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At a Glance:
Title:
453-02-1704-m5
Date:
November 22, 2002
Status:
Retrospective Medical Necessity

453-02-1704-m5

November 22, 2002

DECISION AND ORDER

This case is an appeal by the Quality Elite EMS, L.L.C. (“Petitioner”, from a decision of the Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”) in a medical fee dispute. The MRD denied Petitioner’s requested reimbursement of $10,830.00 for ambulance transport of a claimant suffering from a compensable work-related injury, primarily upon the basis that such transport was medically unnecessary.

Petitioner challenged the MRD’s decision on the basis that Petitioner properly provided the disputed services in accordance with a letter of medical necessity issued by the claimant’s physician; that the insurance carrier for claimant’s employer, Liberty Insurance Corp. (“Respondent”, led Petitioner to rely upon representations that those services did not require preauthorization; and that Respondent incorrectly identified and documented its reasons for denying reimbursement of those services.

This decision concludes that the MRD correctly denied reimbursement of $1,350.00, but that, contrary to the MRD’s decision, Petitioner should receive reimbursement for $9,480.00 of the disputed billings.

JURISDICTION AND VENUE

The Commission has jurisdiction over this matter pursuant to § 413.031 of the Texas Workers’ Compensation Act (“the Act”), TEX. LABOR CODE ANN. ch. 401 et seq. The State Office of Administrative Hearings (“SOAH”) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §413.031(k) of the Act and TEX. GOV'T CODE ANN. ch. 2003. No party challenged jurisdiction or venue.

STATEMENT OF THE CASE

The hearing in this docket was convened on November 4, 2002, at SOAH facilities in the William P. Clements Building, 300 W. 15th St., Austin, Texas. Administrative Law Judge (“ALJ”) Mike Rogan presided. Petitioner was represented by Travis Phillips, Attorney. Respondent Liberty Insurance Corp. was represented by Mahon Garry, Attorney.[1] After presentation of evidence and argument, the record closed on the same date.

The evidence presented revealed that the claimant suffered a compensable injury to her right shoulder on___________. The claimant underwent several weeks of rehabilitative physical therapy and then changed treating doctors on December 1, 2000. Shortly thereafter, the new doctor sent a letter to Petitioner, requesting periodic ambulance transport for the claimant between her home and the facility at which she was scheduled to undergo further physical therapy. Petitioner billed Respondent $10,830.00 for transport and associated services provided from December 14, 2000, through January 17, 2001. Respondent denied payment. Services for January 17, 2001, were denied on the basis that they were medically unnecessary. Services for the other dates in dispute were denied on the basis that Petitioner had not obtained preauthorization prior to providing them. Petitioner then sought a dispute resolution review before the MRD.

The MRD issued a decision on November 19, 2001, concluding that Petitioner was entitled to no reimbursement for the disputed services. The MRD concurred with Respondent that the services billed for January 17, 2001, were medically unnecessary. On the other hand, the reviewing officer found that preauthorization was not required (as Respondent had asserted) for services relating to the other dates in dispute. Nevertheless, the MRD disallowed these other billings, as well, primarily on the grounds that Petitioner had also failed to document that these services in question were medically necessary. Petitioner affected a timely appeal from the MRD’s decision.

THE PARTIES’ EVIDENCE AND ARGUMENTS

A. PETITIONER

Petitioner argued that, in providing service, it reasonably relied upon a letter of medical necessity from the claimant’s doctor, dated December 11, 2000, stating that the patient required ambulance transport to and from therapy sessions. Moreover, noted Petitioner, its personnel consulted with Respondent shortly after receiving the letter of medical necessity and were informed that no preauthorization was needed for the transport services. Under those circumstances, Petitioner concluded, Respondent was legally estopped from denying payment for such services-as Respondent subsequently did-on the basis that preauthorization was, in fact, required.

