DECISION AND ORDER

Claimant ___ injured her back in a work-related incident in May 2001. Dr. Brian Randall, D.C., provided chiropractic treatment to ___. The workers’ compensation carrier, National Fire Insurance Company of Hartford (“National Fire Insurance” of “the carrier”), declined to pay for certain of the chiropractic services from July 9 through December 21, 2001, asserting that various of the services were inadequately documented or were medically unnecessary. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) and an Independent Review Organization (IRO) reviewed the disputed services and recommended reimbursement for most of the disputed services. National Fire Insurance requested a hearing. The Administrative Law Judge (ALJ) determines that National Fire Insurance should pay $5,362.00.

I.

DISCUSSION

A. Background

___, a woman in her early forties, was injured while leaning and stretching to cut fabric. She experienced ongoing pain in her back, neck, and shoulders.^[1] Dr. Randall’s clinic first saw her on June 14, 2001, when ___ was evaluated and began a course of physical therapy and chiropractic manipulation. Dr. Randall also referred ___ for examination by a medical doctor, who recommended various x-rays. ___ was found to have a full thickness rotator cuff tear. Electrodiagnostic examination of the upper and lower extremities showed evidence of bilateral cervical nerve root irritation but no definite cervical radiculopathy or peripheral neuropathy. There was evidence of bilateral L5 radiculopathy. In September, ___ underwent arthroscopic repair of the rotator cuff injury, after which she resumed therapy at Dr. Randall’s clinic. She continued to have pain, including back pain. In November, she saw a medical doctor for pain management; he recommended that she continue her physical therapy with Dr. Randall. ___ did not return to work following administration of the disputed services.

B. Procedural History

The MRD issued its Decision and Order on July 21, 2003.^[2] This Decision and Order was based on two separate analyses: first, the MRD’s review of services denied as improperly

documented and, second, the IRO’s review of services denied as unnecessary. National Fire Insurance filed its request for hearing on August 20, 2003.^[3] The Commission issued a notice of hearing on September 19, 2003. The hearing was convened by ALJ Shannon Kilgore on November 20, 2003. James M. Loughlin, attorney, represented National Fire Insurance. Richard G. Ardoin, attorney, appeared by telephone for Dr. Randall. The hearing adjourned the same day, but the record remained open for submission of post-hearing written closing arguments. The record closed December 12, 2003.

C. Burden of Proof

National Fire Insurance has the burden of proof in this matter.^[4]

D. Issue 1: What Services Should Be Reviewed for Adequacy of Documentation?

CPT Codes. Dr. Randall’s clinic billed for the following CPT Codes during the period in question, July 9 through December 21, 2001:

97010 hot or cold packs

97014 electrical stimulation

97035 ultrasound

97110 therapeutic exercise

97250 myofascial release

97261 additional manipulation

97265 joint mobilization

99080 special report

99212 office visit

99213 office visit

99213-MPoffice visit with manipulation

99214 office visit.

The explanations of benefits (EOBs). In general, for the services provided from July 9 through September 6, 2001, National Fire Insurance denied reimbursement using the “N” code for “not documented.”^[5] There are no services at issue for the period following September 6 and up to October 11, 2001. From October 11 through November 12, 2001, National Fire Insurance tended to deny the same general range of services by using code “T” for “not according to treatment guidelines.”^[6] Then, for November 16 and November 20 through 21, 2001, National Fire used “N”

again. For denial of reimbursement for the same general services from November 26 through December 3, 2001, the carrier tended to use “U” B “unnecessary medical treatment or service.” On December 5, the carrier switched back to “N” and used this code for most dates of service through December 21, 2001.^[7]

The MRD’s review. The MRD reviewed the services provided on:

July 9 – September 6, 2001

November 16, 2001

November 20 – 21, 2001

December 5 – 21, 2001.

These dates correspond generally to services denied for lack of documentation. Although the entire original amount in dispute was $8,929.00, the MRD did not review this entire amount; it only reviewed about $5,443 in services.^[8] The remainder of the disputed services were reviewed solely by the IRO. The MRD determined that National Fire Insurance should pay for all the services it reviewed except those billed under CPT Code 97110 (therapeutic exercises), which the MRD concluded had not been properly documented.^[9] The MRD disallowed $2,800.00 of charges for the therapeutic exercises and $15.00 for a report, and stated that Dr. Randall was entitled to reimbursement in the amount of $2,628.00 for the remaining services the MRD reviewed. Dr. Randall did not cross-appeal the amounts disallowed by the MRD, so those items, representing about $2,815.00, are not at issue here.

The IRO’s review. The IRO reviewed all “chiropractic treatment” provided from October 11 through December 17, 2001, and found it medically necessary.

National Fire Insurance’s position. National Fire Insurance states that it is contesting all charges not disallowed by the MRD B a total of $6,114.00, representing the original $8,929.00 minus the $2,815.00 disallowed by the MRD. The carrier emphasizes that it is contesting the $6,114.00 in charges on the basis of lack of documentation. National Fire Insurance asserts that it can now raise inadequate documentation as an issue with respect to dates of service denied under the “T” or “U” codes, arguing that the Commission and SOAH must enforce the relevant provisions of the Labor Code and the Commission’s rules regardless of whether the insurer erred in its EOBs. The carrier further asserts that the Austin Court of Appeal’s invalidation of the Commission’s audit rules in Patient Advocates of Texas v. Texas Workers’ Compensation Commission, 80 ___3d 66, 80 (Tex. App.BAustin 2002, pet. granted), renders groundless any argument that the carrier is limited to reasons for denial set out in its EOBs. National Fire Insurance contends that, through its overall

pattern of denials and through oral communications with Dr. Randall’s office,^[10] it effectively let Dr.

