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Title: 

453-02-3654-m4

Date: 

November 6, 2002

Type: 

Medical Fees

453-02-3654-m4

DECISION AND ORDER

I. Introduction

Waco Ortho Rehab (Provider) has appealed an order of the Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD) directing it to refund $4,375 to Argonaut Midwest Insurance Company (Carrier).

The only disputed issues are:

  • May muscle testing services be billed in three unit increments for one compensable injured body part;
  • May MRD, on its own initiative, review and order a refund for services not disputed by the Carrier;
  • If MRD may order such a refund, is the Provider entitled to a hearing at MRD before MRD orders a refund;
  • Did the Provider document that the therapeutic services it provided to the Claimant required a one-to-one setting; and
  • If not, what is the appropriate level of reimbursement for the therapeutic services that the Provider furnished the Claimant.

As set out below, the Administrative Law Judge (ALJ) finds:

  • Muscle testing services may be billed in three unit increments;
  • MRD on its own initiative may review and order a refund for services not disputed by the Carrier;
  • When MRD orders such a refund, the Provider is entitled to hearing at SOAH but not before MRD;
  • The Provider did not document that the therapeutic services it provided to the Claimant required a one-to-one setting; and
  • The Provider should be reimbursed for those therapeutic services at a group setting rate.

Accordingly, the ALJ orders the Carrier to reimburse the Provider $43 for each of the three units of muscle testing that it provided to the Claimant’s wrist on June 14, 2001. The ALJ also finds that the Provider should have been reimbursed $4,077 for the therapeutic services that it provided to the Claimant and orders the Provider to refund $928 to the Carrier, which amount Carrier overpaid.

II. Muscle Testing

On June 14, 2001, the Provider furnished three units of muscle testing, CPT code 97750-MT, to one of the Claimant’s body areas, his wrist. The Provider billed the Carrier for those services. The Carrier objected, contending that the billing was excessive and that it should only be required to pay for one unit of testing. MRD agreed with the Carrier and ordered the Carrier to reimburse the Provider only $43 for one unit of muscle testing.

This issue boils down to an interpretation of the Commission’s 1996 Medical Fee Guideline (MFG),[1] which states at page 35:

Muscle testing (97750-MT) requires a report identifying the service provided, results, and interpretation of the test and shall be reimbursed per body area (see section (I)(D)(1) of the ground rules for this section). If two or more contiguous areas are injured and if testing requires no additional tasks, then reimbursement shall be allowed for only one body area. . . .

At page 60, however, the MFG describes CPT code 97750 as “physical performance test or measurement (e.g musculoskeletal, functional capacity) with written report, each 15 minutes . . . .”

In prior cases, SOAH ALJ’s have interpreted these MFG provisions as allowing reimbursement for more than one 15-minute unit of muscle testing for the same body area, if otherwise reasonable and necessary, rather than just one unit of testing per body area.[2] This ALJ agrees. Moreover, there is no claim that the three units of muscle testing were either unnecessary or unreasonable to treat the compensable injury.

The Carrier shall reimburse the Provider $43 for each of the three units of 97750 muscle testing that it provided to the Claimant’s wrist on June 14, 2001.

III. MRD’s Jurisdiction to Review and Order a Refund for

Services Not Disputed by a Carrier

The Provider furnished eight units of therapeutic services to the Claimant on each of 17 days during the period from June 26, 2001 through August 3, 2001, and seven units on August 1, 2001. The Provider billed for those services as Current Procedural Terminology (CPT) Code 97110, one-to-one services. Without dispute, the Carrier paid the Provider a total of $5,005 for those services. However, when MRD reviewed other disputes between the Carrier and the Provider for services furnished in that same time frame, MRD also examined the therapeutic services, found that they were inadequately documented as one-to-one services and ordered the Provider to refund $4,375 to the Carrier. MRD did not question the necessity of the services. Its order allowed the Provider to be reimbursed for one unit of therapeutic services per service date.

Because the Carrier had not disputed the 97110 services, the Provider argues that MRD had no jurisdiction to review them or order a refund as to them. Hence, Provider asks the ALJ to reverse MRD’s order as to those services. The Carrier responds, as MRD stated in its order, that MRD has broad jurisdiction to order reimbursements. The ALJ agrees that MRD has that jurisdiction. In fact, the Labor Code requires MRD to “order a refund of charges paid to a health care provider in excess of those allowed by the medical policies or fee guidelines.”[3] No law restricts the MRD’s authority to situations when the Carrier first objects.

