DECISION AND ORDER
The Respondent Curtis Adams, D.C., sought preauthorization under two CPT codes from the Petitioner St. Paul Fire & Marine Insurance Company for physical therapy for the patient____. The Petitioner gave partial approval, approving treatment under one of the CPT codes, but not the other. The Respondent made a request for medical dispute resolution from the Medical Review Division (the Division) of the Texas Workers' Compensation Commission (the Commission), claiming that all of the therapy should be preauthorized. The Division agreed, concluding in its Findings and Decision that the proposed physical therapy should be preauthorized. The Petitioner requested a hearing to challenge the Division’s findings.
On January 30, 2002, Administrative Law Judge (ALJ) Cathleen Parsley convened the hearing at the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas. The Petitioner appeared through Ronald M. Johnson, its counsel. The Respondent was represented by his office manager, Rick Muniz. The Commission is not a party to this proceeding, and the staff of the Commission (the Staff) did not appear. The ALJ closed the hearing on January 30, 2002.
The ALJ finds that the treatment under CPT code 97530 should not be preauthorized.
A. Background and Parties’ Arguments. ____ suffered a work-related injury to her lower and middle back on __________. She was diagnosed with lumbar radiculitis, lumbar disc syndrome without myelopathy, and thoracic segmental dysfunction. The Respondent was her treating doctor. In May 2001, the Respondent requested preauthorization for kinetic activity three times a week for four weeks under CPT codes 97110 and 97530. Both codes were included on the request for preauthorization, and the request did not specify what precisely the Respondent was requesting under each code. The medicine ground rules of the Commission’s Medical Fee Guideline state that CPT Code 97110 is the code for therapeutic procedures, which are exercises used to develop strength and endurance, range of motion, and flexibility. CPT Code 97530 is for therapeutic activities, which involve direct, one-on-one patient contact by the health care provider with the use of dynamic activities to improve functional performance.
The Petitioner approved treatment at three times a week for four weeks, with four units of treatment per visit, under CPT code 97110, but did not preauthorize treatment under CPT Code 97530. According to David Dolezal, D.C., who reviewed the preauthorization request for the Petitioner at the time the Respondent made it and who testified at the hearing, one hour of exercise per visit seemed adequate as a trial to see if____ could handle more activity; she had only recently been moved from passive to active care, and while he thought she would benefit from some moderate exercise, he did not know if she was ready for more than that. Also, as the preauthorization request contained both CPT codes without differentiation, Dr. Dolezal could not determine the Respondent’s treatment goals from the preauthorization request. Therefore, he found that the treatment under CPT code 97110 was reasonable and necessary and should be preauthorized, but not the treatment under code 97530.
The Respondent apparently delivered the care preauthorized by the Petitioner under CPT code 97110, but he challenged the partial grant of preauthorization, contending in his request for medical dispute resolution that____ needed to progress to an active rehabilitation program including kinetic activities and therapeutic procedures. Also, the Respondent objected to the partial approval of the preauthorization request. In his view, the Commission’s rule regarding preauthorization states only that a request shall be approved or denied, but does not permit a partial approval.
The Petitioner contended that the Respondent did not provide any of the objective documentation demonstrating that therapy should be continued, as required by the particular ground rule of the Spine Treatment Guidelines (STG). The Petitioner also cited the STG’s specific provisions delineating the sorts of objective documentation required from the provider that will illustrate compliance and substantive and continued improvement over time. In its view, the Respondent provided none of that.
After the issuance of the Division’s findings in September 2001,____ underwent a required medical evaluation in October 2001 by Bernie L. McCaskill, M.D. Dr. McCaskill opined that T.S.’s “physical presentation is grossly non-physiologic.” He concluded she had reached maximum medical improvement (MMI) with a 8% whole body impairment resulting from the March 2001 injury. In the Respondent’s view, ____ reaching MMI was an indication that she did improve. The Petitioner countered by saying that she reached MMI without the additional therapy.
B. Analysis. This analysis will address very briefly the Respondent’s argument regarding the partial authorization of treatment before proceeding to the issue about whether code 97530 should be preauthorized. On both counts, however, the ALJ finds against the Respondent.
(i) Partial authorization. Although the evidence could have been clearer on this point, it seems that the Respondent rendered to _____ the treatment preauthorized under CPT code 97110. A report to the Respondent dated June 12, 2001, from Francisco Batlle, M.D., to whom the Respondent had referred ____ for a consultation, states that “[____] is now status post short course of physical therapy....” The preauthorization approval authorizes a starting date for the treatment of May 17, 2001, and an ending date of June 15, 2001. When these dates are taken in conjunction with Dr. Batlle’s report, it seems likely that the physical therapy he refers to is the therapy authorized under code 97110. In addition, in their closing arguments, the representatives for the parties stated ____received the preauthorized treatment.
