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Title: 

453-02-2257-m4

Date: 

December 2, 2002

Type: 

Medical Fees

453-02-2257-m4

DECISION AND ORDER

I. SUMMARY

This dispute involves whether Respondent Mario Kapusta, M.D., a vascular surgeon, is entitled to payment from the ______________for a procedure he performed on Claimant ___The spinal surgery performed on Claimant was an anterior arthrodesis procedure.[1] In this case, Dr. Kapusta made the incision in Claimant’s stomach area to expose the vertebrae on which the orthopedic surgeons performed the arthrodesis procedures. He then closed the incision.

Following the surgery, Dr. McConnell and Dr. Conte, the orthopedic surgeons who performed the arthrodesis, billed for their services. UTS paid the surgeons according to the 1996 Medical Fee Guideline (Guideline), adopted by the Texas Workers’ Compensation Commission (Commission).[2] Dr. Kapusta billed for his services separately, indicating he performed vascular surgery (CPT Code 37799) and added modifier -62,[3] which is used when two surgeons are required to manage a specific surgical procedure. _____ denied the claim, arguing the opening and closing of the incision was global to the spinal surgery and had already been paid in the orthopedic surgeons’ claim. Dr. Kapusta requested medical dispute resolution. The Commission’s Medical Review Division (MRD) reviewed the parties’ positions and decided ____ should pay Dr. Kapusta as a second surgeon for a separate procedure, as billed. ____ appealed that decision.

The Administrative Law Judge (ALJ) finds that Dr. Kapusta is not entitled to payment as a second surgeon who performed a separate procedure, because performing the opening and closing for an anterior arthrodesis is not a separate procedure, as is contemplated in the Guideline’s explanation for the use of modifier – 62. Instead, the ALJ determines that the Guideline’s Surgery Ground Rule I.E.2.d. specifically applies in this type of case. That rule specifies that when a different surgeon, such as a vascular surgeon, performs the anterior arthrodesis approach,[4] both surgeons are to bill for the anterior arthrodesis procedure, using modifier -65, and that each surgeon is entitled to 75% of the maximum allowable reimbursement (MAR) for the anterior arthrodesis procedure. Therefore, the ALJ concludes that Dr. Kapusta is entitled to 75% of the MAR for the anterior retroperitoneal performed on Claimant on January 15, 2001.

II. PROCEDURAL HISTORY

The Administrative Law Judge (ALJ) convened the hearing on September 9, 2002. Kevin Heyburn, Assistant Attorney General, represented UTS. Dr. Kapusta appeared on his own behalf. The presentation of evidence was concluded on the day of the hearing, but the record was left open until September 23, 2002, for submission of closing arguments. Dr. Kapusta submitted his closing argument on September 12, and UTS on September 23, 2002, after which Dr. Kapusta responded and requested that his response also be considered.[5] The request was denied. However, on November 8, 2002, the ALJ reopened the record for the limited purpose of allowing the parties to address whether Surgery Ground Rule I.E.2.d. applied in this case. The record of the hearing closed with the parties’ responses, which were filed on November 18, 2002.

Neither party contested jurisdiction or notice. Therefore, those matters are set out in the findings and conclusions without further discussion here.

III. EVIDENCE AND APPLICABLE LAW

In addition to the 89-page certified record (C.R.) of the MRD proceeding, the evidence consisted of the testimony of Registered Nurse Joyce Maxam and of Dr. Kapusta.

