DECISION AND ORDER

Petitioner Spence Sloane, D.C., is seeking $11,169.60in reimbursement for various services. The bulk of that claim is for work hardening; the remainder is for data analysis, electrodiagnostic testing, and myofascial release or soft tissue mobilization.

For the reasons discussed below, the Administrative Law Judge (ALJ) concludes Dr. Sloane should be reimbursed $1,038.00 for data analysis on three dates of service and for testing conducted November 17, 2000. He concludes the rest of Dr. Sloane’s claim should be denied.

I. Factual Background and Procedural History

The Claimant was severely injured on_____, when his right hand, wrist, and forearm were crushed in a metal press. He underwent surgery, physical therapy, various other treatments and tests, and ultimately work hardening. The surgery and treatments did not totally restore his hand, wrist, and arm functions, but did improve them significantly.

Reliance Insurance Company (Reliance) paid for much of the treatment but refused to pay for some services. On October 3, 2001, Dr. Sloane, who was the Claimant’s treating physician, filed a Request for Medical Dispute Resolution with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or the Commission). The disputed dates of service, as set out in the request, were from August 22, 2000, through May 21, 2001. Reliance at some point went bankrupt, leaving TPCIGA as the responsible carrier.

The MRD declined to review any dates of service before October 2, 2000, because of its one-year filing rule. It ordered TPCIGA to pay $640.00 of the amount in dispute.

Both Dr. Sloane and TPCIGA filed requests for hearing before SOAH. After notice to all parties, the hearing was held November 25, 2002, with ALJ Henry D. Card presiding and representatives of both Dr. Sloane and TPCIGA participating. The record was closed November 27, 2002, after submission of case citations and related arguments by both sides.

At the hearing, TPCIGA waived its appeal, and Dr. Sloane waived some of his claims, leaving the following four groups of services in dispute:

Description and CPT Code(s)Date(s) of ServiceAmount in Dispute

data analysis 10-18-00 $ 432.00

99090 01-02-01

02-15-01

02-20-01

2)various diagnostic tests 11-17-00 $1,239.00

95925

95935

95900

95904

95860

3)myofascial release/11-27-00 $129.00

soft tissue mobilization 12-04-00

97250-59 12-18-00

4)work hardening services beginning 04-03-01; $ 9,369.60

97545-WH ending 05-21-01^[1]

97546-WH

Total: $11,169.60

II. Discussion

A. CPT Code 99090 (Data Analysis)

Reliance denied recovery for CPT Code 99090 on the four dates of service as “unnecessary treatment.” The MRD considered them inadequately documented, and did not consider whether they were necessary.

Dr. Sloane testified that on those dates he compared computer test data for the Claimant and prepared reports showing the Claimant’s progress. The reports may be found in Exhibit 1, pages 197-224. TPCIGA responded that under the 1996 Medical Fee Guideline, page 32, testing for CPT Codes 97700-97750 includes reports of those tests; the reports are not to be reimbursed separately.

The reports are documented in the record. The evidence also shows they were necessary for the Claimant’s treatment. Review of the HCF’s in the record shows that only one of the reports was associated with the CPT Codes 97700-97750. On the other three dates, Dr. Sloane did not seek reimbursement for both a test and data analysis. Therefore, he should be reimbursed for those three analyses, in the amount of $324.00 ($108.00 x 3).

B. CPT Codes 95925,95935, 95900, 95904, and 95860 (Various Diagnostic Tests)

Reliance denied reimbursement for these tests, which were conducted November 17, 2000, because it considered them outside the treatment guidelines and inadequately documented. The MRD found all but one (95925) were within the treatment guidelines, but did not find adequate documentation that the services were rendered.

At the hearing, Dr. Sloane provided adequate documentation that the tests were conducted by Jonathan E. Walker, M.D., on the dates in question. Ex. 2. Dr. Walker’s report establishes that they were necessary for the Claimant’s treatment. TPCIGA did not continue to dispute the documentation or necessity of the services, but argued that reimbursement should not be provided because Dr. Sloane listed himself, not Dr. Walker, as the providing physician on the request for reimbursement, which is contrary to the Commission’s instructions for completing the form.

Although TPCIGA is correct about the instructions, it was not harmed by that administrative error. The tests were still performed and still were necessary for the Claimant’s treatment; they were requested under the proper CPT codes. Given those circumstances, they should be reimbursed.

