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Title: 

453-02-0247-m5

Date: 

August 29, 2002

Type: 

Retrospective Medical Necessity

453-02-0247-m5

DECISION AND ORDER

I. Introduction

Marsha Miller, D.C. (Provider) has appealed a decision of the Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD) that denied her request for reimbursement of $1,379[1] from Reliance National Insurance Co. (Carrier) for certain services (Disputed Services) that she furnished to ____Claimant).

As set out below, the Administrative Law Judge (ALJ) finds that the Provider should be reimbursed a total of $71 for two of the disputed services and nothing for the other Disputed Services. Accordingly, he orders the Carrier to reimburse the Provider $71.

II.Background

The Claimant’s compensable injury included his right knee and ankle.[2] The Provider is the Claimant’s treating doctor. From June 5 through June 29, 2000, the Provider furnished 11 one-hour exercise sessions (Exercise Services) to the Claimant, allegedly to treat his injured ankle.[3] For these services, the Provider originally sought reimbursement under Current Procedural Terminology (CPT) code 97110, which is therapeutic procedure that is provided to a patient in an individualized one-to-one setting. Under the TWCC’s Medical Fee Guideline (MFG),[4] 97110 services are reimbursed at the rate of $160 per hour.[5]

At the hearing, however, the Provider agreed that the services she provided the Claimant could instead have been billed under CPT code 97150. Those are therapeutic procedures provided to patients in groups of two or more and are billed under the MFG at $108 per hour. The Claimant is now willing to accept a total of $1,188[6] in reimbursement for the Exercise Services under CPT code 97150.[7] The Provider also seeks reimbursement of $21, under CPT code 99372, for her telephone call to a Dr. Tomco[8] (Pre-authorization Phone Call), to obtain the Carrier’s pre-authorization of the Exercise Services.[9]

The Provider also reviewed three reports by other doctors who examined and reached conclusions concerning the Claimant’s injury, treatment, and progress. For reviewing each of those three reports, the Provider seeks $60, a total of $180, under CPT code 99358, which is prolonged evaluation and management service before or after direct (face‑to‑face) patient care.[10] The Provider seeks an additional $50, under CPT code 99455-RP, for reviewing one of those reports because it was a TWCC 69, maximum medical improvement (MMI) report.[11]

The Carrier does not dispute that it must reimburse the Provider $216 for her office or other outpatient visits between June 5, and June 29, 2000, with the Claimant for the evaluation and management of the Claimant, which is CPT code 99211.[12] MRD ordered the Carrier to pay the provider that amount, and the Carrier did not appeal that ruling. As of the day of hearing, however, the Provider contended that the Carrier had not paid her.

III. Disputed Issues

In its explanation of benefits (EOBs), the Carrier denied the Provider reimbursement for the Exercise Services and Pre-authorization Phone Call, claiming they were duplicative.[13] It also denied the reimbursement for the review of the other doctors’ reports, claiming two were non-compensable and two were duplicative. The Provider then filed for dispute resolution. The Carrier is in receivership, and filed no response to the Provider’s request for dispute resolution. On its own, MRD found that the documentation that the Provider submitted did not support any of the requested reimbursement and denied the Claimant’s request on that basis.[14]

At the hearing, as already indicated, the Provider agreed to recode and accept a smaller reimbursement for the Exercise Services than it had originally sought from the Carrier. The Carrier, appearing at the hearing through the receiver’s attorney, objected that the Provider could not change a code at hearing. The Carrier then went on to argue new bases for denying reimbursement that it had not raised in its EOBs, claiming the Exercise Services were not medically necessary, all of the report reviews were non-compensable, and all were insufficiently documented, as MRD had found. The Provider objects to the Carrier being allowed to raise these additional grounds for denial at hearing.

At the beginning of the hearing, the Carrier questioned whether the Exercise Services had been pre-authorized,[15] yet in closing at the end of the hearing, the Carrier’s attorney repeatedly stated that there was “no question” that the Exercise Services had been pre-authorized.”[16] Based on the Carrier’s own stipulation, the ALJ concludes that the Exercise Services were pre-authorized.