There is no dispute that Claimant underwent spinal surgery on January 15, 2001, to repair herniated nucleus pulposus with instability at L1-L2, disk herniation at L4-L5, and internal disk derangement at L5-S1 and S1-S2. Similarly, all agree that Dr. Kapusta performed the anterior approach (an opening incised through Claimant’s stomach area) and closed the incision after Dr. McConnell and Dr. Conte performed the diskectomies and fusions or bone grafts[6] on Claimant’s spine. Dr. Kapusta testified his procedure had nothing to do with the spinal surgery. His primary function was to make the incision in the belly and move the viscera and all the veins and arteries in the area to a safe place away from the site of the spinal surgery, so that no organs, veins, or arteries would be nicked or cut. After he secured the organs and venous bodies away from the area where the diskectomies and fusions would be performed, Dr. Kapusta left the operating room. He waited nearby, however, in case his services were required, e.g., if a vein was accidently cut, he would be called to repair it and stabilize the patient. In this case, no mishaps occurred, and he was not required to return until the orthopedic surgeons had completed their arthrodesis procedures. He then closed the incision. In setting out the various procedures that were performed on the date of the surgery, Dr. McConnell listed the following under “Title of Operation”in the operative report:[7]

  1. Anterior retroperitoneal approach to the lumbar spine, Dr. Mario Kapusta.
  2. Anterior lumbar diskectomy and decompression of the spinal canal at L4-L5.
  3. Anterior lumbar diskectomy and decompression of the spinal canal at L5-S1.
  4. Anterior lumbar interbody instrumentation (two Harms titanium cages at L4-L5).
  5. Anterior lumbar interbody instrumentation (two Harms titanium cages at L5-S1).
  6. Anterior lumbar interbody arthrodesis, L4-L5.

Dr. McConnell billed for the first procedure indicated above under CPT Code 63090,[8] and ____ paid 100% of the maximum amount allowed under the Guideline for the procedure. (See C.R. p. 53).

The parties agreed as to the specific procedures that were performed on Claimant, but they disagreed as to how those procedures should be characterized and billed in relation to the spinal surgery. ___ expert witness, R.N. Maxam agreed that Dr. Kapusta performed the approach for Dr. McConnell, but stated that opening and closing of the incision was necessary and integral to the spinal surgery, and, therefore, was global to the surgery. In support of her position, she pointed to a section in the “Structure of the Data” found in the Global Service Data for Orthopaedic Surgery[9] that detailed what procedures were considered global to a surgical procedure. (See C.R. pp. 65-70). The surgical approach and closure of wound were listed under the “[g]eneric” intraoperative services” that were included in the global service package.[10] Ms. Maxam also testified that ____ had already paid Dr. McConnell for Claimant’s surgery. If Dr. Kapusta had not been paid for his services, he should look to Dr. McConnell for reimbursement, not to the carrier. She further stated that in her experience, most surgeons performed their own opening and closing in this type of surgery, and that it was uncommon to have a different surgeon perform those services when a spinal surgery was performed.

Dr. Kapusta testified that the procedures he performed were entirely separate from the arthrodesis and required entirely different skills from those of an orthopedic surgeon. He stated, in effect, that the opening and closing he performed were separate procedures from the procedures performed on Claimant’s spinal cord. Therefore, he should be reimbursed under CPT Code 37799, unlisted procedure, vascular surgery with modifier 62. He testified he often performed such services for other surgeons who were not experts in safeguarding certain organs, arteries, and veins that are exposed when surgery is performed through a patient’s stomach area. He further noted that he had previously appealed an earlier case with identical issues before SOAH and had received a decision that allowed his claim for reimbursement for a separate vascular procedure.

The Surgery Ground Rules in the 1996 Guideline apply in this case. The Global Fee Concept, incorporated in the Guideline under Surgery Ground Rule I.A. has general application as to how surgical procedures or aspects of surgical procedures should be characterized and billed. However, the Guideline also includes other instructions and rules that apply to certain types of surgical procedures. For example, Surgery Ground Rule I.D. relates to how “multiple” procedures[11] that are performed during a surgery should be billed and paid. In addition, the drafters of the Guideline considered certain issues that were likely to be presented and provided guidance as to how those issues should be handled. (See Surgery Ground Rule I.E. relating to miscellaneous surgical issues.)

