DECISION AND ORDER

This case involves a cross-appeal of the decision of the Medical Review Division (MRD) of Texas Workers’ Compensation Commission (TWCC). The dispute involves reimbursement of a total of $2,549.00 in claimed services rendered during the period November 16, 2001, through January 7, 2002 (Treatment Period).

Main Rehab and Diagnostic (Provider) appeals the MRD’s denial of reimbursement for $1,540.00 in joint mobilization services (CPT code 97110) provided during the Treatment Period. Texas Mutual Insurance Company (Insurer) appeals the MRD’s approval of $1,009.00 in other services rendered by Provider during this same period.

The Administrative Law Judge (ALJ) denies the appeal of Provider and grants the appeal of Insurer, concluding that Provider is not entitled to reimbursement for any of the disputed services.

I.JURISDICTION, BACKGROUND FACTS,

AND PROCEDURAL HISTORY

Jurisdiction was not disputed and is addressed in the Findings of Fact and Conclusions of Law. Claimant, M.B., was initially injured on April 17, 2001, during the course of his employment. Claimant was injured a second time on September 11, 2001, in another employment related event.^[1] The second injury exacerbated Claimant’s pain in his neck and low back. The claimant was seen by a number of health care providers and received a number of diagnostic evaluations.^[2]

On November 15, 2001, Claimant was seen by Osler Kamath, D.C., in the office of Provider. Dr. Kamath determined that Claimant had radiculitis, lumbar segmental dysfunction, and cervical segmental dysfunction.^[3]

Claimant remained in the care of Dr. Kamath through October 7, 2002, a period of about eleven months. During that time, Dr. Kamath provided Claimant with a variety of treatments, including joint mobilization (CPT code 97110) and manipulation (CPT code 97265). When Dr. Kamath provided both types of treatment on the same day, Provider billed Insurer for each procedure. For the treatments rendered during the Treatment Period, Insurer declined to reimburse Provider a total of $2,549.00, as reflected in Exhibit 1 to this Decision and Order.

Provider filed an appeal with the MRD, and the MRD referred the dispute to an Independent Review Organization (IRO). The IRO found that Provider should not have charged for joint mobilization and manipulation on the same day, “as these [treatments] provide similar therapeutic value.”^[4] The IRO reduced the $2,549.00 requested amount by $1,009.00 and awarded Provider reimbursement of $1,540.00.

The IRO’s decision did not address Insurer’s denial of reimbursement of other services during the Treatment Period. The MRD notified Provider that Provider would have an additional fourteen days in which to submit additional information to support the request for reimbursement of these other services. When the MRD received no additional information from Provider, the MRD denied the additional request for reimbursement.

On August 19, 2003, Insurer appealed the MRD’s decision as to the $1,540.00 in approved reimbursement. On August 22, 2003, Provider appealed the MRD’s decision as to the $1,009.00 in denied reimbursement. Additionally, Provider also notified the MRD that Provider had never received the MRD’s notice about the additional fourteen days in which to provide documentation.^[5]

On January 14, 2004, ALJ Paul Keeper convened the hearing at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Provider appeared by telephone and was represented by Scott C. Hilliard upon motion and order. Insurer appeared and was represented by Patricia Eads, an attorney. The hearing was adjourned that same day, and the record was held open by agreement for the parties’ submission of additional material. On February 6, 2004, the administrative record was closed.

II. DISCUSSION

Burden of proof.

In its appeal, Provider’s burden of proof is to show that the medical services in issue were reasonably required and necessary. Correspondingly, in its appeal, Insurer’s burden of proof is to show that the medical services for which reimbursement was denied were not reasonably required and necessary.^[6]

Diagnosis.

Dr. Nicolas Tsourmas, M.D., a board-certified orthopaedic physician and surgeon, testified for Insurer that Dr. Kamath’s diagnosis of radiculitis was incorrect. Dr. Tsourmas stated that radiculopathy describes a condition that results in the same injury to precisely the same nerves as those previously injured. According to Dr. Tsourmas, Dr. Kamath could not have reasonably reached that diagnosis based on the information available to him.