Given all of the above, the only disputed issues are:

  • Were the Exercise Services provided to the Claimant one-to-one or in a group;
  • May the Provider re-code the Exercise Services at the hearing stage and accept a smaller reimbursement than she originally sought;
  • If the Provider may re-code, may the Carrier then raise new objections to payment at the hearing stage;
  • Were the Exercise Services reasonably medically necessary and adequately documented;
  • Was the Pre-authorization Phone Call adequately documented;
  • Did the Provider adequately document her review of the MMI Report; and
  • Is the Provider entitled to reimbursement for her review of other doctors’ reports concerning the Claimant?

IV. Exercise Services

A. One-to-one or Group Exercise Services

The Provider testified that the Claimant, at his initial Exercise Service session, was shown how to perform the exercises. She conceded that, thereafter, he came to each session and exercised on his own with little or no additional instruction. She also agreed that after the initial instructions she had little one-to-one contact with the Claimant while he exercised. Sometimes other patients were exercising while the Claimant was, and sometime the Claimant was the only one exercising.[17]

Based on that evidence, the ALJ finds that the Exercise Services were not one-to-one services reimbursable under code 97110 at the rate of $160 per hour, which the Provider originally sought. Instead, he finds that they were provided to the Claimant as part of a group, and the Provider should have coded them as 97150 and billed $108 per hour for them.

B. May the Provider Re-code a Service at the Hearing

The Carrier contends that the Provider may not change the code for the Exercise Services at the hearing, which could well mean that the Carrier would recover nothing. The ALJ disagrees.

It is true that carriers and their agents are prohibited from changing a code on a medical bill submitted to them for reimbursement or reimbursing less than the code warrants unless the carrier contacts the sender of the bill and the sender agrees to the change.[18] However, if the sender of the medical bill agrees to a specific change in a billing code, the carrier must change the code on the medical bill.[19]

Yet somehow, now that this dispute has moved to the SOAH hearing process, the Carrier argues that the Provider may not agree to change a code that it concedes may have been incorrect.

The Carrier points to no law or guideline that supports that view. “A provider . . . “is entitled to a review of a medical service provided . . . if [the] provider is denied payment . . . for the medical service rendered.”[20] (Emphasis added.) Thus, it is the underlying service, not the CPT code, on which a provider is entitled to a review. Does a provider lose that right to a review of the underlying service just because it initially mis-coded the service? Alternatively, is a provider required to “go back to go” and start the process over with a re-coded reimbursement request at the expense of time and perhaps the risk of having the re-coded request being too late? The ALJ finds that the answer to both questions is no. Instead, the ALJ finds that the Provider may correct an incorrect CPT code and seek a lower reimbursement even at the hearing stage.

C. If the Provider Re-codes, May the Carrier Raise New Payment Objections

That raises another issue: If the a provider re-codes at hearing, may a carrier interpose new objections to reimbursement at hearing? Several SOAH ALJ’s have held that an objection to reimbursement that was never raised in a carrier’s EOB, hence not raised before MRD, is beyond the scope of the subsequent SOAH proceeding.[21] But would that conclusion apply even if the provider re-codes at hearing? The ALJ concludes that it would not.

To prohibit the raising of new objections, would place the Carrier in a procedural box: Its original objections to the original code would be moot, yet it could not object to the new code. A carrier is required to retrospectively review all complete medical bills and pay for or deny payment for medical benefits in accordance with the Act, rules, and the appropriate Commission fee and treatment guidelines.[22] The Carrier cannot comply with that requirement until it knows what the medical bill is, and it cannot know that until after the re-coding, if any, occurs at the hearing. The

ALJ concludes that the Carrier is not boxed in and may raise new reasons for denial when the Provider through re-coding at the hearing alters the nature of the dispute.

D. Documentation and Necessity

The Carrier argues that the Provider had failed to provide required documentation for the Exercise Services or to show that they were needed. The ALJ agrees.

Regardless how the Exercise Services are coded, they must meet certain criteria to qualify for reimbursement.[23] Among them, is a requirement that a provider have a written treatment plan.[24] The treatment plan must indicate the type, frequency, and duration of and the expected clinical response to the treatment and specific re-evaluation time frames.