Surgery Ground Rule I.E.2 specifically relates to “arthrodesis.” Subsection 2(d) states:

When anterior arthrodesis approach is performed by a different surgeon, both surgeons bill using the anterior arthrodesis CPT code with modifier -65. (emphasis added).

In defining modifier -65, the Guideline indicates it is to be used when co-surgeons perform a surgical procedure through the same incision. It further states that in such a case, each surgeon is to bill at 75% of the MAR for his respective primary procedure. However, Surgery Ground Rule I.E.2.d. specifies that when a co-surgeon performs an anterior approach for the arthrodesis, the surgeon who does the approach and the surgeon who does the arthrodesis are to “bill using the anterior arthrodesis CPT code with modifier -65.” Thus, in this particular type of case, the drafters require that both surgeons bill using the same CPT code with modifier -65, and not by using CPT codes for separate procedures.

IV. DISCUSSION

____ made two arguments to support denial of Dr. Kapusta’s claim. First, it consistently argued that Dr. Kapusta’s opening and closing of the incision was global to the spinal surgery and had already been reimbursed. The ALJ agrees with ___ that when one surgeon performs all the procedures done during surgery, the surgeon may not separately charge for the opening and closing because the procedure is an integral part of the surgery, and thus, global to it. The Guideline’s global fee rule provides that such procedures are bundled into the overall surgery and are not to be billed separately. However, the Guideline includes rules of general application, and also rules and instructions that apply to particular situations, such as Surgery Ground Rule I.E.2.d.

In this case, both general and specific rules seem to apply, but they present inconsistent results. The question then becomes which rule predominates. The ALJ believes that principles of statutory construction may be used, by analogy, to decide the question. It is well established that, unless clearly specified otherwise, when a specific provision involves or relates to the same subject matter that is covered in a general rule, the specific rule prevails as an exception to the general rule.[12] Thus, while ordinarily, opening and closing of an incision is global to a surgery, the ALJ considers Surgery Ground Rule I.E.2.d. an exception to the general global fee rule.

The ALJ believes that Surgery Ground Rule I.E.2.d. applies in this case. Further, the ALJ interprets the rule, which relates specifically to arthrodesis procedures in which the anterior approach is performed by a surgeon who does not perform the arthrodesis, to mean that the surgeon who performs the approach is permitted to bill separately for the opening and closing, at 75% of the MAR for the anterior arthrodesis procedure. The ALJ disagrees with ___ that applying the rule in this case is taking the rule out of context. Rather, the ALJ believes that this is the precise type of case for which the rule was intended and thus is appropriately applied.

Second, ____ argued that the issue in this case is simply whether Dr. Kapusta billed for his services under the correct CPT Code, and since he did not, he should get no reimbursement. The ALJ believes such a harsh result is not warranted in this case. The evidence established without a doubt that Dr. Kapusta provided surgical services to Claimant on the date in question, although those services should not be characterized or billed as “unlisted vascular surgery.” Dr. McConnell acknowledged in the operative report that Dr. Kapusta performed an anterior retroperitoneal approach, and ____ did not refute that fact. While the ALJ agrees that his services were billed under the wrong CPT code, the ALJ believes the erroneous billing could have resulted from the fact that the applicable rule may be a bit confusing. Indeed, that the rule was not employed in this or in the earlier case that was cited by Dr. Kapusta may lie in the fact that the meaning of the rule is not immediately clear.[13] The ALJ believes that Dr. McConnell and Dr. Kapusta billed the retroperitoneal approach with decompression of spinal cord[14] incorrectly; both should have billed it under CPT Code 63090 with modifier-65. Irrespective of the error, the ALJ finds that Surgery Ground Rule I.E.d.2. applies in this case, and Dr. Kapusta should be reimbursed according to its provisions.

Thus, based on the evidence and on the applicable surgery ground rules, the ALJ concludes that Dr. Kapusta should be paid 75% of the MAR for CPT Code 63090 as a co-surgeon.

