DECISION AND ORDER
Dr. Geraldo Zavala, M.D., P.A. (Provider) has appealed the Amended Findings and Decision of the Texas Workers' Compensation Commission's (Commission) Medical Review Division (MRD) issued July 31, 2001. In its amended decision, the MRD denied reimbursement of $417 for a myelogram performed by the Provider on an injured worker (Claimant). This Decision concludes that the Provider requested and received pre-authorization for the treatment and services provided and should be reimbursed $417.
The hearing was convened on September 6, 2002, at the SOAH hearings facility in the William Clements Building, Fourth Floor, 300 West 15th Street, Austin, Texas. Dr. Zavala appeared in person and represented himself. Respondent Texas Mutual Insurance Company (Carrier) appeared through its attorney, Jeff R. Boggess. The Commission did not participate in the hearing. The hearing adjourned and the record closed that same day.
I. Notice, Jurisdiction, and Venue
Because there were no contested issues regarding notice, jurisdiction, or venue, those matters are addressed in the Findings of Fact and Conclusions of Law without further discussion here.
The Claimant suffered a compensable injury to his back on______. Following this injury, he initially received conservative treatment and later underwent different diagnostic investigations and received physical therapy and epidural steroid injections. Magnetic resonance imagings (MRI) taken July 10, 1998, January 13 and February 1, 1999, demonstrated bulging disks in the areas of L-4, L-5, and L-S-1. When the Claimant continued to suffer severe pain in his back, mostly in the left lower extremity, his treating physician, Dr. Harry Hernandez, D.O., referred him to the Provider for further investigation using a myelographic study.
The non-emergency treatment and services at issue here were provided by the Provider on July 14 - 15, 1999, and billed to the Carrier using CPT codes 99221 ($66), 62284 ($303), and 99217 ($48) for a total of $417. The Carrier denied payment, claiming the Provider had not obtained pre-authorization for the myelogram. The Carrier does not contend that the treatment was not reasonable and medically necessary or that the charges were not fair and reasonable. It refuses to pay only because it contends that the Provider did not seek authorization prior to undertaking the procedure.
III. APPLICABLE Legal Provisions
By statute, an insurance carrier is not liable for those treatments and services that require pre-authorization unless pre-authorization is sought by the claimant or health care provider and either obtained from the carrier or ordered by the commission. The Commission is required to specify in its rules what treatments and services require pre-authorization. The applicable Commission rule provides that a non-emergency myelogram requires pre-authorization.
A provider must request authorization from the Carrier of the recommended treatment or service prior to the date such treatment is to be given and may do so either by telephone or facsimile. "The insurance carrier shall designate an accessible direct telephone number . . . The direct number shall be answered . . . by the carrier’s agent who is delegated to approve or deny requests for pre-authorization, . . ." A carrier must "notify" the treating doctor by telephone or facsimile of the carrier's decision to grant or deny pre-authorization within three working days; and provide written approval or documentation identifying the reasons for denial of the pre-authorization within twenty-four hours of its notice of approval or denial.
As the petitioner, the Provider in the case must prove by a preponderance of the evidence that he received pre-authorization for the myelogram to obtain reimbursement.
IV. ARGUMENT and Evidence
The Provider offered two documentary exhibits and presented his own testimony and that of his nurse. The Carrier presented the testimony of the adjuster who allegedly pre-authorized the procedure and documentary evidence consisting of the certified record from the MRD, an internal technical staff advisory that discusses pre-authorization issues, and its claims abstract log from before and after the dates of service in question, which were admitted without objection.
Documentation in the record shows that the Provider’s nurse, Leticia Gonzalez, recorded that the myelogram was approved “by Mary Speed” on July 1, 1999, on the Claimant’s “Approval for Admission Form.” Ms. Gonzales, who has worked for the Provider over ten years, stated it is among her job responsibilities to obtain medical approvals from carriers, and she followed office protocol in calling for the authorization at issue here. Ms. Gonzales testified that she has a distinct recollection of the telephone conversation with the person who identified herself as Mary Speed and on this occasion: (1) she asked for the adjuster who was handling the case and gave the claim number; (2) was transferred to an adjustor with a female voice that identified herself as “Mary Speed;”(3) informed the adjuster that the Provider had seen the patient and decided the myelogram was necessary; and (4) recorded the adjuster's name and statement of approval on the form while they were speaking on the telephone. Ms. Gonzales indicated that when she asked the adjuster if pre-authorization was needed, she was told "No," and the adjuster said she was approving it as reasonably related to the injury. Ms. Gonzales asserted that the handwritten notes on the "Approval for Admission" form are hers, and they accurately describe her telephone call with Ms. Speed.