IV. Right to a Refund Order Dispute Hearing Before MRD

Even if the MRD has the authority to order a refund, the Provider argues that it is entitled to notice and a hearing before MRD so orders. Because it was not given such a notice and hearing at MRD, the Provider argues that SOAH has no jurisdiction at this time.

It certainly is true that the Provider is entitled to a hearing before some tribunal concerning MRD’s refund order. Under applicable Administrative Procedure Act (APA) provisions, each party is entitled to an opportunity for hearing after reasonable notice of not less than ten days and to respond to and to present evidence and argument on each issue involved in the case.[4] A party to a medical dispute is entitled to a SOAH APA hearing if the dispute remains unresolved after a review of the service.[5]

On October 14, 2002, the SOAH ALJ conducted such an APA hearing on the Provider’s dispute of the MRD order concerning the therapeutic services. The hearing was held after the Provider, the Carrier, and the TWCC Staff were given notice, on July 24, 2002, of the date and time when and the place where the hearing would occur. The notice indicated that the hearing was being held on the request of the Provider, which TWCC received on June 26, 2002. In that request, the Provider referenced the MRD order directing the Provider to reimburse the Carrier for the disputed therapeutic services and asserted that the order contained errors. Thus, the chain of references in

those documents sufficiently informed the parties that MRD’s ordering the Provider to refund most the Provider’s payment for the therapeutic services would be considered at the October 14, 2002, SOAH hearing. At the hearing, the Provider was given an opportunity to respond to MRD’s assertion that the Provider overcharged for those services and to present evidence and argument thereon.

Was the Provider entitled to an MRD hearing on the refund order before the SOAH hearing? The Labor Code provides that a provider is entitled to a “review” of a medical service provided if the provider “is ordered by the commission to refund a payment received.” Since that statute says “is ordered” rather than “before provider is ordered,” the ALJ concludes that the review occurs after, not before the order is issued. But the Labor Code does not indicate that MRD is to conduct that post-order review, much less a hearing. The Labor Code also states that a provider who submits a charge in excess of the fee guidelines or treatment policies is entitled to a review of the medical service to determine if reasonable medical justification exists for the deviation.[6] The commission is required to adopt rules to notify claimants of their hearing rights thereunder.[7]

Under the Commission’s implementing rules,[8] a dispute by the provider stemming from a Commission ordered refund is a “refund order dispute,” which is a type of “medical fee dispute”[9] The rules also set out procedures for filing such a medical fee dispute and responses.[10] The rules indicate that the Commission shall send its medical-fee-dispute decisions to the parties,[11] but they do not specify that the Commission staff will hold a hearing when a provider disputes an MRD refund order.

Classic principles of statutory construction are used to interpret rules.[12] The object sought to be attained, the circumstances under which the rule was enacted, and the rule-adoption history may be considered.[13] In this case, the Commission’s intent is clear from the history of the rule’s adoption. In its preamble to its adoption of its implementing rules, the Commission stated:

The [MRD] reviews the documents and determines if the dispute is . . . a commission refund order dispute and will advise the parties to pursue resolution at the State Office of Administrative Hearings (SOAH).[14]

Thus the Commission’s interpretation is that there is to be only one hearing on such refund order disputes, and that hearing is to occur at SOAH. Having considered that history and intent, the ALJ concludes that the Provider was not entitled to an MRD hearing on the refund-order dispute and this case is properly before SOAH at this time.[15]

V. One-to-One Setting for Exercise Services

The Provider billed for those services as CPT code 97110, one-to-one services. The Carrier paid the Provider a total of $5,005 for therapeutic services. MRD found that there was insufficient documentation indicating who conducted the one-to-one services or why the Claimant required services on a one-to-one basis, rather than in a group setting. The Carrier stands behind MRD’s decision. The Provider argues that its documentation was sufficient.

For each service date, the Provider’s subjective objective assessment plan (SOAP) documents state: “THERAPEUTIC PROCEDURES: (97110, per TWCC MFG, p. 32, One to One Setting . . .)”[16] Additionally, for each date of service the Provider furnished a Therapeutic Procedures Chart, which indicated that the services were provided, described those services, and was initialed by the Provider employee by whom the service was provided.[17]

These documents do not indicate, however, why the Claimant needed more expensive one-to-one services, essentially a personal trainer. To that extent the ALJ, agrees with MRD and finds that the Provider owes a reimbursement to the Carrier. Curiously, however, MRD allowed the Provider to keep $35 per service date for one unit of service at the one-to-one rate and required it to reimburse the rest that Carrier had paid. The ALJ cannot understand MRD’s reasoning.

