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At a Glance:
Title:
453-02-2646-m4
Date:
July 30, 2002
Status:
Medical Fees

453-02-2646-m4

July 30, 2002

DECISION AND ORDER

This case concerns whether a neurosurgeon who performed spinal decompression and fusion surgery can bill separately for two related procedures performed in 2001: (1) reconstruction of an area of the pelvis from which graft material was harvested for the fusion; and (2) preparation of bone taken from the spine during decompression, to be used as additional graft material in the fusion. The total amount in issue is $1,300.00.

The Administrative Law Judge (ALJ) concludes that the doctor is entitled to recover $400.00 for the pelvic reconstruction, but is not entitled to recover additional payment for the preparation of the spinal bone material.

I. Jurisdiction, Notice, and Procedural History

The Texas Workers’ Compensation Commission (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. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann. §413.031(d); Tex. Gov’t Code Ann. ch. 2003.

The Commission’s Medical Review Division (MRD) issued its decision March 7, 2002. Liberty Mutual Insurance Company (Liberty Mutual) requested an appeal. Proper and timely notice of the hearing was issued April 18, 2002. The hearing was convened June 3, 2002, with ALJ Bill Zukauckas presiding. Mahon B. Garry, Jr., appeared for Liberty Mutual, and Dr. Jacob Rosenstein, M.D., appeared by telephone on his own behalf. The Commission did not participate in the hearing. The hearing was adjourned, and the record closed, the same day.

Because of a family medical emergency that arose following the hearing in this case, Judge Zukauckas is away from the office indefinitely. ALJ Shannon Kilgore has rendered this decision following a complete review of the record, including the tape of the hearing and all documentary evidence.

II. Factual Background

The claimant in this case sustained a compensable back injury on___________. He suffered from compression of spinal cord nerves, as well as disc herniation.

Dr. Rosenstein performed surgery on September 28, 2001. He first performed a decompression procedure that involved the removal of some bone material from the spine. He then performed fusion operations to stabilize the spine, using both metal fusion cages and bone grafts.

Because he was performing a fusion at two levels of the spine, he needed a great deal of graft material. He derived the graft material from two sources: a site on the pelvis known as the “iliac crest,” and the bone material already removed from the spine in the decompression procedure.

After removing the graft material from the iliac crest, Dr. Rosenstein filled the resulting defect with a putty that hardens and allows the bone to grow into it. According to Dr. Rosenstein, this reconstruction procedure lessens the patient’s post-operative pain and blood loss associated with the donor site.

Dr. Rosenstein testified that many surgeons do not use material from the spine as part of the graft; rather, they throw away the spinal bone material, and therefore have to remove more bone from the iliac crest. Dr. Rosenstein stated that the spinal material takes up to 50 minutes of preparation B breaking into many small pieces of the right size B before it is ready to be used in the fusion.

Dr. Rosenstein’s bill for the surgery included codes for 13 different procedures. See Exhibit 1, p. 15. Included among those 13 services were:

  • the harvesting procedure at the pelvis (CPT Code 22820 - harvesting of bone autograph[1] through separate incision for spinal arthrodesis[2]);
  • the reconstruction of the iliac crest (CPT Code 27299 - unlisted procedure - pelvis);
  • the fusion procedures (CPT Codes 22625 and 22630 - arthrodesis); and
  • preparation of vertebral bone (CPT Code 22899 - unlisted procedure, spine).

Dr. Rosenstein billed $800.00 for the reconstruction of the iliac crest and $500.00 for the preparation of vertebral bone.

The MRD found for Dr. Rosenstein, stating that the pelvic reconstruction and bone preparation were not global to the primary procedures. The MRD ordered reimbursement in the amount of $1,300.00.

III. Discussion

There are three primary issues in this case:

Was the reconstruction of the iliac crest global to the harvesting procedure?

Liberty Mutual argues that the reconstruction, which Dr. Rosenstein billed under a generic code for the pelvis, was global to the harvesting procedure. Liberty Mutual points to the Global Service Data for Orthopaedic Surgery[3] from 1994, which lists generic services included in each operative procedure. One of those services is “surgical approach, with necessary identification, isolation and protection of anatomical structures, including hemostasis and nerve stimulation.” See Exhibit 2 (emphasis supplied). Because Dr. Rosenstein has stated that one benefit of the reconstruction is post-operative hemostasis, Liberty Mutual argues that this procedure therefore falls within the scope of services included in the global surgical package. The carrier also points to page 34 of the Global Service Data for Orthopaedic Surgery, which states that application of hemostatic material is global to a harvesting procedure. Finally, Liberty Mutual argues that the reconstruction falls within “closure of wound and repair of tissues divided for surgical exposure” -- another element of a global surgical service package, according to the Global Service Data for Orthopaedic Surgery.