V. FINDINGS OF FACT

  1. On ________Claimant ______an employee of the_____________, suffered a compensable injury. At the time of the injury, ___ was a self insurer for workers’ compensation claims.
  2. After conservative treatment did not relieve or cure Claimant’s back injury symptoms, Claimant’s treating physician, Mark McConnell, an orthopedic surgeon, recommended surgery.
  3. ___ sought a second opinion for the proposed spinal surgery. The spinal surgery was approved through the second opinion process on October 23, 2000.
  4. On January 15, 2001, Dr. McConnell and Dr. Conte, the assistant orthopedic surgeon, performed a lumbar diskectomy, a surgical removal of an intervertebral disk, and decompression of the spinal canal at L4-L5 and L5-S1; a lumbar interbody instrumentation; and a lumbar interbody arthrodesis at L4-L5.
  5. A spinal arthrodesis is commonly referred to as a spinal “fusion,” which involves cutting away the cartilage disk tissue between two vertebrae and inserting a bone graft between the two vertebrae.
  6. A spinal diskectomy or fusion performed through a patient’s front is an anterior arthrodesis.
  7. Ordinarily, an orthopedic and a vascular surgeon are needed to perform an anterior arthrodesis. Generally, the vascular surgeon’s job is to move the tissue, organs, and blood vessels safely aside and expose the vertebrae, thus allowing the orthopedic surgeon to perform the spinal diskectomy and/or fusion.
  8. Dr. Kapusta, a vascular surgeon, performed the anterior retroperitoneal approach to the lumbar spine, and Drs. McConnell and Conte performed the lumbar diskectomy and decompression procedures on Claimant’s spine.
  9. Dr. McConnell billed for the procedure described in Finding No. 8 using CPT Code 63090 without a modifier and was paid 100% of the maximum allowable reimbursement (MAR)
  10. Drs. Kapusta and McConnell performed surgical procedures on Claimant through the same incision, but the procedures each performed required totally different skills.
  11. The Texas Workers’ Compensation Commission’s 1996 Medical Fee Guideline (Guideline), adopted by reference in 28 TAC §134.201 (repealed as of January 1, 2002), governs payment for services rendered in Claimant’s surgery. The Guideline adopts the American Medical Association Current Procedure Terminology (CPT) codes, and sets the maximum allowable reimbursement (MAR), for many medical procedures employed in the medical field.
  12. The CPT Code 63090 is assigned for the “retroperitoneal approach with decompression of spinal cord . . .,” for which Dr. McConnell billed. It is listed in the Commission’s Guideline under the general heading of “anterior or anterolateral approach for extradural exploration/decompression.”
  13. The anterior arthrodesis procedure used in Claimant’s case is listed as CPT Code 63090, “vertebral corpectomy (vertebral body resection), partial or complete . . . or retroperitoneal approach with decompression of spinal cord . . . .,” and has a MAR of $4,248.
  14. Dr. Kapusta performed an anterior, retroperitoneal approach to expose the surgical site for the orthopedic surgeons to work on Claimant’s damaged vertebrae. Performing that approach required different skills than the skills of the orthopedic surgeons.
  15. Dr. McConnell performed the arthrodesis procedure, decompression of spinal cord and fusion of vertebrae, which required different skills than those of Dr. Kapusta.
  16. After submitting his claim under several other CPT codes, Dr. Kapusta ultimately submitted two claims for reimbursement: one was indicated as a vascular surgery (unlisted procedure) under CPT Code 37799 with modifier -51 (multiple procedures); the second claim submitted was for another vascular surgery (unlisted procedure) under the same CPT Code with modifier -62 (two surgeons). The total claim amount sought was $9,061.67.
  17. ___ denied payment to Dr. Kapusta, indicating the opening and closing for the spinal surgery were global to the surgery, could not be unbundled, and had already been paid.
  18. Under the Guideline, the modifier “-65″ signifies “co-surgeons,” who are defined as two surgeons who each performs separate procedures through the same incision.
  19. Surgery Ground Rule I.E.2.d. in the 1996 Guideline specifically provides that when an anterior arthrodesis approach is performed by a surgeon other than the orthopedic surgeon, both surgeons are to bill for the procedure using the anterior arthrodesis CPT code with modifier -65.
  20. Under Surgery Ground Rule I.E.2.a. in the 1996 Guideline a diskectomy is considered to be an arthrodesis procedure.
  21. On November 30, 2001, Dr. Kapusta sought medical dispute resolution from the Commission’s medical review division (MRD).
  22. The MRD considered Dr. Kapusta’s claim and issued its decision ordering reimbursement of $9,061.67 on February 12, 2002.
  23. On February 21, 2002, ___ appealed the MRD’s decision.
  24. The Commission sent a notice of hearing to the parties on March 25, 2002. The notice contained a statement of the time and place of the hearing, a statement of the legal authority and jurisdiction under which the hearing was to be held, a reference to the particular section of the statutes and rules involved, and a short plain statement of the matters asserted.
  25. A hearing was convened by Administrative Law Judge Ruth Casarez on September 9, 2002. Kevin Heyburn, Assistant Attorney General, represented ___ and Dr. Kapusta represented himself. The record of the hearing closed on September 23, 2002,with written arguments, but was reopened for a limited purpose. The record finally closed on November 18, 2002.