There is no evidence that the Provider ever prepared such an initial treatment plan for the Claimant. To the contrary, the evidence tends to show that there was no initial treatment plan. The Provider’s own notes summarizing her Exercise Services preauthorization conversation with Dr. Tomco indicate that Dr. Tomco stated that he had “no medicals,” apparently a reference to the fact that he had no treatment plan concerning the Claimant.[25]

It is true that the Provider, when seeking reimbursement, furnished her subjective objective assessment plan (SOAP) notes. They indicate that the Claimant came to the Provider’s facility to stretch “the ankle,” describe the therapy provided on each day, and list that day’s goals. For examples, the exercises were to maintain strength, preventing adhesions, control the alignment of new collagen material, develop body smartness, and improve the Claimant’s ability to deploy his body accurately.[26] The Provider also included exercise notes for each therapy session, documenting, through exercise diagrams and a log, the exercises that the Claimant performed on each treatment date.[27] But these after-fact-notes do not constitute an “initial” plan, or a plan or any kind.

Another requirement for reimbursement is that the treatment be specific to the injury and provide for the potential improvement of the patient’s condition;[28] in short, medically necessary. The SOAP notes and diagram show that the exercises were specific to the ankle, assuming that “the ankle” meant the Claimant’s injured right ankle, but the notes do specifically explain why they might have been necessary. Developing “body smartness” and improving “the ability to deploy the body accurately” are so vague that they could mean almost anything.

The ALJ concludes that the Carrier had no initial treatment plan for the Exercise Services, and the ALJ cannot conclude that those services had the potential to improve the Claimant’s condition. Accordingly, the ALJ finds that the Carrier’s claim for reimbursement for the Exercise Services should be denied.

V. Pre-authorization Phone Call

The Provider seeks reimbursement of $21 under CPT code 99372 for her telephone call to a Dr. Tomco to obtain pre-authorization for the Exercise Services. As already indicated, the Carrier eventually agreed that the Exercise Services were pre-authorized.

MRD rejected the requested reimbursement, finding that it was inadequately documented. The MFG requires documentation of procedure (DOP) to obtain reimbursement for telephone calls billed under 99372.[29] The DOP shall include pertinent information about the procedure including:

* * *

(2) Nature, extent, and need (diagnosis and rationale) for the service or procedure;

(3) Time required to perform the service or procedure; [and]

* * *

(6) Other information as necessary.

* * *

The Carrier questions the sufficiency of the Provider’s documentation of that call. The ALJ finds that the Provider’s documentation was sufficient. While not overwhelming, the Provider’s one page note indicates that she contacted Dr. Tomco to discuss the Claimant’s left ankle and that Dr. Tomco stated he would approve three to four weeks of therapy.[30] Especially given the Carrier’s agreement the Exercise Sessions were pre-authorized, the ALJ finds that the Provider should be reimbursed $21 for this Pre-authorization Phone Call.

VI. Review of Other Doctors’ Reports

The Provider also seeks $50 for reviewing the TWCC-69, maximum medical improvement (MMI) report,[31] regarding the Claimant, prepared by Provider-referred doctor, Gregg Diamond, M.D., which she billed under CPT code 99455-RP. The MFG quite specifically requires the Provider to review such an MMI report and to bill it under code 99455-RP, for which review it states that the provider will be reimbursed $50.[32] The Carrier’s only objection is that the Provider’s review was inadequately documented. The documentation in evidence shows that the Provider stamped the report to indicate that she had read it and on June 26, 2000, signed a form to indicate that she disagreed with Dr. Diamond’s conclusion that the claimant had reached MMI on June 20, 2000.[33] The ALJ fails to see what more documentation would have been appropriate. He finds that the Provider should be reimbursed $50 for reviewing the MMI report.

