX-D sessions during June and July 1999.
  4. Claimant previously had at least eight weeks of physical therapy prior to his VAX-D treatment with Dr. Boudreau.
  5. Dr. Boudreau billed under physical medicine CPT code 97799 for the 25 VAX-D sessions.
  6. Carrier denied payment because Dr. Boudreau did not obtain preauthorization for the VAX‑D treatments.
  7. Dr. Boudreau submitted a request for dispute resolution to the Texas Workers’ Compensation Commission (Commission).
  8. By order dated June 25, 2001, the Commission’s Medical Review Division (MRD) denied reimbursement for the 25 treatments provided by Dr. Boudreau to Claimant because of lack of preauthorization.
  9. Dr. Boudreau filed a timely appeal of the MRD decision on July 25, 2001, and the Commission issued its Notice of Hearing on September 10, 2001.
  10. Traction is a form of physical therapy treatment.
  11. VAX-Tech Inc, VAX-D’s manufacturer, lists VAX-D’s common name as Traction Equipment, Powered and its classification name as Equipment, Traction, Powered.
  12. The Food and Drug Administration regards Vax-D as a traction device.
  13. The American Medical Association instructs that computerized/motorized traction be billed as traction.
  14. VAX-D is a type of traction.
  15. The office visit, consultation, and range of motion evaluation rendered to Claimant on June 10, 2002, to determine whether he was a candidate for VAX-D was medically necessary.
  16. The Maximum Allowable Reimbursement for the office visit, consultation, and range of motion evaluation is $184.00.

VI. CONCLUSIONS OF LAW

  1. 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.
  2. 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(k) and Tex. Gov’t Code Ann. ch. 2003.
  3. Petitioner timely requested a hearing in this matter pursuant to 28 TAC §§ 102.7 and 148.3.
  4. Petitioner had the burden of proof in this matter pursuant to 28 TAC § 148.21 (h) and (i).
  5. An employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the compensable 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).
  6. Preauthorization is required for physical therapy or occupational therapy beyond eight weeks of treatmentpursuant to 28 Tex. Admin. Code § 134.600 (h)(10).
  7. Carrier properly classified VAX-D as traction, a form of physical therapy that requires preauthorization beyond eight weeks of physical therapy treatment.
  8. Based on Findings of Fact Nos. 11-15 and Conclusions of Law Nos. 6-7, Petitioner was required to seek preauthorization for the 25 VAX-D treatments provided by Petitioner to Claimant ___.
  9. Based on Findings of Fact Nos. 16-17 and Conclusion of Law No. 5, Petitioner is entitled to reimbursement of $184.00 for medically necessary services.

ORDER

IT IS, THEREFORE, ORDERED that the appeal of the Daniel A. Boudreau, D.O. requesting reimbursement for the VAX-D treatments and office visits provided is DENIED, but that the appeal requesting reimbursement in the amount of $184.00 for the office visit, consultation, and range of motion evaluation of June 10, 1999, is GRANTED.

Signed this 30th day of September 2002.

KATHERINE L. SMITH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Petitioner also billed for a back brace, lumbar roll, pads and fitting for EMS unit, and a radiologic examination. The MRD denied reimbursement due to lack of medical necessity because Petitioner did not provide medical records in support of the treatments or services. Because Petitioner failed to provide medical records or additional evidence in this proceeding, the underlying MRD decision stands and will not be addressed further.
  2. 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).
  3. SOAH Docket No. 453-99-0063.M2 (April 28, 1999, ALJ Landeros) and SOAH Docket No. 453-02-0538.M5 (February 21, 2002, ALJ Zukauckas), a subsequent decision in which Judge Bill Zukauckas followed Judge Landeros’ rationale and reversed his previous decision in SOAH Docket No. 453-98-2243.M2 (Feb. 19, 1999, ALJ Zukauckas) that VAX-D was not physical medicine.
  4. The Medicine Ground Rules of the Medical Fee Guideline, which was adopted by reference in 28 TAC § 134.201.
  5. SOAH Docket No. 453-01-1433.M4 (May 21, 2002, ALJ Pacey).
  6. The pertinent part in SOAH Docket No. 453-99-0063.M2 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.” (Emphasis added)
  7. Medicine Ground Rule I.C.1.l.
  8. Petitioner also billed for office visits on June 24, July 13 and 22, 1999. As the office visits of June 24, July 13 and 22, 1999, were to evaluate Claimant’s progress under the VAX-D treatment, the ALJ determines that reimbursement for those office visits should also be denied. As for the office visit, consultation, and range of motion evaluation that took place on June 10, 1999, the ALJ determines that those services should be reimbursed in the amount of $184.00 in that Petitioner was entitled to consider whether VAX-D treatment was reasonable for Claimant. See TWCC Ex. 1 at 4, 78.
End of Document
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