Dr. David Alvarado, D.C., testified for Insurer that the documentation created by Dr. Kamath supports neither diagnosis of radiculitis nor of lumbar or cervical segmental dysfunction. Further, testified Dr. Alvarado, the absence of this diagnostic information in the patient’s medical records would preclude Provider’s formulation of a reasonable or necessary treatment program.

One-on-one therapy.

Dr. Kamath testified that some of the disputed treatments were rendered on a one-on-one basis. He explained that one-on-one therapy requires that the physician or a qualified staff member be devoted exclusively to the supervision of the patient during the course of therapy. One-on-one therapy does not permit the supervising person to be involved in other activities, including the supervision of other patients.

Dr. Kamath testified that he did not supervise the claimant during all of the one-on-one therapy, although he observed the conduct of therapy through a glass door for part of the time. His approach, according to his testimony, was to obtain the “big picture” without the details. On cross-examination, he admitted that such therapy permits the provider to charge a higher rate of reimbursement and that his treatment area accommodates more than one patient at a time. Dr. Kamath stated that his staff sometimes had responsibility for supervision of four or five patients during the course of one-on-one therapy.

Dr. Tsourmas testified that one-on-one therapy is appropriate to ensure that a patient understands and can perform the prescribed exercises. Greater need for one-on-one therapy may exist if there is an increase in the co-morbidities associated with a particular injury or disease or if a change in the exercise regimen was required. However, according to Dr. Tsourmas, no need could be shown for one-on-one therapy for the Claimant beyond the original set of instructions. Further, Dr. Tsourmas testified that the Claimant did not benefit by the use of one-on-one therapy beyond one or two of the original sessions.

Dr. Alvarado testified similarly that one-on-one therapy is an educational component of care. One-on-one therapy generally is not needed once a patient can demonstrate proficiency in the performance of his exercises or unless the doctor sees a need to monitor accuracy or to prescribe a change. None of those exceptions applied in this case.

The ALJ concludes that the record does not support the need for Provider’s rendering of one-one therapy in the portions of the request for reimbursement that were denied.

Type, duration, and combination of therapy.

The type, duration, and combination of the different types of disputed therapy was the subject of considerable testimony by both parties. Dr. Kamath’s testimony was that his medical records were sufficient to document the need for the type of care given.

Dr. Tsourmas and Dr. Alvardo disagreed, testifying that Provider’s medical records did not support the treatment provided. Their testimony was that the Provider’s records failed to document appropriately the modification of the Claimant’s exercises, the examples of “muscle guarding” claimed by Dr. Kamath, the physical therapist’s time with the Claimant, or home exercises. Further, Dr. Alvardo testified that Dr. Kamath’s notes did not sufficiently distinguish between the patient’s and the doctor’s conclusions about the Claimant’s condition during treatment.

Dr. Alvardo testified that active physical therapy is the type of care usually performed by a licensed physical therapist and that passive physical therapy is the type of care usually performed by the medical clinician. Passive therapy includes treatments like manual traction, mobilization, ultrasound therapy, and myofacial release. For care of injuries like those experienced by the Claimant, Dr. Alvarado testified, passive therapy should be given for about one to two weeks after injury. The care rendered to the Claimant in this case far exceeded that guideline, according to Dr. Alvarado.

The ALJ concludes that the Provider’s medical records do not support the treatment provided.

Billing practices.

Dr. Alvarado testified that an office visit (CPT code 99213) should include range of motion testing and muscle testing. He also testified that separate billing for joint mobilization and manipulation are part of the same therapy and should not be billed on the same day of treatment. The violation of these billing practices, testified Dr. Alvarado, appear in Provider’s billings in this case and form an independent basis for denial of a portion of the reimbursement sought. The ALJ concludes that these declined billings do not reflect care that was medically necessary.

Record-keeping practices.

As part of this testimony, Dr. Kamath disclosed that his staff, although rendering care for patients, are not responsible for the keeping of medical records of individual patients. Accordingly, daily entries in a patient’s medical record are written by Dr. Kamath. He testified that he meets with his patients briefly after the end of their individual therapy sessions and enters the information at that time. Counsel for Insurer challenged Dr. Kamath’s records as non-reflective of therapy actually delivered. The ALJ finds that the medical records do not support the medical necessity of the services rendered that were subject to the denial of reimbursement.