In response to the Carrier’s questions, Ms. Gonzales indicated it was her understanding that "everything has to be approved" in advance in order for the doctor to receive payment, and she made no distinction in the type of medical service or treatment that was to be provided. Asked who trained her about approvals, Ms. Gonzales replied that she attended TWCC training meetings. Ms. Gonzales indicated further that when receiving a verbal approval for medical treatment, she usually asks for paperwork and expects a follow-up letter with the approval from a carrier, and admitted it was “unusual” that she never received such a letter from the Carrier in this case. Ms. Gonzales added that: (1) if she [Ms. Gonzales] had spoken with anyone else at TMIC on July 1, 1999, it would have been reflected in her written notes on the form; and (2) if she spoke to someone at TMIC about the myelogram on another occasion, that would also be recorded separately in the records. When the Carrier asked whether she made any distinction between the terms "approval" and "pre-authorization," Ms. Gonzales answered that if pre-authorization was requested, the adjuster would tell them, "Yes, this requires pre-authorization."
The Provider testified that he was present and heard Ms. Gonzales request authorization for the myelogram. He admitted, however, that he did not personally speak to the Carrier’s representative and did not hear what was said to his nurse because he was not listening to the conversation on another telephone.
The Provider also indicated that in over twenty years of practice he has become very familiar with the rules and procedures concerning the filing of claims and importance of obtaining pre-authorization for certain treatments and services. As a result, he stated that he would not have performed the non-emergency myelogram if he was not certain that the carrier had authorized it first. In response to questions about whether his office had sent in a written request for pre-authorization and/or whether it had received a written response from the Carrier as required by TWCC Rule 134.600(e), the Provider noted first that his office had no obligation to send in a written request for approval. He next explained that the long-standing practice was to call and secure a verbal approval and then proceed to treat the patient as necessary in reliance on the verbal approval. The Provider testified that in twenty-three years of following this procedure, he had never had the problem here where a carrier had later denied that it pre-authorized a treatment or service. While he is aware that a carrier has to send written confirmation of approval or denial within three days, the Provider noted that the carriers often send him their written documentation later than three days and sometimes even after a verbally-approved procedure has been performed. He added, however, that such lateness was never an indication that authorization had been denied -- it just meant the carrier was slow in getting its paperwork out. Understanding that everyone "gets busy" at times, the Provider said that he never felt it necessary to complain about a carrier’s failure to document its approval strictly within three days. For this reason, the Provider contends that the failure to receive a written confirmation of approval before performing the myelogram at issue did not cause him concern or to doubt the validity of the verbal approval he had earlier received. He added that it was not until the Carrier refused to reimburse him for the myelogram charges that he became aware that it was claiming he had no pre-authorization for the service.
The Carrier argues that it has written policy and procedures in place to direct its adjusters on how to handle preauthorization requests and even has a separate telephone number and special unit set up to consider these requests. It maintains that since its records show it never got a call from Ms. Gonzales on July 1, 1999, asking for preauthorization for the myelogram procedure, it had no duty to send a written confirmation of approval or denial within three days. The Carrier contends that if Ms. Gonzales was truly familiar with the TWCC rules, she should have known that the Carrier owed her a written confirmation of approval for the myelogram within three days, and she should have looked for the written authorization between her alleged call on July 1 and the July 14 procedure.
To supplement its documentary evidence, the Carrier called its adjuster, Mary Speed. Except for two fairly short periods of time, Ms. Speed indicated she has worked continuously for the Carrier since 1993, and is currently a senior workers compensation specialist in a unit that deals with catastrophic injury situations. Referring to an internal company advisory memo, Ms. Speed explained that the Carrier trains its adjusters to distinguish between the specific services that require pre-authorization and requests for approval of certain medical services, the latter being her job. She testified that she was trained to refer callers seeking pre-authorization to the Carrier’s special pre-authorization department or physician advisors; and (2) she had no authority to give verbal pre-authorization or to issue pre-authorization approval letters to providers.
Ms. Speed testified she is "very confident" that she did not speak with Ms. Gonzales and authorize the myelogram on July 1, 1999, because: (1) she was leaving employment with the Carrier, and July 1, 1999, was her last day on the job; (2) she had no responsibility for handling any files that day; and (3) the claims log shows that the Claimant’s file had been transferred to another adjuster, Matt Supulski, on June 23, 1999. Ms. Speed stated further that when the claims supervisor, Virginia Garcia, reassigned the Claimant’s file to Mr. Supulski on June 23, 1999, the procedure would be for Ms. Garcia to also change the adjuster’s identification number on page one to reflect the reassignment. If a provider had called on July 1, 1999, and asked to speak with the adjuster for this file, Ms. Speed maintained that the procedure was for the operator to transfer that person to the adjuster-of-record, which in this case was Mr. Supulski. Moreover, she expected that if Mr. Supulski received a request for pre-authorization on or about July 1, 1999, he would have documented it appropriately as a referral to the pre-authorization department. In support of her position that the adjusters were not authorized to give pre-authorization approvals, Ms. Speed pointed out different entries in the claims abstract log that showed she and another adjuster were trained to refer the caller to the pre-authorization department. In response to questions from the Provider about the security of the information stored in the claims abstract log, Ms. Speed stated she had worked with this program for years, was very familiar with how it operated, and was not aware of any way that entries could subsequently be altered or added and back-dated.