As the treatment was provided, it seems to the ALJ that if the Respondent’s argument that partial preauthorizations are not permitted is correct, he has waived the argument. He accepted the partial preauthorization and gave the preauthorized treatment to the patient. If the Respondent truly believed that the statute and rules require an “all or nothing” preauthorization, he should not have acted under the partial preauthorization and preserved his argument. As it is, he cannot be heard to contend that partial preauthorizations are not permitted when he accepted the benefit of such a preauthorization for his patient.
Moreover, the Respondent did not elaborate on his argument with any evidence or citations to legal authority in support of his theory. Therefore, the ALJ is unable to make any conclusions about the legal correctness of the argument.
(ii) Preauthorization for CPT code 97530. The only issue to be decided in this case is the propriety of preauthorization for CPT code 97530. In short, preauthorization is not warranted.
The ALJ agrees with the Petitioner that the record does not contain documentation showing objectively ____’s compliance with treatment, and the evidence is mixed and very confusing on the question of whether it reflects improvement over time, as required by the STG. On the latter question, Dr. Batlle’s report indicates that the treatment given to her did not have a salutary effect: “She is now status post short course of physical therapy with no significant improvement in her symptomatology and describes her pain level as an 8/10 on a visual analog scale. She describes worsening symtomatology after prolonged sitting, standing, coughing, sneezing or Valsalva maneuver.” However, the report of a progress examination presumably conducted by the Respondent characterizes ____’s improvement in a number of categories as ranging from “very slight” to “much improved.” The confusion is engendered by the date on the progress examination. The report of its results is dated May 17, 2001, for a progress examination conducted May 16, 2001. The report of the Respondent’s initial examination of____ is dated May 16, 2001. It does not seem logical that a progress examination would be conducted the same day as the initial examination, but the Respondent did not produce any evidence explaining the discrepancy. If it is assumed that the dates of these examinations and reports are correct, then ____ showed improvement, but not over time, as contemplated by the STG.
Even if the Respondent were to be given the benefit of the doubt about the progress report and the improvement ____ showed, and even if one accepts as some evidence that treatment should continue Dr. Batlle’s recommendation that ____ would benefit from continued “chiropractic and physical therapy for symptomatic relief,” the evidence is completely lacking on the bearing, if any, the non-physiologic element to ___’s condition identified by Dr. McCaskill has on the proposed physical therapy, and how or if the physical therapy would improve or be affected by that element.
Also, the Division’s Findings and Decision refers to an evaluation report by the Respondent dated June 16, 2001. There is no such report in the record before the ALJ.
Finally, the ALJ does not find persuasive another unsigned and undated letter from the Respondent claiming that the proposed treatment is medically necessary. The letter is apparently a form letter intended to cover any number of situations and to apply to any number of patients. ____’s name is written in the blank as the patient; that is the only feature distinguishing this letter from any other such letter submitted by the Respondent for any other patient for whom he is requesting physical therapy. No doubt busy providers need to find time-saving ways to explain medical necessity, but this one-size-fits-all letter is woefully insufficient, especially when it is not supported by any testimony or evidence from the provider himself explaining why this specific patient needs this specific care.
All told, the evidence is absent or manifestly unclear, and the Respondent offered no testimony or argument explaining or clarifying any of it.
C. Conclusion. In the end, this case turned on the lack of evidence from the Respondent to support, clarify, or explain his position. The Respondent and Dr. Batlle actually examined and treated the patient, and their opinions and recommendations about what she needs are entitled to some credence. Moreover, the ALJ hastens to add it was not the Respondent’s burden to prove the case; it was the Petitioner’s. However, once the Petitioner presented its case, the Respondent had the opportunity to offer evidence in support of his positions, and he wholly failed to avail himself of that opportunity. He offered no evidence explaining and clarifying critical and dispositive issues. Simply allowing this record to, in essence, speak for itself was not enough; in fact, it was highly damaging to the Respondent’s case. The greater weight of the evidence demonstrates that preauthorization for therapeutic activities under CPT code 97530 should not be granted.
III. Findings of Fact
- ____ suffered a work-related injury to her lower and middle back on____________. She was diagnosed with lumbar radiculitis, lumbar disc syndrome without myelopathy, and thoracic segmental dysfunction.