Dr. Rosenstein asserts that since the reconstruction requires additional effort and time, and results in an improved post-operative course for the patient, it should be reimbursed separately. He testified that reconstruction of a bone defect is not the same as application of hemostatic material. He also testified that this reconstruction is different from, and more involved than, mere closure following the harvesting procedure.

Both parties suggest that under current guidelines, the reconstruction could be reimbursed separately.

The ALJ sees insufficient reason to disturb the determination of the MRD. The pelvic reconstruction undertaken by Dr. Rosenstein was not an element of surgical approach in the harvesting procedure. “Approach” is the surgical procedure by which access is gained to a bodily part. Merriam Webster’s Medical Dictionary, p. 43 (1995). Nor is the main purpose of the reconstruction procedure, according to the doctor, hemostasis; in fact, its chief purpose is to reduce post-operative pain. It is not the same as application of hemostatic material. And the ALJ is persuaded that this reconstruction procedure is different from closure or “repair of tissues divided for surgical exposure.” Therefore, the portions of the Global Service Data for Orthopaedic Surgery relied on by Liberty Mutual are not applicable.

The ALJ determines that Dr. Rosenstein is entitled to recover separately for the pelvic reconstruction procedure.

Was the preparation of bone graft material from the spine global to the fusion procedures?

Liberty Mutual argues that the preparation of the graft material, which was billed under a generic spinal code, was global to the fusion procedures. The carrier points to language in the 1994 Global Service Data for Orthopaedic Surgery that states, “Separate codes may be used for bone, cartilage, tendon, fascial and other tissue grafts, in addition to the primary procedure(s), if the grafts are obtained from a separate site and through a separate incision unrelated to the major operative incision. Separate codes for a tissue or bone graft cannot be used if a graft is listed as included in the code descriptor.” See Exhibit 2.

Dr. Rosenstein argues that most doctors do not use spinal material in the graft, and that preparing it is a slow and painstaking task that should be independently reimbursable.

Both parties seem to agree that under newer guidelines, not applicable here, the bone preparation would be separately billable.

The ALJ concurs with the carrier that the graft preparation, under the applicable guidelines, was global to the graft procedure itself. The codes used by Dr. Rosenstein for the fusion procedures- CPT Codes 22625 and 22630 B talk about the use of “local bone or bone allograft,” and therefore clearly contemplate the use of bone material. See Medical Fee Guideline, pp. 86, 102. It is common sense that bone graft material must undergo some readying process. The 1994 Global Service Data for Orthopaedic Surgery indicates that when graft material is taken from the area of the main procedure, it cannot be the subject of separate reimbursement. The ALJ sees no basis in the applicable guidelines for billing for spinal fusion operations involving grafts of spinal material, and then billing further for the preparation of the graft material.

What is the proper amount of reimbursement?

Liberty Mutual argues that even if any of the disputed services is reimbursable, Dr. Rosenstein must be paid 50% of the amount billed, because he billed CPT Codes 27299 and 22899 with the A-51" modifier, which indicates surgical procedures secondary to the major procedure. The multiple procedure reimbursement rule in the Medical Fee Guideline’s surgery ground rules provides that, as a general matter, secondary procedures are reimbursed at 50% of the maximum allowable reimbursement, which in the case of Codes 27299 and 22899 is whatever is documented in the bill. See Medical Fee Guideline, p. 64. The Medical Fee Guideline states that providers must bill their usual and customary charges. Id., p. 2.

Dr. Rosenstein testified that the amounts on his bills for procedures with the A-51" modifier represent 50% of his usual and customary charges. In other words, his fee has already been reduced by half.

The ALJ believes that proper application of the Medical Fee Guideline requires that the doctor’s billed amount be reduced by 50%. The ALJ is not fully persuaded that Dr. Rosenstein’s bill for Codes 27299 and 22899 in fact reflected only 50% of his usual and customary fee. If Dr. Rosenstein did reduce his billing for these services by half, he did so in contravention of the Guideline’s instructions.

Summary

Liberty Mutual must reimburse Dr. Rosenstein for the reconstruction of the iliac crest, CPT Code 27299-51. Dr. Rosenstein had billed $800.00 for this procedure, but since it was a secondary service, it is reimbursable at 50% of the amount billed. Therefore, Liberty Mutual must pay Dr. Rosenstein $400.00.