Dr. Sloane requested $700.00 in reimbursement for CPT Code 95925. The description for that code under the Medical Fee Guideline is “somatosensory testing (e.g., cerebral evoked potentials), one or more nerves” and the maximum allowable reimbursement is $175.00. Even if more than one nerve was tested, reimbursement is limited to $175.00. Therefore, Dr. Sloane should be reimbursed for the tests in question in the amount of $714.00. That is the amount requested for the other tests, plus the $175.00 for CPT code 95925.

C. CPT Code 97250-59 (Myofascial release/Soft Tissue Mobilization)

The MRD found, and Dr. Sloane agreed at the hearing, that “59” is not a valid TWCC billing suffix. Reimbursement should be denied.

D. CPT Codes 97545-WH and 97546-WH (Work Hardening)

“Work hardening” is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work.

Work Hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. . . . 1996 Medical Fee Guideline, p. 37

Reliance generally denied reimbursement for the work hardening program. For most of the dates of service, the denial was based at least partly on the inadequacy of the documentation. At the hearing, Dr. Sloane stated that Southwest Behavioral Health, which had provided the group therapy component of the Claimant’s work hardening program, had utterly failed to document those sessions.^[2] The ALJ finds TPCIGA should not be required to reimburse Dr. Sloane for those dates of service.

Toward the middle of the work hardening program, for eight dates of service, Reliance ceased using the “not documented” explanation for denial of reimbursement and used only codes “V” or “U,” which mean the services were not necessary.^[3] Dr. Sloane argued he should at least be reimbursed for those dates of service.

Ordinarily, under the TWCC rules as interpreted by past SOAH decisions, the carrier is limited to the reimbursement codes set out in its explanations of benefits (EOBs) and cannot raise new bases for denial after a request for medical dispute resolution has been filed. See, e.g. Docket No. 453-96-1446.M4, Liberty Mutual Fire Insurance Company v. Texas Workers’ Compensation Commission and Nervchek (Nov. 12, 1996) (Judge Corbett) and Docket No. 453-97-0973.M4, Naehritz v. Texas Workers’ Compensation Commission and Texas Workers’ Compensation Insurance Fund (May 14, 1998) (Judge Card). This case is unusual, however, because Reliance had consistently identified documentation problems for several dates of service before temporarily abandoning that practice.

The procedural framework adopted by the Commission is designed to ensure health care providers receive accurate explanations for denials of payment. In this case, Dr. Sloane had already been made aware of the documentation problems with the work hardening program. No harm resulted from Reliance’s miscoding, because the EOBs for other dates of service had identified the lack of adequate documentation. Given that fact, and the fact that the documentation admittedly was not available, the ALJ concludes TPCIGA should not be penalized for the inadequacy of some of the EOBs for this ongoing program. He concludes Dr. Sloane should not be reimbursed for any of the work hardening dates of service, because of the lack of documentation for the behavioral component of the program.

TPCIGA alleged several other billing and documentation problems with the work hardening program. Because the ALJ has determined that reimbursement should be denied, he does not address those issues.

III. Findings of Fact

1. The Claimant was severely injured on_____, when his right hand, wrist, and forearm were crushed in a metal press.
2. The Claimant underwent surgery, physical therapy, various other treatments and tests, and ultimately work hardening.
3. The surgery and treatments did not totally restore the Claimant’s hand, wrist, and arm functions, but did improve them significantly.
4. Reliance paid for much of the treatment but refused to pay for some services.
5. On October 3, 2001, Dr. Sloane, who was the Claimant’s treating physician, filed a Request for Medical Dispute Resolution with the MRD.
6. The disputed dates of service, as set out in the request, were from August 22, 2000, through May 21, 2001.
7. Reliance at some point went bankrupt, leaving TPCIGA as the responsible carrier.
8. The MRD declined to review any dates of service before October 2, 2000, because of its one-year filing rule. It ordered TPCIGA to pay $640.00 of the amount in dispute.
9. Both Dr. Sloane and TPCIGA filed requests for hearing before SOAH.
10. Notice of the hearing was sent to all parties June 20, 2002.
11. 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.
12. The hearing was held November 25, 2002, with ALJ Henry D. Card presiding and representatives of both Dr. Sloane and TPCIGA participating.
13. The record was closed November 27, 2002, after submission of case citations and related arguments by both sides.
14. At the hearing, TPCIGA waived its appeal, and Dr. Sloane waived some of his claims, leaving the following four groups of services in dispute:

Description and CPT Code(s)Date(s) of ServiceAmount in Dispute

1)data analysis 10-18-00 $ 432.00

99090 01-02-01

02-15-01

02-20-01

2)various diagnostic tests 11-17-00 $1,239.00

95925

95935

95900

95904

95860

3)myofascial release/ 11-27-00 $129.00

soft tissue mobilization 12-04-00

97250-59 12-18-00

4)work hardening services beginning 04-03-01; $9,369.60

97545-WH ending 05-21-01

97546-WH

Total: $11,169.60

CPT Code 99090 (Data Analysis)

1. Reliance denied recovery for CPT Code 99090 on the four dates of service as “unnecessary treatment.” The MRD considered them inadequately documented, and did not consider whether they were necessary.
2. On the four disputed dates of service under CPT Code 99090, Dr. Sloane compared computer test data for the Claimant and prepared reports showing the Claimant’s progress.
3. The reports were documented and were necessary for the Claimant’s treatment.
4. Under the 1996 Medical Fee Guideline, page 32, testing for CPT Codes 97700-97750 includes reports of those tests; the reports are not to be reimbursed separately.
5. Only the February 20, 2001, report was associated with one of the CPT Codes 97700-97750.

CPT Codes 95925,95935, 95900, 95904, and 95860 (Various Diagnostic Tests)

1. Reliance denied reimbursement for tests conducted November 17, 2000, for which reimbursement was sought under CPT Codes 95925, 95935, 95900, 95904, and 95860, because it considered the tests to have been outside the treatment guidelines and inadequately documented.
2. The MRD found all but one test (95925) were within the treatment guidelines, but did not find adequate documentation that the services were rendered.
3. Dr. Sloane provided adequate documentation that the tests were conducted by Jonathan E. Walker, M.D., on the dates in question.
4. Dr. Walker’s report establishes the tests were necessary for the Claimant’s treatment.
5. Dr. Sloane listed himself, not Dr. Walker, as the providing physician on the request for reimbursement, contrary to the Commission’s instructions for completing the form.
6. TPCIGA was not harmed by the administrative error in completing the form.
7. The tests were performed and were necessary for the Claimant’s treatment.
8. The tests were requested under the proper CPT codes.
9. Dr. Sloane requested $700.00 in reimbursement for CPT Code 95925.
10. The description for CPT Code 95925 under the Medical Fee Guideline is “somatosensory testing (e.g., cerebral evoked potentials), one or more nerves”and the maximum allowable reimbursement is $175.00.

CPT Code 97250-59 (Myofascial release/Soft Tissue Mobilization)

The suffix “59” is not a valid TWCC billing suffix.

CPT Codes 97545-WH and 97546-WH (Work Hardening)

1. Southwest Behavioral Health, which provided the group therapy component of the Claimant’s work hardening program, utterly failed to document those sessions.
2. Towrd the middle of the work hardening program, for eight dates of service, Reliance ceased using the “not documented explanation for denial of reimbursement and used only codes AV” or “U,” which mean the services were not necessary.
3. Reliance had consistently identified documentation problems for the work hardening program for several dates of service before temporarily abandoning that practice.
4. No harm resulted from Reliance’s miscoding, because the EOBs for other dates of service had identified the lack of adequate documentation.

IV. Conclusions of Law

1. 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.
2. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
3. Dr. Sloane has the burden of proof in this matter. 28 Tex. Admin. Code (TAC) §148.21(h).
4. Dr. Sloane should not be reimbursed for the data analysis for February 20, 2001.
5. Dr. Sloane should be reimbursed for the other three analyses for which reimbursement was sought under CPT Code 99090, in the amount of $324.00 ($108.00 x 3).
6. Dr. Sloane should be reimbursed for the amounts requested under CPT Codes 95935, 95900, 95904, and 95860, plus $175.00 for CPT Code 95925, for a total reimbursement for those codes of $714.00.
7. Dr. Sloane should not be reimbursed for services for which he sought payment under CPT Code 97250-59.
8. “Work hardening” is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Work Hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. . . . 1996 Medical Fee Guideline, p. 37
9. Dr. Sloane should not be reimbursed for any of the work hardening dates of service.
10. Dr. Sloane should be reimbursed a total of $1,038.00 for the services at issue in this case.

ORDER

IT IS, THEREFORE, ORDERED that TPCIGA shall reimburse Spencer Sloane, D.C.,

$1,038.00 for the services at issue in this case.

Signed this 15^th day of January, 2003.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

Henry D. Card
Administrative Law Judge

1. For reasons not explained, Reliance paid for work hardening services for May 14-16, 2001.↑
2. Dr. Sloane no longer uses that provider for those services.↑
3. It resumed using the “not documented” code for the final few dates of service.↑