III. FINDINGS OF FACT

1. The Claimant, M.B., was injured on April 17, 2001, and reinjured on September 11, 2001, in another employment-related event.
2. On November 15, 2001, the Claimant was seen by Osler Kamath, D.C., in the office of Provider, who determined that Claimant had radiculitis, lumbar segmental dysfunction, and cervical segmental dysfunction.
3. The Claimant remained in the care of Dr. Kamath through October 7, 2002, a period of about eleven months.
4. During that time, Dr. Kamath provided the Claimant with a variety of types of treatments, including joint mobilization (CPT code 97110) and manipulation (CPT code 97265).
5. When Dr. Kamath provided both types of treatment on the same day, Provider billed Insurer for each procedure.
6. For the treatments rendered between November 16, 2001, and January 7, 2002 (Treatment Period), Insurer declined to reimburse Provider a total of $2,549.00, as reflected in Exhibit 1 to this Decision and Order.
7. Provider appealed to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) the Insurer’s denial of reimbursement for the $2,549.00 in disputed services during the Treatment Period.
8. The MRD referred the dispute to an Independent Review Organization (IRO).
9. The IRO found that Provider should not have charged for joint mobilization and manipulation on the same day, “as these [treatments] provide similar therapeutic value.”
10. On August 1, 2003, the IRO reduced the $2,549.00 requested amount by $1,009.00 and awarded Provider reimbursement of $1,540.00.
11. On August 19, 2003, Insurer appealed the MRD’s decision as to the $1,540.00 in approved reimbursement, and on August 22, 2003, Provider appealed the denial of reimbursement for the $1,009.00 in other services.
12. On September 16, 2003, TWCC notified the parties that the hearing would be convened at the offices of the State Office of Administrative Hearings (SOAH) at the William P. Clements Building, 300 West 15^th Street, Fourth Floor, Austin, Texas, at 9:00 a.m.
13. On an agreed motion for continuance, the hearing was reset for January 14, 2004,and proper notice was sent to the parties by SOAH.
14. On January 14, 2004, ALJ Paul Keeper convened the hearing at the William P. Clements Building, 300 West 15^th Street, Austin, Texas.
15. The hearing was adjourned on January 14, 2004, and the record was held open by agreement for the parties’ submission of additional citations or documents.
16. On February 6, 2004, the administrative record was closed.
17. Radiculopathy describes a condition that results in the same injury to precisely the same nerves as those previously injured.
18. A diagnosis of radiculopathy for Claimant could not have been reasonably reached based on the information available to Dr. Kamath.
19. The documentation created by Dr. Kamath supports a diagnosis of neither radiculitis nor of lumbar or cervical segmental dysfunction.
20. The absence of diagnostic information in the Claimant’s medical records precludes Provider’s formulation of a reasonable or necessary treatment program.
21. Some of the disputed treatments were rendered on a one-on-one basis.
22. One-on-one therapy requires that the physician or a qualified staff member be devoted exclusively to the supervision of the patient during the course of therapy.
23. One-on-one therapy does not permit the supervising person to be involved in other activities, including the supervision of other patients.
24. Dr. Kamath did not supervise the Claimant during all of the one-on-one therapy, although he observed the conduct of therapy through a glass door for part of the time.
25. Dr. Kamath’s staff sometimes had responsibility for supervision of four or five patients during the course of one-on-one therapy.
26. One-on-one therapy is appropriate to ensure that a patient understands and can perform the prescribed exercises.
27. Greater need for one-on-one therapy may exist if this is an increase in the co-morbidities associated with a particular injury or disease or if a change in the exercise regimen was required.
28. No need could be shown for one-on-one therapy for the Claimant beyond the original set of instructions.
29. The Claimant did not benefit by the use of one-on-one therapy beyond one or two of the original sessions.
30. The record does not support the need for one-one therapy during the Treatment Period.
31. Provider’s records fail to document appropriately the modification of the Claimant’s exercises, the examples of “muscle guarding” as claimed by Dr. Kamath, the physical therapist’s time with the Claimant, or the home exercises.
32. Dr. Kamath’s notes do not sufficiently distinguish between the patient’s and the doctor’s conclusions about the Claimant’s condition during treatment.
33. Active physical therapy is the type of care usually performed by a licensed physical therapist, and passive physical therapy is the type of care usually performed by the medical clinician.
34. Passive therapy includes treatments like manual traction, mobilization, ultrasound therapy, and myofacial release.
35. For care of injuries like those experienced by the Claimant, passive therapy should be given for about one to two weeks after injury.
36. The care rendered to the Claimant in this case exceeds that which is appropriate under practice standards.
37. An office visit (CPT code 99213) should include range of motion testing and muscle testing.
38. Separate billing for joint mobilization and manipulation are part of the same therapy and should not be billed on the same day of treatment.
39. Provider’s medical records do not support the treatment provided.
40. Joint mobilization and manipulation, as billed, were not medically necessary.