- The Respondent Curtis Adams, D.C., was ___’s treating doctor.
- In May 2001, the Respondent requested preauthorization for kinetic activity three times a week for four weeks, under CPT codes 97110 and 97530.
- Both codes were included on the request for preauthorization, and the request did not specify what precisely the Respondent was requesting under each code.
- CPT Code 97110 is the code for therapeutic procedures, which are exercises used to develop strength and endurance, range of motion, and flexibility.
- CPT Code 97530 is for therapeutic activities, which involve direct, one-on-one patient contact by the health care provider with the use of dynamic activities to improve functional performance.
- The Petitioner St. Paul Fire & Marine Insurance Company approved treatment at three times a week for four weeks, with four units of treatment per visit (equal to one hour), under CPT code 97110, but did not preauthorize treatment under CPT Code 97530.
- One hour of exercise per session was adequate as a trial to see if ____ could handle more activity; she had only recently been moved from passive to active care.
- The Respondent delivered the care preauthorized by the Petitioner under CPT code 97110.
- On July 9, 2001, the Respondent filed with the Texas Workers’ Compensation Commission (the Commission) a request for medical dispute resolution challenging the partial grant of preauthorization and requesting preauthorization for an active rehabilitation program including kinetic activities and therapeutic procedures.
- On September 18, 2001, the Medical Review Division of the Commission issued Findings and a Decision preauthorizing physical therapy at three times a week for four weeks under CPT Code 97530 for ____.
- On September 26, 2001, the Petitioner requested an administrative hearing on the Medical Review Division’s order preauthorizing physical therapy as described in the previous finding.
- On November 5, 2001, the staff of the Commission issued a notice of hearing apprising the parties of the administrative hearing requested by the Petitioner.
- The hearing convened on January 30, 2002. The Petitioner and the Respondent appeared and participated in the hearing. The Commission was not a party to this proceeding, and its staff did not participate in the hearing.
- There is no evidence objectively showing ____’s compliance with treatment.
- The evidence does not clearly demonstrate that ____’s condition improved over time.
- T.S.’s condition has a non-physiologic component.
- There is no evidence demonstrating the bearing the non-physiologic element to ___’s condition has on the proposed physical therapy, and how or if the physical therapy would improve or be affected by the non-physiologic element.
- The unsigned and undated form letter the Respondent used to claim that the proposed treatment is medically necessary for____ was insufficient to establish medical necessity, especially absent specific testimony or evidence demonstrating the need for specific treatment for the specific patient.
IV. Conclusions of Law
- The Texas Workers’ Compensation Commission (the Commission)has jurisdiction over the issue presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. §413.031.
- The State Office of Administrative Hearings has jurisdiction over all matters related to the hearing in this case, including the issuance of this decision and order, pursuant to Tex. Gov’t Code Ann.ch. 2003 and pursuant to §413.031(d) of the Act.
- Notice of the hearing was proper and timely, as required by the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001.
- By providing treatment to____ under the grant of partial preauthorization for CPT code 97110, the Respondent waived his claim that partial preauthorizations are not permitted by 28 Tex. Admin. Code §134.600(e).
- The Respondent did not adequately document ___’s compliance with treatment, nor did he adequately document her substantive and continued improvement that would justify the continuation of therapy, as required by 28 Tex. Admin. Code §134.1001(e)(2)(D).
- The Respondent did not adequately demonstrate the necessity of treatment under CPT code 97530 in light of the non-physiologic component to ____’s condition.
- The Respondent’s request for preauthorization under CPT code 97530 for therapeutic activities at three times a week for four weeks for____ should be denied.
IT IS, THEREFORE, ORDERED that the request of Curtis Adams, D.C. for preauthorization under CPT code 97530 for therapeutic activities at three times a week for four weeks for _____ is denied.
Signed March 8, 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- Exh. 3, p. 12.↑
- 28 Tex. Admin. Code §134.600(e).↑
- 28 Tex. Admin. Code §134.1001(e)(2)(D).↑
- 28 Tex. Admin. Code §134.1001(e)(3)(C).↑
- Exh. 1.↑
- Exh. 3, p. 32.↑
- Exh. 3, p. 49.↑
- Exh. 3, p. 32.↑
- The progress report referred to is not signed, although it does bear the Respondent’s signature block. (Exh. 3, p.20.)↑
- Exh. 3, pp. 14.↑
- Exh. 3, p. 21.↑
- Exh. 3, p. 34.↑
- Exh. 3, p. 13.↑