DECISION AND ORDER
Lemmonwood Chiropractic Center, PC (Lemmonwood) appealed a Texas Workers' Compensation Commission (Commission) Medical Review Division (MRD) decision that the Insurance Company of the State of Pennsylvania (the Carrier) is not required to pay for services Lemmonwood provided to an injured worker. The Carrier argued that chiropractic services were not reasonable and necessary for the type of injury. The MRD concluded that the treatments were not sufficiently documented to justify payment. Lemmonwood argued that the services should be paid because the Carrier did not sufficiently explain its reason for denying payment and the services were not really treatments in any case. The ALJ concludes that the Carrier should pay for the services.
I.JURISDICTION & HEARING
As there were no challenges to notice or jurisdiction, those matters are stated in the findings of fact and conclusions of law without further discussion here.
The hearing was held on January 15, 2002, before James W. Norman, Administrative Law Judge, at the State Office of Administrative Hearings (SOAH) hearing facility, Suite 1100, Stephen F. Austin Building, Austin, Texas. Lemmonwood appeared and was represented by Annette Hall, claims analyst. The Carrier appeared and was represented by its counsel, Rebecca Strandwitz. The MRD did not appear.
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. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Labor Code Ann. §408.021. "Health care" includes "all reasonable and necessary medical . . . services." Tex. Labor Code Ann. § 401.011(19).
The Claimant, was injured on____________, while working for_________, when he fell off a ladder onto his head. He did not lose consciousness. He received sutures to his head wound, but was not admitted to the hospital. Subsequently, he had headaches, depression, and poor sleeping patterns. Notes from his treating doctor, Lemmonwood chiropractor Gregory Davidovich, D.C., said he complained of headaches and neck pain and at times other pain radiating into his upper right extremity and right arm numbness.
It appears undisputed that the amount in controversy is $624, consisting of 13 services from June 15, 2000, through February 7, 2001, at a charge of $48 per visit.
Lemmonwood filed claims with the Carrier from June 27, 2000, through February 14, 2001, which the Carrier denied with the statement, “Unnecessary Medical Treatment or Service.” Lemmonwood requested medical dispute resolution on May 15, 2001.
On September 24, 2001, MRD issued its order stating: the claimant was injured on ___________twelve weeks before the service; according to the Commission adopted Spine Treatment Guideline (Guideline), the Claimant should be classified in the intermediate level of care; the provider’s office notes do not meet the documentation requirements of § (e)(3)(B) of the Guideline; and because of the lack of documentation, medical necessity cannot be determined and no reimbursement can be recommended Disputed Issues
Lemmonwood representative Annette Hall testified and presented two arguments. The first was that Dr. Davidovich saw the Claimant for follow-up office visits to monitor his condition rather than actually providing treatments. This assertion appears to be in response to the Carrier’s denial of the claim because of “unnecessary treatment or service.” The argument might also have addressed MRD’s conclusion that the doctor’s office notes did not identify the “treatment rendered.” At a later point in her testimony, after the Carrier argued that payment was not warranted because Lemmonwood admitted there was no treatment, Ms. Hall said as far as she knows, no treatment was provided-she said her job involves collections; she is not a medical doctor.
Lemmonwood’s second argument was the Carrier should be ordered to pay because it did not adequately support its denial with relevant documentation. Ms. Hall testified she spoke to the Carrier’s adjuster, Nanette Smith, who told her the claim was denied on the basis of a peer review. She said she asked Ms. Smith for the peer review, but did not receive it. She later spoke with Ms. Smith’s manager, Wayne Hawthorne, and also asked him for the peer review, but she never got it. She argued if the Carrier denies a claim, it must submit all documentation relevant to the denial. She contended if it does not do so, it is liable for the claim. She acknowledged having now received the peer review, but said she got it only after the case went to medical dispute resolution.
Documentary evidence shows Dr. Davidovich diagnosed the Claimant’s condition as “post concussion syndrome.” He said his treatment included chiropractic care and coordinating care with other providers. He worked to obtain the Carrier’s authorization for a variety of treatments, including a multi-disciplinary chronic pain management program. The treatments he requested included cervical spine rehabilitation exercise, a neurology consultation, work conditioning, work hardening, and physical therapy. Treatment also included hot and cold packs, electrical stimulation, physical therapy, and medications.
The Carrier asserted three arguments. It agreed with the MRD conclusion that the claim was inadequately documented. It argued providers have an obligation to provide sufficient documentation to support their entitlement to payment. It contended that even if it is assumed the treatment was necessary, the documentation did not comply with Guideline requirements and was therefore insufficient to support payment.