Nothing indicates that any one-to-one services were necessary. On the other hand, neither MRD nor the Carrier contends that no exercise services were needed. The problem is the rate of compensation. The ALJ concludes that the Provider should be reimbursed for the services at the less expensive CPT code 97150 group therapeutic procedure rate, essentially an exercise class rate. At the time the services were provided, 97150 services were reimbursed at $27 per unit, while 97110 services were reimbursed at $35 per hour.[18]

The ALJ concludes that the Provider should have been reimbursed $4,077[19] for the therapeutic services and directs the Provider to refund $928 to the Carrier, which amount it overpaid.

VI. Findings of Fact

  1. ___ (Claimant) sustained a work-related injury on________, while his employer was ________ and its workers’ compensation insurance carrier was Argonaut Midwest Insurance Company (Carrier).
  2. On June 14, 2001, the Provider furnished three units of muscle testing, CPT code 97750-MT, to one of the Claimant’s body areas, his wrist. The Provider billed the Carrier for those services.
  3. The Carrier objected to the muscle-testing bill, contending that the billing was excessive and that it should only be required to pay for one unit of testing.
  4. The Provider filed a request for medical dispute resolution with the TWCC concerning the muscle testing fee dispute.
  5. MRD agreed with the Carrier and ordered it to reimburse the Provider only $43, the maximum allowable reimbursement for one unit of muscle testing.
  6. To treat the compensable injury, the Provider also furnished eight units of therapeutic exercise services to the Claimant on each of 17 days during the period from between June 26, 2001, through August 3, 2001, and seven units on August 1, 2001.
  7. The Provider billed the Carrier for those therapeutic services as Current Procedural Terminology (CPT) Code 97110, one-to-one services, essentially a personal trainer.
  8. Without dispute, the Carrier paid the Provider a total of $5,005 for the therapeutic services.
  9. For each date on which the therapeutic services were provided, the Provider’s subjective objective assessment plan (SOAP) documents stated: “THERAPEUTIC PROCEDURES: (97110, per TWCC MFG, p. 32, One to One Setting . . .)”
  10. For each date on which the therapeutic services were provided, the Provider’s Therapeutic Procedures Chart indicated that the services were provided, described the services, and was initialed by the Provider’s employee by whom the service was provided.
  11. Therapeutic services can also be provided in a group setting, essentially an exercise class, under CPT code 97150.
  12. At the time the therapeutic services were provided, 97150 services were reimbursed at $27 per unit, while 97110 services were reimbursed at $35 per hour.
  13. While reviewing other disputes between the Carrier and the Provider, MRD concluded that the Provider had furnished insufficient documentation to the Carrier to show who conducted the one-to-one therapeutic services or why the Claimant required services on a one-to-one basis, rather than in a group setting.
  14. On June 24, 2002, MRD ordered the Provider to refund $4,375 to the Carrier for the therapeutic services.
  15. The Provider appealed the MRD refund order to the State Office of Administrative Hearings (SOAH).
  16. Notice of an October 14, 2002 hearing in this case was mailed to the Carrier, the Provider, and the TWCC Staff on July 24, 2002.
  17. On October 14, 2002, William G. Newchurch, an Administrative Law Judge (ALJ) with SOAH held a hearing on the Carrier’s appeal at the William P. Clements Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on that same day.
  18. The Carrier appeared at the hearing through its attorney, Shane Thompson.
  19. The Provider appeared at the hearing through its attorney, Scott C. Hillard
  20. The TWCC Staff did not appear.