IV. Findings of Fact

  1. The workers’ compensation claimant in this case sustained a compensable back injury on _____________. He suffered from compression of spinal cord nerves, as well as disc herniation.
  2. Dr. Jacob Rosenstein, a neurosurgeon, performed surgery on the claimant on September 28, 2001. He first performed a decompression procedure that involved the removal of some bone material from the spine. He then performed fusion procedures to stabilize the spine, using both metal fusion cages and bone grafts.
  3. The graft material for the fusion procedures came from two sources: a site on the pelvis known as the “iliac crest,” and the bone material already removed from the spine in the decompression procedure.
  4. The bone material removed from the spine had to be broken into small pieces for use in the fusion operations.
  5. After removing the graft material from the iliac crest, Dr. Rosenstein filled the resulting defect with a putty that hardens and allows the bone to grow into it. This reconstruction procedure lessens the patient’s post-operative pain and blood loss associated with the donor site.
  6. The reconstruction of the iliac crest requires additional effort and time, and can result in an improved post-operative course for the patient.
  7. The chief purpose of the reconstruction of the iliac crest is to reduce post-operative pain; another purpose is to minimize post-operative bleeding.
  8. Dr. Rosenstein’s bill for the surgery included codes for 13 different procedures. Included among those 13 services are:
  9. the harvesting procedure at the pelvis (CPT Code 22820 - harvesting of bone autograph through separate incision for spinal arthrodesis);
  10. the reconstruction of the iliac crest (CPT Code 27299 - unlisted procedure B pelvis);
  11. the fusion procedures (CPT Codes 22625 and 22630 - arthrodesis); and
  12. preparation of vertebral bone (CPT Code 22899 - unlisted procedure, spine).
  1. Dr. Rosenstein billed the reconstruction of the iliac crest and the preparation of vertebral bone with the A-51" modifier, indicating secondary procedures.
  2. The carrier, Liberty Mutual Insurance Company (Liberty Mutual), denied reimbursement for the reconstruction of the iliac crest and the preparation of vertebral bone on the grounds that these services were global to the harvesting and fusion operations.
  3. Dr. Rosenstein filed a Request for Medical Dispute Resolution with the Commission’s Medical Review Division (MRD).
  4. The Commission’s Medical Review Division (MRD) issued its decision March 7, 2002. The MRD found for Dr. Rosenstein, stating that the pelvic reconstruction and bone preparation were not global to the primary procedures.
  5. Liberty Mutual requested an appeal of the MRD decision.
  6. Proper and timely notice of the hearing was issued April 18, 2002.
  7. 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.
  8. The hearing was convened June 3, 2002, with ALJ Bill Zukauckas presiding. The record closed the same day.

V. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to §413.031 of the Texas Workers' Compensation Act (the Act). See Tex. Lab. Code ch. 401 et seq.
  2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order in this case. Tex. Lab. Code Ann. § 413.031(d); Tex. Gov’t Code ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with the Texas Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
  4. Liberty Mutual has the burden of proof in this matter. 28 TAC §148.21(h).
  5. At the time of this surgery, the 1994 Global Service Data for Orthopaedic Surgery was applicable. The Global Service Data for Orthopaedic Surgery is referenced on an unnumbered page at the beginning of the Medical Fee Guideline, which is incorporated by reference in the Commission’s rules. 30 Tex. Admin. Code §134.201.
  6. Based on Findings of Fact 2, 3, and 5 - 8, the reconstruction of the iliac crest (CPT Code 27299) was not global to the harvesting procedure (CPT Code 22820) under the Medical Fee Guideline and the 1994 Global Service Data for Orthopaedic Surgery.
  7. Based on Findings of Fact 2, 3, 4, and 8, the preparation of the vertebral bone removed during decompression and to be used as graft material (CPT Code 22899) was global to the fusion procedures (CPT Codes 22625 and 22630) under the Medical Fee Guideline and the 1994 Global Service Data for Orthopaedic Surgery.
  8. Based on Finding of Fact No. 9, reimbursement for the pelvic reconstruction procedure should be reduced by 50%, pursuant to the multiple procedure reimbursement rule in the Medical Fee Guideline’s surgery ground rules.

ORDER

IT IS, THEREFORE, ORDERED that Liberty Mutual Insurance Company reimburse Jacob Rosenstein, M.D., $400.00 for surgical services rendered to the workers’ compensation claimant on September 28, 2001.

Signed this 30th of July, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

SHANNON KILGORE
Administrative Law Judge

  1. “Autograft” refers to tissue transplanted from one part to another part of the same body.
  2. “Arthrodesis” refers to the surgical immobilization of a joint, or in this case the fusion procedures.
  3. This document is listed in the Medical Fee Guideline (on an unnumbered page at the beginning entitled “TWCC and the Importance of Proper Coding”) as an example of global service surgery coding guidelines to be applied to workers’ compensation billing. See 30 Tex. Admin. Code § 134.201(Commission’s rule adopting the Medical Fee Guideline by reference). The parties agree that the 1994 Global Service Data for Orthopaedic Surgery was in effect at the time of the surgery in this case.
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