VI. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. 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(d) of the Act; Tex. Gov’t Code Ann. ch. 2003, and 28 Tex. Admin. Code (TAC) chs. 148 and 149.
  3. _____________ timely appealed the Commission’s Medical Review Division’s decision, pursuant to 28 TAC §148.3.
  4. The notice of hearing sent by the Commission complied with the requirements of Tex. Gov’t Code §2001.052 and of 28 TAC §148.4(b).
  5. Pursuant to §413.031 of the Act and 28 TAC §148.21(h) and (I), ___ had the burden of showing by a preponderance of the evidence that it should not be required to reimburse Dr. Kapusta for his services as was ordered by the MRD.
  6. Pursuant to § 408.021 of the Act, 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.
  7. The Commission’s 1996 Medical Fee Guideline (Guideline), adopted at 28 Tex. Admin. Code § 134.201 (repealed January 1, 2002), applies to the services rendered in this case.
  8. The Commission’s Guideline incorporates the Global Fee Concept which provides that procedures that are integral and necessary to a surgery are global and are not to be unbundled and billed separately.
  9. When a specific rule relates to the same subject matter that is covered in a general rule, the specific rule prevails as an exception to the general rule. Tex. Gov’t Code Ann. §311.026.
  10. When an anterior arthrodesis approach is performed by a different surgeon, both surgeons are to bill using the anterior arthrodesis CPT Code with the co-surgeon modifier -65. Surgery Ground Rule I.E.2.d. in the Commission’s Guideline.
  11. Pursuant to Surgery Ground Rule I.E.2.d., co-surgeons performing an anterior arthrodesis are required to bill using the CPT Code for the anterior arthrodesis procedure (in this case, 63090) with modifier -65.
  12. Based on Surgery Ground Rule I.E.2.d. in the 1996 Guideline, Dr. Kapusta is entitled to 75% of the MAR for the retroperitoneal approach with subsequent decompression of spinal cord procedure (CPT Code 63090) that was performed on Claimant on January 15, 2001.
  13. ____ should pay Dr. Kapusta 75% of $4,248 for the services rendered.

ORDER

It is hereby ordered that Petitioner, _____________ shall be required to reimburse Mario Kapusta, M.D., 75% of the maximum allowable reimbursement for the anterior arthrodesis approach with decompression of spinal cord (CPT Code 63090) that was performed on Claimant on January 15, 2001.