Edwin Cisneros and Kimberly Kelly-two of Petitioner’s emergency medical technicians (“EMTs”) who transported the claimant on one occasion or another-testified for Petitioner. Both stated that the claimant’s condition on those occasions appeared to be consistent with that described in the letter of medical necessity. The letter indicated that the claimant, in addition to her compensable shoulder injury, suffered from lumbar and cervical spinal injuries; could not stand, sit, or ambulate for prolonged periods; and manifested more general health problems with diabetes, high blood pressure, osteoporosis, and asthma. The letter concluded that the claimant “should not attempt to stand or walk.” Mr. Cisneros said that the claimant sometimes would be sitting up or even walking when he arrived at her home, but she nonetheless would be suffering sufficient pain to justify carrying her to the ambulance by stretcher. He added that he had been less concerned with the claimant’s shoulder injury than with some of her other numerous medical problems. Ms. Kelly testified that the claimant’s level of pain (mostly in the lower back), on occasions when Ms. Kelly observed her, would have made inappropriate her transportation by automobile or by any mode other than an ambulance.

While both Mr. Cisneros and Ms. Kelly regarded the provision of ambulance service to the claimant in this case as generally appropriate, Mr. Cisneros conceded on cross-examination that the type of transport provided (advanced life support or “ALS” did not appear to be necessary. Rather, he said, the service level “should have been” basic life support (“BLS”). The letter of medical necessity cited by Petitioner did not specify any particular level of required ambulance service.

B. RESPONDENT

Respondent primarily argued that the ALS ambulance service provided the claimant was clearly unnecessary and clearly not the least costly or intensive type of service that would have addressed the claimant’s legitimate needs. In Respondent’s view, to the extent that such service was justifiable at all in this instance, it was to address medical conditions other than the claimant’s compensable injury itself.

Alternatively, Respondent presented a “Trial Brief”rging that preauthorization for the transport services at issue was indeed required, contrary to the MRD’s decision in this matter. By Respondent’s reasoning, if the claimant was in such serious condition that she required ALS ambulance transport to and from her home, her home must have housed sufficient life-support equipment to render it a health care “facility.” Since the version of the Commission’s Preauthorization Rule in effect at the time the disputed services were rendered-specifically, 28 TEX. ADMINISTRATIVE CODE (“TAC”) § 134.600(h)(1)-required preauthorization for “transfers between hospitals,” the requirement should apply here to transfers between the claimant’s home and the therapy facility, which Respondent perceives as at least the functional equivalent of a transfer between hospitals. Moreover, because Petitioner’s EMTs necessarily entered the claimant’s home to prepare her for movement to an ambulance, Respondent concluded that their services constituted, in part, “home health care,” which was subject to required preauthorization under 28 TAC§134.600(h)(14).

Finally, in its brief, Respondent urged that Petitioner’s transport service was not entitled to reimbursement because 28 TAC § 134.6 restricted the recovery of “travel expenses” to instances in which “the distance traveled to secure medical treatment is more than 20 miles one way.” Evidence in this case indicates that the claimant’s one-way trips by ambulance-from home to therapy or back-were shorter than 20 miles.

Dr. Nick Tsourmas, an orthopedic surgeon who reviewed the records in this case, testified for Respondent. He reported that the record showed the claimant to be suffering from even more non-compensable medical problems than cited in the letter of medical necessity dated December 11, 2000. These additional problems included serious obesity and congestive heart failure. Dr. Tsourmas noted, too that the claimant’s treating doctor, who was a chiropractor, was unqualified to deal with the patient’s many non-orthopedic problems.

Dr. Tsourmas concluded that the record showed the claimant making slow but reasonable improvement through therapeutic exercise during the first six weeks following her injury-before she changed doctors and her new doctor insisted that she needed ambulance transport. A report from the end of this period (dated November 29, 2000) even indicated that the claimant was performing 10 “half sit-ups”as part of her exercise program, although she continued to complain of “a great deal of pain that is primarily in her right shoulder.” In this context, Dr. Tsourmas found it implausible that within another couple of weeks afterward the claimant would have been too incapacitated to travel to her therapy sessions except by ALS ambulance. According to Dr. Tsourmas, he has never seen a shoulder patient make such a negative progression and has himself never had a shoulder patient transported by anything but a regular automobile. Generally, Dr. Tsourmas advanced the position that if the claimant was so incapacitated that she required ALS ambulance transport, she should not have been participating in significant physical therapy, and that if she could take such therapy, she did not need the ambulance transport. In any case, he stated, any real need for such transport was not related to the claimant’s compensable injury.