The Carrier argued the treatment was not reasonable and necessary. It asserted the Claimant had previously been injured from falling and had spinal treatment before his__________, accident. It contended that chiropractic treatment was not reasonable for the type of injury he sustained. (The certified record contained opinions saying the services were not reasonable or necessary. These opinions are not discussed more fully here because, as indicated in the following section, absence of medical necessity is not available as a ground for denying the claim.)
The Carrier contended it is not possible to separate the inadequate documentation and absence of medical necessity grounds for denying the claim because it is not possible to determine whether a treatment is medically necessary without proper documentation.
Based on ________ statement that Lemmonwood did not provide any treatment to the Claimant, the Carrier argued there is no basis for paying the claim.
Analysis and Conclusion
This proposal concludes the Carrier should be ordered to pay the claim because the ground for denial that it asserted, lack of medical necessity, is not properly within the scope of the dispute and should not be decided. This determination is based on undisputed evidence that Lemonwood asked the Carrier repeatedly to provide it with a copy of the peer review upon which it based its denial and it did not do so. The Commission has adopted the following provisions at 28 TAC § 133.304:
Rule § 134.304 Medical Payments and Denials
(c) At the time an insurance carrier makes payment or denies payment on a medical bill, the insurance carrier shall send, in the form and manner prescribed by the Commission, the explanation of benefits to the appropriate parties. The explanation of benefits . . . shall provide sufficient explanation to allow the sender to understand the reason(s) for the insurance carrier’s action(s). A generic statement that simply states a conclusion such as “not sufficiently documented” or other similar phrases with no further description of the reason for the reduction or denial of payment does not satisfy the requirements of this section. . . .
(h) When an insurance carrier reduces or denies payment for treatment(s) and/or service(s) on the recommendation of a peer review as described in subsection (g) of this section, the insurance carrier shall provide a copy of the peer reviewer’s report to the sender of the bill, with the explanation of benefits. . . .
(k) If the sender of the bill is dissatisfied with the insurance carrier’s final action on a medical bill, the sender may request that the insurance carrier reconsider its action. the request shall include:
(3) a claim-specific substantive explanation that enables the insurance carrier to understand the sender’s position. This explanation shall rebut the insurance carrier’s reason for its action as indicated on the explanation of benefits. . . .
(s) This rule shall apply to all dates of service on or after July 15, 2000.
The version of Rule § 134.304 which applied to dates of services before July 15, 2000, became effective on February 20, 1992. It provided the following at subsection (g): § 133.304. Notice of Medical Payment Dispute (g) When a treatment or service is reduced or denied on the recommendation of a peer review initiated by the carrier, a copy of the reviewer’s report and the professional discipline and speciality information (not to include name, address, letterhead, or other specific identification) of the reviewer shall be included with the notice of medical payment dispute and submitted to the health care provider, injured employee, and employee’s representative. . . .
The Carrier’s response was inadequate under present 28 TAC § 133.304(h) for dates of service on and after July 15, 2002, and former § 133.304(g) for dates of service before July 15, 2002. Both rules require that a copy of the peer review be sent to the provider. According to ____ undisputed testimony, the peer review was not provided prior to the request for medical dispute resolution even though she asked for it repeatedly.
The Carrier’s response was also inadequate under 28 TAC § 133.304 (c) for services on and after July 15, 2000, because that subsection says a generic statement is an insufficient explanation for a denial-the Carrier stated the ground for its denial, but did so in the cryptic wording “Unnecessary Medical Treatment or Service.” The Carrier’s failure to adequately explain its reasons for denying the claim may have deprived Lemmonwood of the opportunity to submit a meaningful response to the Carrier’s denial when it asked for reconsideration under 28 TAC § 133.304(k).
This decision is similar in principal to the majority view in previous SOAH dockets where ALJs have ruled in cases involving a denial of preauthorization or payment that an insurer may not assert a reason for denying a claim that was not asserted to the health care provider prior to the filing of a request for medical dispute resolution. These decisions were based largely on ' 408.027(d) of the Act, which states if an insurer disputes the amount of payment or the health care provider’s entitlement to payment, it must send to the Commission, the provider, and the injured employee a report that “sufficiently explains the reasons for the reduction or denial of payment. . . .” In this case, although the Carrier did state a reason for denying the claim, it did not provide the peer review that would have adequately explained its actions. Thus, this docket is similar in principal to the cited docketsBthe provider was left to wonder why the claim was denied.