Signed this 2nd day of December 2002.

RUTH CASAREZ
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Stedman’s Medical Dictionary (Stedman’s), 27th Ed., indicates an “arthrodesis” is the stiffening of a joint by operative means; a binding together. “Anterior” means the surgery was performed through the patient’s front.↑
  2. See 28 Tex. Admin Code § 134.201, which adopted by reference the 1996 Guideline on April 1, 1996, (repealed effective January 1, 2002).↑
  3. The 1996 Guideline (p. 69) indicates modifier -62 is to be used in certain circumstances when the skills of two surgeons (usually with different skills) are required in the management of a specific surgical procedure. In such cases, modifier 62 should be added to the procedure code used to report the services by each surgeon.↑
  4. Stedman’s indicates an “approach” is the path or method used to expose the operative field during an operation.↑
  5. On October 9, 2002, Dr. Kapusta filed a response to UTS’closing argument. The response contained additional documentation that had not been presented at the hearing. UTS objected to the response, and on October 11, 2002, the ALJ disallowed it and ruled the record of the hearing closed as of September 23, 2002.↑
  6. Stedman’s defines a spinal fusion as an operative procedure to accomplish bony ankylosis (binding of bone) between two or more vertebrae. The orthopedic surgeons in this case billed some of the procedures under CPT Codes 22630, 22152, 22558, and 22820 (See C.R. pp. 51-53), indicating they reconstructed or fused certain lumbar vertebrae with bone graft or prefabricated material. (See 1996 Guideline pp. 84-85 for description of the specific CPT Codes).↑
  7. See C.R. p. 19.↑
  8. 1996 Guideline (p. 177) indicates CPT Code 63090 is for “vertebral corpectomy (vertebral body resection [cutting away of the front part of the vertebra as opposed to the arches]), partial or complete, transperitoneal or retroperitoneal approach with decompression of spinal cord, cauda equina or nerve root(s), lower thoracic, lumbar, or sacral; single segment.” The MAR is $ 4,248. CPT Code 63091 is used to show each additional segment performed.

    9. Stedman’s indicates “retroperitoneal approach” means the incision was external . . . to the peritoneum, which is the serous sac . . . that lines the abdominal cavity and covers most of the viscera contained therein.↑

  9. A good explanation of how the Global Service Data for Orthopaedic Surgery was developed and implemented may be found in ALJ Landeros’ Prehearing Order No. 6-Regarding Petitioner’s Right to Reimbursement . . . in Docket No. 453-97-2069.M4.↑
  10. Ten specific items are listed in the introduction of the Structure of the Data that are considered “generic” intraoperative services included in the global service package . . . . Item number 3 is the “surgical approach, with necessary identification, isolation and protection of anatomical structures, including hemostasis and nerve stimulation . . . .” Item number 9 is “closure of wound and repair of tissues divided for surgical exposure . . .”↑
  11. The 1996 Guideline (p. 68 ) indicates that modifier -51 is to be used to show that multiple procedures were involved. Multiple procedures are described in terms of being primary or secondary (or subsequent) and in terms of being performed through the same or different incision. If the secondary or subsequent procedure is an integral part of the primary procedure, the Guideline indicates no additional fee shall be reimbursed. (See 1996 Guideline p. 64).↑
  12. SeeTex. Gov’t Code Ann. § 311.026.↑
  13. See Decision and Order in SOAH Docket No. 453-98-1398.M4 where the ALJ found that use of modifier -65 was not appropriate because the specific procedure in dispute in that case was not a primary procedure, but the ALJ discussed that use of the modifier would be proper when billing for an anterior arthrodesis procedure, pursuant to Surgery Ground Rule I.E.2.d. In SOAH Docket No. 453-01-1460.M5, cited by Dr. Kapusta, neither party raised the applicability of Surgery Ground Rule I.E.2.d., and the ALJ did not consider it in the decision.↑
  14. See fn.8.↑