The certified record compiled by the CommissionBi.e., the MRD’s Findings and Decision, with accompanying documents, totaling 141 pagesBwas admitted into evidence as Exhibit 1.

ANALYSIS

Dr. Tsourmas presented a convincing analysis disputing the medical necessity of the services at issue in this case. Petitioner’s principal witness (Mr. Cisneros, who is also a vice-president of the organization) generally conceded, as well, that these services were provided at an unwarranted level of sophistication. Petitioner bears the burden of proving those deficiencies that it contends should invalidate the MRD’s decision in this case. Under the circumstances, the ALJ concludes that Petitioner has fallen well short of rebutting the MRD’s conclusion that the services in question were unnecessary. Thus, for those services that Respondent formally denied as unnecessary-and for which denial was subsequently upheld on the same basis by the MRD-the ALJ must confirm the MRD’s decision. These specific items relate to the date of service January 17, 2001, and comprise billings of $1,350.00.

However, with respect to most of the billings at issue in this case, the basis for Respondent’s initial denial of reimbursement differed from that upon which the MRD ultimately made its decision. For all of those other service items, Respondent identified the basis of denial-in the relevant EOBs or TWCC-62 forms submitted-as lack of preauthorization (code “A” The MRD, though, explicitly rejected this rationale with a finding that “Per rule 134.600(h)(1), ambulance services are not one of the services requiring preauthorization except for transfers between facilities.” On its own initiative, apparently, the MRD then found an alternative basis for denying reimbursement-i.e., that the services in question were not medically necessary or had not been documented as necessary.

A rather long and consistent line of SOAH decisions has held that the MRD cannot properly expand the scope of a dispute in this manner.[2] Those cases have interpreted the statutes and rules that define the structure of the Commission’s dispute resolution process as entitling a service provider to clear notice of the nature and basis of a carrier’s denial of reimbursement. If that notice is not comprehensively effected through a TWCC-62 submitted prior to initiation of the Commission’s dispute resolution process, the carrier waives any grounds for non-reimbursement that it did not include in such TWCC-62. In this case, that principle applies to billings of $9,480.00 for six dates of service in December of 2000.

Respondent’s efforts to argue, alternatively, that the services at issue actually do require preauthorization were not, in the ALJ’s view, successful. No evidence indicates that the claimant’s place of residence is equipped or functions as any type of health care facility. The fact that ambulance transport of the claimant began or ended at her home does not transform such service into “home health care.” Additionally, the limits on reimbursements for travel cited by Respondent in

28 TAC§134.6 clearly apply to conventional modes of transportation, not ambulance service, since the rule defines such reimbursement at the same mileage-allowance levels that state employees would receive for on-the-job travel.

CONCLUSION

The ALJ finds that, under the record provided in this case, Petitioner should receive reimbursement of $9,480.00 out of billings to Respondent of $10,830.00 for ambulance transport and ancillary services, in contravention of the MRD’s initial determination in this matter.