The dispute and relevant evidence in this case centers on: (1) the Provider’s assertion that, through his nurse, he sought and received authorization over the telephone from the Carrier’s representative prior to undertaking this procedure; and (2) the Carrier’s insistence that the Provider did not request and was not given preauthorization for this procedure. This is the sole reason cited by the Carrier for failing to pay for reasonable and necessary medical treatment rendered to the injured worker at the maximum allowable reimbursement prescribed by the TWCC Medical Fee Guideline.
TWCC Rule 134.600(c) entitles the Provider’s nurse, whose job it was to request authorizations from carriers, to rely on the fact that when she called the Carrier’s number for pre-authorization, she would be speaking with the Carrier’s agent who had the ability to give approval for the procedure. The evidence shows that the Provider’s nurse called the Carrier’s telephone number, asked for the adjuster handling the Claimant’s file, and spoke with someone who identified herself as "Mary Speed" at the Carrier’s office who gave verbal authorization for the myelogram. The Provider was nearby while his nurse made the call heard his nurse describe the intended procedure, ask for authorization for that procedure, and note in the record that approval had been given. Although the Carrier complains that the Provider did not send in a written request for pre-authorization, the applicable rule states that the provider may call or send a written request by facsimile.
For whatever reason, the Carrier does not have any records that show the pre-authorization request was made or that approval was either given or denied. At best, Ms. Speed states that she had "great confidence" that she didn’t speak with Ms. Gonzales. Her confidence appears to stem from the "great" reliance she places on the accuracy of the information in the claims abstract log and the procedures and training that she is sure all Carrier employees follow. While it is a positive or desirable thing for the Carrier to create training advisories and procedures to help its employees do their job, their mere existence does not prove that such procedures and training advice was actually followed in this case.
For instance, in claiming she could not have been the adjuster on July 1, 1999, Ms. Speed places great stock in the fact that page 34 of the claims abstract log has a entry showing the claim was reassigned from her to Matt Supulski by the claims supervisor, Virginia Garcia. Ms. Speed did not testify that she did not work on this file after June 23, 1999, only that the log entry says the file was reassigned. On the next page of the log, she points out another entry was made showing the claim was reassigned again within a month from Mr. Supulski to a Ms. Noble. The inference she makes and the argument articulated by the Carrier is that this log presents an accurate and reliable record of adjusters’ reassignments. The ALJ observes, however, that the first thirty-four pages of this abstract show the adjuster was "Ms. Berg." There is no specific reassignment line showing when the claim was transferred from Ms. Berg to Ms. Speed. Ms. Speed’s name just appears, and Ms. Berg’s is gone. Curiously, the first record in this log of an adjuster’s reassignment is the transfer of the claim from Ms. Speed to Mr. Supulski. Likewise, after less than a month and with almost no entries made during that time, page 35 of the log shows the file was again reassigned from Mr. Supulski to "Ms. Noble." Ms. Noble’s name remains as the adjuster of record consistently until a new name appears at page 48. Again, there is no special reassignment entry line when Ms. Noble’s name disappears and a new adjuster’s name is shown. It is questionable why the Carrier’s personnel only felt it was important to document the reassignment of adjusters during the time period at issue in this case.
Along this same line of reasoning, the Carrier and Ms. Speed indicate it is significant that page 1 of the claims abstract shows the current adjuster’s identification number because this means that when Ms. Gonzales called and asked for the adjuster for this claim; the operator would have directed her call to the adjuster whose number appeared on page 1. They imply that it would have been Matt Supulski and not Mary Speed. However, the only evidence on the accuracy of this implication is that Ms. Speed identified the claims supervisor as the person "who would be the one to change the adjuster’s number." There is no evidence that Ms. Garcia actually did so in this case or that she makes such changes at the same time she reassigns a claim or whether she has any consistent practice on this subject. As such, there is no evidence of what adjuster’s number was available to the operator when referring calls related to this Claimant’s file during the time period in question.