The Provider billed another $60, under code 99358, which is prolonged evaluation and management service before or after direct (face‑to‑face) patient care, for reading that same report by Dr. Diamond.[34] The Provider also reviewed two other reports: one prepared by TWCC-designated doctor Cameron P. Laboret, D.C.[35] and one by carrier-selected doctor Phillip Osborne, M.D.[36] for reviewing each of those two reports, she also billed the Carrier $60 under CPT code 99358.[37] Once again, the Carrier stamped the reports to indicate that she had read them.

The Carrier objects that the Provider should not be compensated twice for reading Dr. Diamond’s MMI report. It also objects that merely reading these reports was not prolonged evaluation or management, billable under 99358. It points out that a health care provider is only entitled to recover for coordination of care “outside the normal practice.”[38] The Carrier argues that

reading the reports lies within the normal practice. The ALJ agrees.

As an example of something within the normal practice, the MFG mentions a trivial matter: calling a pharmacy with a prescription. While reviewing the reports of the other physicians is a bit more than that, it is not much more in these circumstances. Moreover, those reports can not be said to be extensive records or tests, which the MFG gives as an example of a 99358 activity. Furthermore, the ALJ sees absolutely no basis for allowing the Provider to be reimbursed twice for reviewing Dr. Diamond’s report. The ALJ finds that the provider should not be reimbursed for reviewing the reports of Doctors Diamond, Laboret, and Osborne.

VII.Summary

As set out above, the ALJ finds that the Provider should be reimbursed $50 for reviewing the MMI report, $21 for the Pre-authorization Phone Call, and nothing for the other Disputed Services. Accordingly, he orders the Carrier to reimburse the Provider $71.

VIII.Findings of Fact

  1. The Claimant sustained a work-related injury to his right knee and ankle on _________, while his employer was ____________ and the Carrier was its workers’ compensation insurance carrier.
  2. The Provider is the Claimant’s treating doctor.
  3. The Provider furnished the Claimant several services from June 1, 2000, through August 29, 2000 (Disputed Services).
  4. The Provider sought reimbursement for the Disputed Services from the Carrier within one year of providing them.
  5. The Carrier denied the requested reimbursement.
  6. On April 5, 2001, the Provider filed a request for medical dispute resolution with the TWCC.
  7. MRD reviewed the dispute, found that the documentation that the Provider submitted did not support any of the requested reimbursement for the Disputed Services and denied the Claimant’s request on that basis.
  8. The Provider appealed the MRD’s decision to the State Office of Administrative Hearings SOAH).
  9. On September 26, 2001, notice of an August 12, 2002, hearing in this case was mailed to the Carrier and the Provider.
  10. On August 12, 2002, William G. Newchurch, a SOAH Administrative Law Judge (ALJ) held a hearing on the Carrier’s appeal at the William P. Clements Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas, Austin, Texas. The record closed on that date.
  11. The Provider attended the hearing by telephone, and the Carrier, represented by attorney Steven M. Tipton, attended the hearing in person.
  12. From June 5 through June 29, 2000, the Provider furnished 11 one-hour exercise sessions (Exercise Services) to the Claimant.
  13. The Exercise Services were pre-authorized by the Carrier to treat the compensable injured ankle.
  14. At his initial Exercise Service session, the Claimant was shown how to perform the exercises.
  15. Thereafter, the Claimant came to each session and exercised on his own with little or no additional instruction.
  16. After the initial instructions, the Provider had little one-to-one contact with the Claimant while he exercised.
  17. Sometimes other patients were exercising while the Claimant was, and sometime the Claimant was the only one exercising.
  18. The Provider originally sought reimbursement under Current Procedural Terminology (CPT) code 97110, which is therapeutic procedure that is provided to a patient in an individualized one-to-one setting, for the Exercise Services.
  19. The Carrier denied the Provider reimbursement for the Exercise Services, claiming they were duplicative.
  20. At the hearing, the Provider agreed to re-code the Exercise Services as CPT code 97150, which are therapeutic procedures provided to patients in groups of two or more, and to accept $1,188 in reimbursement.
  21. The Provider contacted Dr. Tomco by phone (Pre-authorization Phone Call) to obtain pre-authorization from the Carrier for the Exercise Services, discussed the Claimant’s left ankle, and Dr. Tomco approved three to four weeks of therapy.
  22. The Provider sought reimbursement of $21 under CPT code 99372 for that Pre-authorization Phone Call.
  23. The Carrier denied the Provider reimbursement for the Pre-authorization Phone Call, claiming it was duplicative.
  24. The Provider reviewed three reports by other doctors who examined and reached conclusions concerning the Claimant’s injury, treatment, and progress.
  25. The Provider stamped these three report by other doctors to indicate that she had read each of them.
  26. The Provider’s review of the three report by other doctors was not extensive and was within the normal practice of health care.
  27. For reviewing each of those three reports, the Provider sought reimbursement of $60, a total of $180, under CPT code 99358, which is prolonged evaluation and management service before or after direct (face‑to‑face) patient care.
  28. The Provider also sought an additional $50 in reimbursement, under CPT code 99455-RP, for reviewing one of those reports by another doctor because it was a TWCC 69, maximum medical improvement (MMI), report.
  29. On June 26, 2000, the Provider signed a form indicating that she disagreed with the other doctor’s conclusion that the Claimant had reached MMI on June 20, 2000.
  30. The Carrier denied the Provider reimbursement for the reviewing the three reports by other doctors, claiming two were non-compensable and two were duplicative.

