DECISION AND ORDER
This case is a dispute over whether additional reimbursement is appropriate for Robert W. Jackson, M.D. (Provider), for a procedure he performed on_____ (Claimant) on September 25, 2000. This decision finds that Provider is not entitled to additional reimbursement. The hearing was held September 30, 2002, with Administrative Law Judge (ALJ) Steven M. Rivas presiding. Patricia Eads, attorney, appeared on behalf of Texas Mutual Insurance Company (Carrier). Provider appeared and represented himself. The record closed the same day.
On_________, Claimant sustained a compensable injury to his right knee when he slipped and fell to the floor. As part of his treatment, Claimant was referred to Provider, who recommended Claimant undergo a Carticel implantation procedure. This procedure involves removing damaged tissue cells from the knee, repairing the damaged cells, and re-implanting the cells at a later date. On June 15, 2000, Provider removed the damaged tissue from Claimant’s knee and, after it was repaired, re-implanted the tissue on September 25, 2000. Under the Texas Workers’ Compensation Commission’s (Commission) fee guidelines, there is no standard CPT code for the Carticel procedure, so Provider billed Carrier $6,000 for the procedure under CPT code 27599 - unlisted procedure, femur or knee.
The Commission’s adopted Medical Fee Guideline (MFG) states the maximum allowable reimbursement (MAR) amount for a procedure billed under CPT 27599 will be determined by the documentation of procedure (DOP), or written documentation of the service rendered, that is attached to the bill. In this case, Provider attached a 2-page operative report to his $6,000 bill. Carrier reimbursed Provider $2,326, and Provider sought an additional $3,677 from Carrier and requested medical dispute resolution. The Commission’s Medical Review Division (MRD) denied additional reimbursement on November 15, 2001, in Docket No. M4-02-0329-01, citing insufficient documentation. The MRD found the operative report did not indicate the exact description of the procedure, diagnosis and rationale for the procedure, the time required to perform the procedure, the skill level necessary, or the equipment used, as required by the Commission’s medical fee guidelines. Provider appealed and filed a request for hearing before the State Office of Administrative Hearings (SOAH).
B. Applicable Law
Under the Tex. Lab. Code Ann. § 408.021(a) an employee who sustains a compensable injury is entitled to all health care that: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment.
In determining appropriate reimbursement rates for medical care, the Commission, under Tex. Lab. Code Ann. §413.011(b), shall develop conversion factors or other payment adjustment factors and provide for reasonable fees for the evaluation and management of care.
Additionally, under Tex. Lab. Code Ann. §413.011(d), guidelines for medical services fees must be fair and reasonable and designed to ensure the quality of medical care and to achieve effective medical cost control.
Under the Commission’s rule found at 28 Tex. Admin. Code §134.1(c), reimbursement for services not identified in an established fee guideline shall be reimbursed at fair and reasonable rates as described in the Texas Workers' Compensation Act, §413.011 until such period that specific fee guidelines are established by the commission.
The General Instructions of the MFG Guidelines (III) (A) states if documentation of procedure (DOP) is the maximum allowable reimbursement (MAR), the value of the service will be determined by written documentation attached to the bill and shall include: 1. The exact description of the procedure; 2. Nature, extent, and need (diagnosis and rationale) for the procedure; 3. Time required to perform the procedure; 4. Skill level necessary to perform theprocedure; 5. Equipmentused; and 6. Other information as necessary.
Dr. Jackson’s testimony
Dr. Jackson is one of only 16 practitioners in Texas who perform the Carticel procedure. He is currently the Department Chief of Orthopedic Surgery at the Baylor University Medical Center in Dallas, Texas. He testified the Carticel procedure is complex and requires specialized knowledge and post graduate training. In addition, the procedure itself can take up to two hours to perform but requires several months of follow up observations. He testified he billed Carrier a reasonable fee for the procedure considering the complexity of the procedure and the rate other practitioners charge for the same procedure. However, evidence regarding the fees of other practitioners was not admitted over Respondent’s hearsay objection. On cross examination, Dr. Jackson testified the Carticel procedure is more complex than a total knee replacement but admitted he was not familiar with the statutes regarding the Commission’s reimbursement rates or how they should be determined.