The above record does not establish any consistency in the use of the claims abstract log that would support reliance on this log as proof that Ms. Speed was not working on this file after June 23, 1999, or that her adjuster’s number was not still on the file for referring calls. Further, although the Carrier contends its log is accurate and cannot be altered once an entry is made, this does not address the accuracy of the information that is initially inputted.
While the testimony and documentary evidence leaves many questions unanswered from either perspective, the ALJ finds that the greater weight of the reliable and credible evidence shows that authorization was requested and received verbally by the Provider before he performed the non-emergency myelogram.
VI. FINDINGS OF FACT
- The Claimant suffered a compensable job-related injury to his back on_________.
- Despite receiving initial conservative treatment and later physical therapy and epidural steroid injections, the Claimant continued to suffer severe pain in his back, mostly in the left lower extremity.
- In June 1999, the Claimant’s treating physician referred him to Dr. Geraldo Zavala, M.D. (Provider) who concluded that a myelogram was medically necessary for further investigation of the Claimant’s injury and the reasons for his continuing severe pain.
- The Provider billed the Carrier $417 for the myelogram and related services on August 16, 1999.
- The Carrier denied the Provider’s request for reimbursement on the basis that the non-emergency treatment and related services had not been preauthorized.
- The Provider filed a request for medical dispute resolution on May 1, 2000, which was received by TWCC’s MRD on May 4, 2000.
- On January 25, 2001, the MRD issued its Findings and Decision that required the Carrier to reimburse the Provider $417. This initial decision was withdrawn on February 28, 2001, and an Amended Findings and Decision was issued July 31, 2001, which reversed the initial decision and denied reimbursement to the Provider.
- On August 13, 2001, TWCC received the Provider’s request for hearing on the amended MRD decision.
- On September 11, 2001, the Commission issued a notice of hearing to be held at the State Office of Administrative Hearings (SOAH). The notice contained a statement of the time, place, and nature of the hearing, and a statement of the legal authority and jurisdiction under which the hearing was to be held. On June 24, 2002, the Commission further filed a statement of the matters asserted and reference to the relevant statutes and rules involved. The hearing convened on September 6, 2002.
- The Provider requested and obtained authorization for the myelogram procedure before it was performed on July 14 - 15, 1999.
a.On July 1, 1999, the Provider’s nurse, whose duty it is to obtain authorization for medical treatment and services from carriers, called the Carrier’s designated telephone number for authorizations, asked to speak with the adjuster handling the Claimant’s file, was put through to an adjuster and requested authorization.
b.The Carrier’s representative approved the myelogram over the telephone on July 1, 1999.
CONCLUSIONS OF LAW
- TWCC has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. § 413.031 (Vernon Supp. 2002).
- The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031 and Tex. Gov't Code Ann. ch. 2003.
- The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov't CodeAnn., ch. 2001 and 1 Tex. Admin. Code ch. 155.
- Timely appeal of the MRD’s order was filed. Tex. Admin. Code §§ 133.305(p) and 148.3.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052.
- The party seeking relief bears the burden of proving by a preponderance of the evidence that it should prevail in hearings. 28 Tex. Admin. Code §148.21(h).
- A non-emergency myelogram requires the provider to have obtained pre-authorization for the procedure, and the failure to do so precludes reimbursement for the treatment and/or services rendered. 28 Tex. Admin. Code §§ 134.600(a) and 134.600(h)(5).
- Based on the above Findings of Fact and Conclusions of Law, the Provider is entitled to reimbursement for the non-emergency myelogram performed on July 14-15, 1999.
IT IS HEREBY ORDERED that the Carrier shall reimburse the Provider for the myelogram at issue in this hearing in the amount of $417 plus interest at the rate and for the time as provided by law.
Issued the 12th day of May 2003.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- MRD’s first decision, issued January 25, 2001, found that the Carrier failed to prove it had sent a written denial of preauthorization to the Provider within twenty-four hours after notification of the requested services and ordered reimbursement in the amount of $417.↑
- TMIC’s predecessor when events occurred in this case was Texas Workers’ Compensation Insurance Fund.↑
- Labor Code Ann. § 413.014 and 28 Tex. Admin. Code (TAC) § 134.600(h)(5).↑
- 28 TAC § 134.600(c),(d), and (e).↑
- 28 TAC §§ 148.21(h) and (i).↑
- TMIC Ex. 1 at 28.↑
- December 1998 - March 1999 and July 1999 - November 2000.↑
- Carrier Ex. 2.↑
- See e.g., Carrier Ex. 3 at 34, entry on May 5, 1999.↑
- Ms. Speed subsequently rejoined the Carrier’s staff in November 2000 to the present.↑
- Carrier Ex. 3 at 34.↑
- See e.g., Carrier Ex. 3 at 34, May 5, 1999.↑