IX. Conclusions of Law

  1. 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. Labor Code Ann. §§ 402.073(b) and 413.031(d) (West 2002) and Tex. Gov’t Code Ann. ch. 2003. (West 2001).
  2. Adequate and timely notice of the hearing was provided in accordance with Tex Gov’t. Code Ann. §§ 2001.051 and 2001.052 (West 2001).
  3. As the party appealing the MRD’s decision, the Provider has the burden of proof in this case pursuant to 28 Tex. Admin. Code (TAC) §148.21(h) (2002).
  4. Under Tex. Labor Code §408.021 (a), 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.
  5. If the sender of a medical bill agrees to a specific change in a billing code, the carrier must change the code on the medical bill. 28 TAC §133.301(b)(1).
  6. A provider . . . “is entitled to a review of a medical service provided . . . if [the] provider is denied payment . . . for the medical service rendered.” Labor Code § 413.031(a)(1).
  7. Based on the above Conclusions of Law, a provider is entitled to a review of the underlying service, not just the CPT code, when the carrier denies reimbursement.
  8. Based on the above Findings of Fact and Conclusions of Law, the Provider may be allowed to correct an incorrect CPT code and seek a lower reimbursement even at the hearing stage.
  9. A carrier is required to retrospectively review all complete medical bills and pay for or deny payment for medical benefits in accordance with the Act, rules, and the appropriate Commission fee and treatment guidelines. 28 TAC § 133.301(a).
  10. Based on the above Conclusions of Law, a carrier cannot comply with that review requirement until it knows what the medical bill is, and it cannot know that until after the re-coding, if any, occurs at the hearing.
  11. Based on the above Conclusions of Law, a carrier may raise new reasons for denial when a provider through re-coding at the hearing alters the nature of the dispute.
  12. Under the TWCC’s Medical Fee Guideline (MFG), 97110 services are reimbursed at the rate of $160 per hour. Medical Fee Guideline 1996; adopted by reference at 28 TAC § 134.201(a).
  13. Under the TWCC’s MFG, 97150 services are reimbursed at the rate of $108 per hour.
  14. A provider is required to prepare and submit a written initial treatment plan to the carrier to qualify 97110 or 97150 services for eventual reimbursement. The treatment plan must indicate the type, frequency, and duration of and the expected clinical response to the treatment and specific re-evaluation time frames. MFG, Medicine Ground Rule I. A and I.A.3.
  15. The above Findings of Fact do not show that the Provider prepared an initial treatment plan for the Claimant regarding the Exercise Services.
  16. To qualify for reimbursement, 97110 or 97150 services must be specific to the injury and provide for the potential improvement of the patient’s condition. MFG, Medicine Ground Rules, I.A.2.
  17. The above Findings of Fact do not show that the Exercise Services had the potential to improve the Claimant’s condition.
  18. Based on the above Findings of Fact and Conclusions of Law, the Carrier’s claim for reimbursement for the Exercise Services should be denied.
  19. The MFG requires documentation of procedure (DOP) to obtain reimbursement for telephone calls billed under 99372. MFG, Case Management, Telephone Calls.
  20. Based on the above Findings of Fact and Conclusions of Law, the Provider adequately documented the Pre-authorization Phone Call.
  21. Based on the above Findings of Fact and Conclusions of Law, the Provider should be reimbursed $21 for the Pre-authorization Phone Call.
  22. The MFG requires a treating doctor to review an MMI report prepared by another doctor and provides that the treating doctor will be reimbursed $50, under code 99455-RP for that review. MFG, Section XII. D. 2.
  23. Based on the above Findings of Fact and Conclusions of Law, the Provider should be reimbursed $50 for reviewing the MMI report.
  24. A health care provider is only entitled to recover for coordination of care, CPT code 99358, that lies “outside the normal practice.”
  25. Based on the above Findings of Fact and Conclusions of Law, the Provider should not be reimbursed, beyond the above-discussed MMI- report reimbursement, for reviewing the three doctors reports.
  26. Based on the above Findings of Fact and Conclusions of Law, the Provider should not be reimbursed for the Disputed Service other than reviewing the MMI report and the Pre-authorization Phone Call.