Carrier offered deposition testimony of John Pearce, M.D., and called Nick Tsourmas, M.D., for live testimony. Dr. Pearce is an orthopedic surgeon and has treated other patients who had the same injury as Claimant. Although familiar with the Carticel procedure, Dr. Pearce testified he treats his patients who have the same injury as Claimant with other procedures. Furthermore, Dr. Pearce testified he has never billed a carrier $6,000 for the other procedures. Dr. Pearce testified he is also familiar with the Commission’s reimbursement procedures and since there is no specific CPT code that covers the Carticel procedure, a reasonable reimbursement should be the same rate as CPT code 27442, which involves arthroplasty, femoral condyles or tibial plateaus. Dr. Pearce stated the complexity and skill level required to perform the Carticel procedure is the same for CPT code 27442. The reimbursement rate for CPT code 27442 is $2,326, which is a fair and reasonable amount of reimbursement for the Carticel procedure according to Dr. Pearce. Finally, Dr. Pearce testified a total knee replacement is a more complex procedure than Carticel and has a reimbursement amount of $3,844, which is $2,156 less than the amount Provider billed for the Carticel procedure.
Dr. Tsourmas is an orthopedic surgeon who, like Dr. Pearce, has treated other patients with the same injury as Claimant. Also, like Dr. Pearce, Dr. Tsourmas is familiar with the Carticel procedure but does not perform it on his patients because, in his opinion, the Carticel procedure is “unproven.” In his peer review of Dr. Jackson’s $6,000 bill, Dr. Tsourmas testified CPT code 27442 provided a fair and reasonable reimbursement amount of $2,326 for the Carticel procedure based on the “simple and straightforward” technique described by Dr. Jackson in his operative report. Dr. Tsourmas also testified the Carticel procedure is less complex than a total knee replacement surgery.
Provider was denied additional reimbursement by the MRD, and thus had the burden of proving Carrier did not provide a fair and reasonable reimbursement for the Carticel procedure. Provider admitted he was not familiar with the Commission’s reimbursement procedure and did not present enough evidence to conclude the MRD decision was incorrect or that Carrier did not reimburse Provider a fair and reasonable amount.
Because the Carticel procedure has no corresponding CPT code, the reimbursement amount is determined by the documentation attached to the bill or a fair and reasonable amount determined by the Commission. The MRD decision found Provider did not comply with the MFG General Instructions by not providing sufficient written documentation with his bill. Specifically, the MRD decision noted Provider did not submit documentation relating to the exact description of the procedure, the nature, extent, and need for the procedure, the time required to perform the procedure, the skill level necessary to perform the procedure, or the equipment used toperform the procedure. The operative report describes the procedure in great detail but does not address any of the other elements required by the MFG like the necessary skill level or equipment used to perform the procedure. Therefore, the ALJ is not persuaded the MRD decision was incorrect.
At the hearing, Provider offered testimony that addressed the MFG requirements, but did not present evidence that the reimbursement amount was not fair and reasonable. The Commission’s rule found at 28 Tex. Admin. Code §134.1(c), says that reimbursement for services not identified in an established fee guideline shall be reimbursed at fair and reasonable rates. Because the Carticel procedure is not identified in the MFG, Provider had to prove $2,326 was not a fair and reasonable amount, which he did not. Provider’s testimony focused mainly on the procedure itself and presented no evidence that the reimbursement amount was not fair and reasonable. Carrier on the other hand, provided evidence that the amount reimbursed was fair and reasonable. Drs. Pearce and Tsourmas both testified they treat patients with the same injury as Claimant and never bill $6,000 for their treatments. Additionally, both doctors testified they are familiar with the Carticel procedure and, after having read Dr. Jackson’s operative report, believe $2,326 is a fair and reasonable reimbursement amount. Therefore, the ALJ is not persuaded that $2,326 is not a fair and reasonable reimbursement amount.