IV. CONCLUSIONS OF LAW

1. The Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Labor Code Ann. § 413.031.
2. SOAH 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 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
3. The request for a hearing was timely made pursuant to 28 Tex. Admin. Code § 148.3.
4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001.052 and 28 TAC § 148.4.
5. Provider had the burden of proof on its appeal by a preponderance of the evidence, pursuant to 28 Tex. Admin. Code § 148.21(h) and (i).
6. Carrier had the burden of proof on its appeal by a preponderance of the evidence, pursuant to 28 Tex. Admin. Code § 148.21(h) and (i).
7. The disputed services rendered during the Treatment Period were not medically necessary health care for the Claimant.
8. Based on the foregoing findings of fact and conclusions of law, Provider’s request for reimbursement should be denied for the disputed services as to the entire $2,549.00 in dispute.

ORDER

IT IS ORDERED that Main Rehab and Diagnostic is not entitled to reimbursement by Texas Mutual Insurance Company for the disputed services totaling $2,549.00.

Signed February 26, 2004.

PAUL D. KEEPER
Administrative Law Judge
State Office of Administrative Hearing

EXHIBIT 1
CPT Code	Service	Charge for service	Number of Units of Services	Total in Dispute	Reason for Insurer’s Denial
95851	Range of motion measurements	$72.00	4	$288.00	This service is an integral component of another service, procedure, or program. Separate reimbursement is not allowed.
97750MT	Muscle testing	$86.00	4	$344.00	This service is an integral component of another service, procedure, or program. Separate reimbursement is not allowed.
97110	Therapeutic exercises	$105.00	10	$1,050.00	For the procedures rendered in 2001, the patient’s clinical condition was not documented to support one-on-one therapy. For the procedures rendered in 2002 the service exceeded medically accepted utilization review criteria and/or reimbursement guidelines for the severity of injury, intensity of service, and appropriateness of care.
97110	Therapeutic exercises	$140.00	1	$140.00
97265	Joint manipulation	$43.00	12	$516.00
97139TN	TENS application	$85.00	1	$85.00	Failure to submit EOB for this service in violation of 25 TAC § 133.307.e)(1)(B). Failure to obtain preauthorization of a required treatment.
97122	Manual traction	$35.00	1	$35.00	The service exceeds medically accepted utilization review criteria and/or reimbursement guidelines for the severity of injury, intensity of service, and appropriateness of care.
97250	Myofascial release	$43.00	1	$43.00	The service exceeds medically accepted utilization review criteria and/or reimbursement guidelines for the severity of injury, intensity of service, and appropriateness of care.
99213	Office visit	$48.00	1	$48.00	CPT code 99213 should include range of motion testing and muscle testing and should not be billed separately.
Totals	35	$2,549.00

1. Insurer’s Exhibit 4 at 75.↑
2. Insurer’s Exhibit 5 at 1-3, 14-15.↑
3. Insurer’s Exhibit 5 at 30-33↑
4. Insurer’s Exhibit 5 at 75-76.↑
5. Provider’s Exhibit 2 at 1.↑
6. Tex. Labor Code §408.021(a).↑