ORDER

The Carrier shall reimburse the Provider $50 for reviewing the MMI report, $21 for the pre-authorization Phone Call, and nothing for the other Disputed Services.

Signed August 29, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

WILLIAM G. NEWCHURCH
Administrative Law Judge

  1. As amended at the hearing. Tape 2, side 1.↑
  2. Tape 1, side 1.↑
  3. Tape 1, side 2; Ex. 1, pp. 10 et seq.↑
  4. Medical Fee Guideline 1996; adopted by reference at 28 TAC § 134.201(a).↑
  5. Ex. 1, p. 9.↑
  6. Eleven sessions times $108 per hour equals $1188.↑
  7. Tape 1, side 1.↑
  8. This doctor was not identified except by his last name.↑
  9. Tape, side 1.↑
  10. Ex. 1, pp. 30 and 41.↑
  11. Ex. 1, pp. 34 et seq.↑
  12. Tape 1, side 1.↑
  13. Ex. 1, pp. 28 et seq. and 105 et seq.↑
  14. Ex. 1, p. 3.↑
  15. Tape, side 1.↑
  16. Tape, side 2.↑
  17. Tape 1, side 1.↑
  18. 28 TAC § 133.301(b).↑
  19. 28 TAC §133.301(b)(1).↑
  20. Labor Code §413.031(a)(1).↑
  21. See SOAH Docket No. 453‑99‑2021.M5 (July 20, 2000, ALJ Rusch); SOAH Docket No. 453‑99‑3399.M5 (May 18, 2000, ALJ Pacey); SOAH Docket No. 453‑96‑1446.M4 (Nov. 12, 1996, ALJ Corbitt); SOAH Docket No. 453‑97‑0973.M4 (May 14, 1998, ALJ Card); and SOAH Docket No. 453-00-1570 (Oct. 20, 2000, ALJ Smith).↑
  22. 28 TAC § 133.301(a).↑
  23. MFG, Medicine Ground Rule I. A.↑
  24. MFG, Medicine Ground Rules, I.A.3.↑
  25. Ex. 1, p. 9.↑
  26. Ex. 1, pp.12, 19, and 71 et seq.↑
  27. Ex. 1, pp. 71 et seq.↑
  28. MFG, Medicine Ground Rules, I.A.2.↑
  29. MFG, p. 28.↑
  30. Ex. 1, p. 9.↑
  31. Ex. 1, pp. 34 et seq.↑
  32. MFG, Section XII D 2.↑
  33. Ex. 1, pp. 33 and 34; Tape, side 2.↑
  34. Ex. 1, pp. 30.↑
  35. Ex. 1,p. 44 et seq.↑
  36. Ex. 1, p. 50 et seq.↑
  37. Ex. 1, p. 41.↑
  38. MFG, Section V, Coordination of Care.↑