II. FINDINGS OF FACT
- Claimant,_____., suffered a compensable injury on _______Texas Mutual Insurance Company (Carrier) insured Claimant on the date of the injury.
- Claimant came under the care of Robert W. Jackson, M.D. (Provider), who recommended Claimant undergo the Carticel procedure, a two-part operation.
- Provider performed the two parts of the Carticel procedure on June 15, 2000, and September 25, 2000.
- The Carticel procedure does not have a corresponding CPT code.
- Provider billed Carrier a total of $6,000, under CPT code 27599 - unlisted procedure.
- The reimbursement amount was to be determined by the documentation of procedure.
- Provider attached a copy of his operative report to his $6,000 bill for the Carticel procedure.
- Carrier reimbursed Provider $2,326, and Provider filed a Request for Medical Review Dispute Resolution with the Texas Workers’ Compensation Commission (Commission) seeking additional reimbursement for Carticel procedure.
- On November 15, 2001, the Commission’s Medical Review Decision (MRD) found Provider was not entitled to additional reimbursement based on insufficient documentation.
- Provider filed a request for hearing before the State Office of Administrative Hearings (SOAH).
- Notice of the hearing was sent July 22, 2002.
- The notice contained 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.
- The hearing was held September 30, 2002, with Administrative Law Judge Steven M. Rivas presiding and representatives of the Carrier, and Provider participating. The hearing was adjourned and the record closed the same day.
- The 2-page operative report Provider attached to his bill did not address the skill level required to perform the Carticel procedure or the equipment required to perform the procedure as required by the General Instructions of the Medical Fee Guidelines (MFG).
- Provider did not present sufficient evidence that the MRD decision was incorrect.
- Provider did not present any evidence that he was not reimbursed a fair and reasonable amount for the Carticel procedure he performed on Claimant.
III. CONCLUSIONS OF LAW
- The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq.
- SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052.
- The Provider, as Petitioner, has the burden of proof in this matter under 28 Tex. Admin. Code§ 148.21(h).
- Reimbursement for services not identified in an established fee guideline shall be reimbursed at fair and reasonable rates pursuant to the Commission’s rule found at 28 Tex. Admin. Code §134.1(c).
- Pursuant to the foregoing Findings of Facts and Conclusions of Law, Provider is not entitled to additional reimbursement for the Carticel procedure performed on September 25, 2000.
IT IS, THEREFORE, ORDERED that Provider, Robert W. Jackson, M.D., is not entitled to additional reimbursement by Carrier, Texas Mutual Insurance Company, for the Carticel procedure it performed on Claimant_____., on September 25, 2000.
Signed this 25th day of November, 2002.
State office of administrative hearings
Steven M. RivasAdministrative Law Judge
- Cardicel is a registered trademark of Genzyme Corporation. The procedure was also referred to in the record as Carticel autologous cartilage re-implantation and autologous chondrocyte implantation surgery.↑
- Dr. Jackson’s operative report of the Cardicel procedure performed on Claimant on September 25, 2000. Pages 82 and 83 of the Certified Record.↑
- Had Provider been reimbursed $3677, he would have been awarded a total of $6003 for the procedure.↑
- Dr. Jackson claimed to have letters from other practitioners that reflected the cost of the Cardicel procedure but Respondent objected on the basis of hearsay. Dr. Jackson could not provide the ALJ with a hearsay exception so Responden’s objection was sustained.↑
- Dr. Pearce determined Claimant suffered from an osteochondral defect in his medial femoral condyle and in the past has treated this type of injury with either a micro fracture technique or an osteochondral transfer (OATS) procedure.↑
- The CPT code for total knee replacement is 27447 and identified as medial and lateral compartments with or without patella resurfacing (“total knee replacement”). It has a maximum reimbursement rate of $3,844.↑