VII. Conclusions of Law

  1. 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 Tex. Labor Code Ann. §§ 402.073(b) and 413.031(k) (West 2002) and Tex. Gov’t Code Ann. ch. 2003 (West 2001).
  2. Adequate and timely notice of the hearing was provided in accordance with Tex Gov’t. Code Ann. §§ 2001.051 and 2001.052.
  3. As the appealing party, the Provider has the burden of proof in this matter. 1 Texas Administrative Code § 155.41(b); 28 TAC §148.21(h) (2002).
  4. 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. Tex. Labor Code § 408.021 (a).
  5. The Commission’s 1996 Medical Fee Guideline allows a health care provider to charge for each 15-minute unit of testing within each body area. 28 TAC § 134.201.
  6. Based on the above Findings of Fact and Conclusions of Law, the Carrier should reimburse the Provider $43 for each of the three units of 97750 muscle testing that it provided to the Claimant’s wrist on June 14, 2001.
  7. A party to a medical dispute is entitled to a SOAH APA hearing on an MRD refund order if the dispute remains unresolved after a review of the service. Labor Code §413.031(k).
  8. A provider is entitled to a review of a medical service provided if the provider “is ordered by the commission to refund a payment received.” Labor Code §413.031(a)(3).
  9. A health care provider who submits a charge in excess of the fee guidelines or treatment policies is entitled to a review of the medical service to determine if reasonable medical justification exists for the deviation. The commission is required to adopt rules to notify claimants of that right. Labor Code ‘413.031(b).
  10. The Commission’s rules implementing Labor Code § 413.031:

a.Provide that a dispute by the provider stemming from a Commission order to refund is a “refund order dispute,” which is a type of “medical fee dispute”;

b.Set out procedures for filing such a dispute and responses; and

c.Indicate that the Commission shall send its medical-fee-dispute decisions to the parties; but

d.Do not state that the Commission staff will reconsider the provider’s dispute of a refund order. 28 TAC §§ 133.305(a)(2)(D) and 133.307.

  1. The object sought to be attained by a rule, the circumstances under which rule was enacted, and the rule adoption history may be considered in construing a rule. Gov’t Code §§311.002(4) and 311.023(1)-(3).
  2. The Commission intends that parties pursue resolution of a refund order dispute at SOAH. 26 Tex. Reg. 10934 (Jan. 2, 2002).
  3. Based on the above Conclusions of Law, a Provider is entitled a hearing on a refund order dispute solely at SOAH and not at MRD.
  4. The above Findings of Fact do not indicate why the Claimant needed expensive one-to-one therapeutic services, essentially a personal trainer, to treat the compensable injury.
  5. Based on the above Findings of Fact and Conclusions of Law, the Provider should have been reimbursed for the therapeutic services it provided the Claimant at the less expensive CPT code 97150, group therapeutic procedure rate, essentially an exercise class rate.
  6. Based on the above Findings of Fact and Conclusions of Law, the Provider should have been reimbursed $4,077 for the June 26, 2001 through August 3, 2001 therapeutic services and should refund $928 to the Carrier.

ORDER

IT IS ORDERED THAT:

  1. The Carrier shall reimburse the Provider $43 for each of the three units of 97750 muscle testing that it provided to the Claimant’s wrist on June 14, 2001.
  2. The Provider shall refund $928 to the Carrier that it overpaid for the June 26, 2001 through August 3, 2001 therapeutic services.

Signed November 6, 2002

STATE OFFICE OF ADMINISTRATIVE HEARINGS

WILLIAM G. NEWCHURCH
Administrative Law Judge

  1. Adopted by reference at 28 Texas Administrative Code §134.201, and remaining effective for services provided prior to September 1, 2002. See 28 TAC § 134.202.↑
  2. 453‑02‑0971.M4 (Jun. 28, 2002) (ALJ Card); 453‑02‑2508.M4 (Sep. 11, 2002) (ALJ Lynch).↑
  3. Labor Code §413.016(a).↑
  4. Labor Code§401.021(1)(B) makes Gov’t Code §§2001.051 and 2001.052 applicable.↑
  5. Labor Code§413.031(k).↑
  6. Labor Code§413.031(b).↑
  7. Labor Code§413.031(b).↑
  8. 28 TAC§§ 133.305 and 133.307.↑
  9. 28 TAC §§ 133.305(a)(2)(D).↑
  10. 28 TAC §§ 133.307.↑
  11. 28 TAC §§’133.307 (n).↑
  12. Gov’t Code§ 311.002(4).↑
  13. See Gov’t Code § 311.023(1)-(3).↑
  14. 26 Tex. Reg. 10934 (Jan. 2, 2002).↑
  15. See SOAH Docket NO. 453-02-2706.M4 (ALJ Landeros), in accord as to SOAH’s procedure.↑
  16. E.g. Ex. 1, p. 61.↑
  17. E.g Ex. 1, pp. 45 and 46.↑
  18. E.g. Ex. 1, p. 127.↑
  19. $27 x [(18 day x 8 units)+(1 day x 7 units]↑