The SOAH dockets cited in footnote 6 are also relevant to the MRD reason for denying the claim. The cases hold a carrier may not rely on a ground for denying the claim that it did not assert prior to the case going to medical dispute resolution. The inadequate documentation basis for the MRD decision was not cited by the Carrier as a ground for denial. The Carrier’s argument that the inadequate documentation and absence of medical necessity grounds for denying the claim are essentially the same was unpersuasive. Inadequate documentation is a separate ground for denial, as shown by the MRD decision. Even if it were not, the Carrier’s cryptic wording concerning a lack of medical necessity, which is it’s self inadequate, may not be used to bootstrap a new reason for denying the claim.
III.FINDINGS OF FACT
- All parties received at least ten days notice of the hearing, which included a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
- J. A., the Claimant, suffered a compensable injury on_________, while working for__________ when he fell off a ladder onto his head.
- The Claimant presented to Lemmonwood Chiropractic Center, PC (Lemmonwood) and Gregory Davidovich, D. C., who saw him on 13 occasions from June 15, 2000, until February 7, 2001.
- During the time he saw Dr. Davidovich, the Claimant complained of headaches and neck pain and at times other pain such as pain radiating into his upper right extremity and right arm numbness.
- Lemmonwood filed claims with the Insurance Company of the State of Pennsylvania (the Carrier) from June 27, 2000, through February 14, 2001.
- The Carrier denied all the claims with the statement, “Unnecessary Medical Treatment or Service.”
- The Carrier informed Lemmonwood that it denied the claim on the basis of a peer review.
- On August 14, 2000, and on later dates, Lemmonwood asked to be provided the peer review.
- Lemmonwood requested medical dispute resolution on May 15, 2001, after the Carrier had denied its claims.
- The Carrier did not provide Lemmonwood with a copy of the peer review until after it requested medical dispute resolution.
- On September 24, 2001, the Texas Workers’ Compensation Commission Medical Review Division (MRD) issued an order denying Lemmonwood’s claim on the basis of inadequate documentation.
- Inadequate documentation was not a ground stated by the Carrier for denying the claim.
- The Claimant had post concussion syndrome.
- Lemmonwood’s services included chiropractic care and coordinating care with other providers, including a multi-disciplinary chronic pain management program.
IV CONCLUSIONS OF LAW
- The State Office of Administrative Hearings has jurisdiction over matters related to the hearing, including the authority to issue a decision and order, pursuant to Tex. Labor Code Ann. § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- The parties received proper and timely notice of the hearing. Tex. Gov’t Code Ann §§ 2001.051 and 2001.052; 1 Tex. Admin. Code § 155.27.
- The Carrier is precluded from asserting unnecessary medical treatment or services as a ground for denying the claim. Tex. Labor Code Ann. § 408.027(d); 28 Tex. Admin. Code § 133.304.
- The Carrier is precluded from asserting a lack of adequate documentation as a ground for denying the claim. Tex. Labor Code Ann. § 408.027(d); 28 Tex. Admin. Code § 133.304.
- The Carrier should pay Lemmonwood’s claim for 13 chiropractic services. Tex. Labor Code Ann. §§ 401.011(19) and 408.021.
IT IS, THEREFORE, ORDERED that the Insurance Company of the State of Pennsylvania pay for 13 chiropractic services performed for the Claimant by Lemmonwood Chiropractic Center, PC from June 15, 2000, until February 7, 2001.
Signed this 14th day of March, 2002.
JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- 28 Tex. Admin. Code (TAC) §134.1001.↑
- This testimony is corroborated by _____ notes at page 57 of Exhibit 1, which show she asked for a copy of the peer review on August 14, 2000, and subsequently.↑
- Ex. 1 at 9, 11, 20, 21, 27, 30, 38, 42, 45, and 47.↑
- 17 TexReg 1105.↑
- There were four dates of service before July 15, 2000. Ex. 1 at 9, 13, and 17.↑
- See SOAH Docket No. 453-01-1958.M5 (ALJ Corbitt); SOAH Docket No. 453-01-0309.M5 (ALJ Doherty); SOAH Docket No. 453-00-1570.M5 (ALJ Smith); SOAH Docket No. 453-99-3399 (ALJ Pacey); SOAH Docket No. 453-99-2021.M5 (ALJ Rusch); SOAH Docket No. 453-97-0973.M4 (ALJ Card); and SOAH Docket No. 453-96-0817.M4 (ALJ Corbitt).↑
- Rule § 134.304 (c) also applies to the ground cited by the MRD for denying claims for services on and after July 15, 2000Bbecause the Carrier did not cite inadequate documentation as a ground for denying the claim, the rule’s requirements were obviously not met.↑