FINDINGS OF FACT

  1. _________________, claimant suffered an injury to the right shoulder, which was a compensable injury under the Texas Worker’s Compensation Act (“the Act”, TEX. LABOR CODE ANN. § 401.001et seq.
  2. On December 11, 2000, claimant’s treating physician sent a letter to Quality Elite EMS, L.L.C. (“Petitioner”), requesting periodic ambulance transport for the claimant between her home and the facility at which she was scheduled to undergo rehabilitative physical therapy. The letter indicated that the claimant, in addition to her compensable shoulder injury, suffered from lumbar and cervical spinal injuries; could not stand, sit, or ambulate for prolonged periods; and manifested more general health problems with diabetes, high blood pressure, osteoporosis, and asthma.
  3. Petitioner billed the insurance carrier for claimant’s employer, Liberty Insurance Corp. (“Respondent”), $10,830.00 for advanced life-support ambulance transport and associated services, as follows:
  4. A total of $9,480.00 for dates of service December 14, 15, 18, 20, 27, and 29, 2000, covering service items under HCPCS Codes A0364(2), A0390(2), and A0392(2) in the Medical Fee Guideline for the Texas Workers’Compensation Commission (“Commission”).
  5. A total of $1,350.00 for date of service January 17, 2001, covering service items under HCPCS Codes A0426(2), A0390(2), and A0392(2).
  6. Respondent denied the requested reimbursements, as follows:
  7. With respect to items noted under Finding of Fact No. 3(a), denial was based on Petitioner’s failure to obtain preauthorization (Code “A” on the pertinent TWCC-62 forms).
  8. With respect to items noted under Finding of Fact No. 3(b), denial was based on lack of medical necessity (Code “U” on the pertinent TWCC-62 form).
  9. Petitioner made a timely request to the Commission’s Medical Review Division (“MRD”) for medical dispute resolution with respect to the requested reimbursement.
  10. The MRD concluded that Petitioner was entitled to no reimbursement in a decision dated November 19, 2001, in dispute resolution docket No. M5-01-2416-01.
  11. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings, seeking review and reversal of the MRD decision.
  12. The Commission mailed notice of the hearing’s setting to the parties at their addresses on February 5, 2002. The hearing was subsequently continued several times, at the request of the parties, with proper notice.
  13. A hearing in this matter was convened on November 4, 2002, at the William P. Clements Building, 300 W. 15th St., Austin, Texas, before Mike Rogan, an Administrative Law Judge with the State Office of Administrative Hearings. Petitioner and Respondent were represented.
  14. Most of the claimant’s potentially incapacitating conditions, as cited in the letter of medical necessity noted in Finding of Fact No. 2, and most of the claimant’s pain, as observed by Petitioner’s emergency medical technicians (“EMTs”) when transporting her, were not associated with the compensable injury to the right shoulder.
  15. Petitioner provided transport for the claimant only between her home and the facility at which she was scheduled to undergo rehabilitative physical therapy.
  16. As an incident to transporting the claimant, Petitioner’s EMTs carried her out of her home to an ambulance, or vice versa, without performing any significant medical service or assessment at the patient’s home.

CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (“the Act”), TEX. LABOR CODE ANN. § 413.031.
  2. 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 § 413.031(k) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMINISTRATIVE CODE (“TAC”) § 133.305(g) and §§ 148.001-148.028.
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§2001.051 and 2001.052.
  5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC §148.21(h).
  6. Based upon the foregoing Findings of Fact, the services in dispute were not shown to be medically necessary for the treatment of the claimant.
  7. Based upon the foregoing Findings of Fact, preauthorization was not required for the type of services in dispute, pursuant to 28 TAC § 134.600(h), as in effect at the time the disputed services were provided.
  8. Based upon the foregoing Findings of Fact, Respondent has waived any grounds for non-reimbursement of services that it did not include in the TWCC-62 form pertinent to such services.
  9. Based upon the foregoing Findings of Fact and Conclusions of Law, Petitioner is entitled to reimbursement of $9,480.00 for the services noted in Finding of Fact No. 3(a) but is not entitled to reimbursement upon the $1,350.00 in billings submitted for the services noted in Finding of Fact No. 3(b).

ORDER

IT IS THEREFORE, ORDERED that the order of the Medical Review Division of the Texas Workers’ Compensation Commission, issued in this matter on November 19, 2001, be reversed in part, and that Respondent, Liberty Insurance Corp., reimburse Petitioner, Quality Elite EMS, L.L.C., $9,480.00 for ambulance transport and ancillary services provided to a claimant under the Texas Workers’ Compensation Act from December 14, 2000, through January 17, 2001.

Signed this 22 nd day of November, 2002.

MIKE ROGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The staff of the Commission has been designated as a Respondent in the proceeding but formally elected not to participate, although it filed a “Statement of Matters Asserted” (incorporated within the Notice of Hearing).
  2. See SOAH Docket Nos. 453-97-0973.M4 (May, 1998), 453-00-1740.M5 (October 20, 2000), and 453-01-3472.M5 (August 14, 2002), along with cases cited therein.
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