Randall know that inadequate documentation was an issue as to all of the disputed services.

Dr. Randall’s position. Dr. Randall asserts that, since National Fire Insurance is not contesting the IRO’s finding of medical necessity, the amount in issue is the amount of the MRD’s recommendation for reimbursement: $2,628.00. According to Dr. Randall, the charges denied as “T” or “U” that were reviewed exclusively by the IRO cannot now be subject to review at SOAH on any basis other than medical necessity.

ALJ’s analysis. The peculiar procedural history of this case B with some denials of reimbursement reviewed by the MRD and other denials for the same kinds of services reviewed by an IRO B seems to be a result of the carrier’s bewilderingly inconsistent use of denial codes. The carrier has not shown it effectively communicated to the provider that documentation was an issue with respect to each disputed service provided; rather, National Fire Insurance’s scattershot approach to the use of denial codes was highly confusing.^[11] If the carrier intended to convey that it was contesting both the documentation and the medical necessity of the services, it should have used multiple codes throughout. The medical dispute resolution process established by the Commission’s rules contemplates that the parties present their reasons for denial and their defenses to the MRD, which will rule on the issues presented and no others.^[12] Under the circumstances of the instant case B where the carrier has used three different denial codes in an unexplained and seemingly haphazard fashion to address repeatedly administered services B the ALJ determines that the carrier has failed to properly raise and preserve its objection to the adequacy of documentation for services that were denied as unnecessary or not in compliance with treatment guidelines, and were therefore only reviewed by the IRO for medical necessity.^[13]

Accordingly, the ALJ determines that the amount to be reviewed for adequacy of documentation is the amount recommended for payment by the MRD: $2,628.00. The exact dates of service and CPT codes are set forth in the MRD’s decision, included in this Order as Attachment 1. Since the MRD recommended against reimbursement for all charges for CPT Code 97110 (therapeutic exercise), those amounts are not at issue in this case.

E. Issue 2: Were the Disputed Services Adequately Documented?

Physical medicine services. The physical medicine modalities in dispute in this case are: CPT Codes 97010 (hot or cold packs), 97014 (electrical stimulation), 97035 (ultrasound), 97250 (myofascial release), and 97261/ 97265 (joint mobilization). National Fire Insurance, relying on the testimony of its expert witness Michael Bhatt, D.C., asserts that the documentation of these services is inadequate in that the documentation does not set out the patient’s daily response to the treatments rendered and therefore does not show the ongoing need for continuing treatment. In addition, the carrier contends that the records are insufficient because they do not specify the kind of myofascial release provided, do not document the intensity of the electrical stimulation administered, do not indicate who actually provided the services on each day, and are not signed. The carrier is not disputing the medical necessity of the services. Dr. Randall, citing to the testimony of Marjan Malekzadeh, D.C. (a chiropractor with Dr. Randall’s clinic who actually treated ___), asserts that the services were adequately documented, primarily through the clinic’s system of “travel cards” B charts that record SOAP^[14] notes in a shorthand form using abbreviations.^[15]

The ALJ finds the documentation for all the physical medicine services, except the therapeutic exercises, was adequate. As explained through the testimony of Dr. Malekzadeh, the travel card records show that on each day of therapy, ___ was questioned about her level of pain in five different areas of her body (lower back, upper back, neck, right shoulder, and left shoulder), and her subjective assessment of her pain in each area was recorded. In addition, she was examined for the presence of muscle spasms, tenderness, trigger points, and/or decreased range of motion, and the location of any of these symptoms (cervical, thoracic, lumbar, or shoulder area) was recorded.^[16] The travel cards further show when electrical stimulation, ultrasound, and myofascial release were provided, and to what areas of the body. There are occasional notations about whether the progress was as expected, or whether there was a worsening of the patient’s symptoms. For each day, the travel cards have a space for additional comments; for about a third of the dates of service at issue, a comment was actually written in the space. The comments relate to diagnostic tests, pain levels, surgery, consultations, and injections. Dr. Malekzadeh testified that the handwriting on the travel cards was hers or her assistant’s, with the notations of “objective” findings being her own. Although the travel cards make considerable use of abbreviations and are difficult to interpret without explanation, they do in fact provide a great deal of specific information.

In addition to the travel cards, the record includes records of examinations at Dr. Randall’s clinic on June 14 (initial exam),^[17] August 3,^[18] October 2,^[19] and October 31.^[20] These records offer

more detail about ___’s condition over the course of the therapy. Dr. Malekzadeh testified that periodic exams are typically scheduled at intervals of four to six weeks. As the carrier points out, the interval from August 3 to October 2 was longer than six weeks; however, during that time ___ had surgery to repair her torn rotator cuff. It appears likely that ___’s re-examination was delayed until her first visit after the surgery, which occurred on October 2. The record further includes documentation of a “shoulder examination” dated December 3, 2001, reflecting the results of palpation and strength and range of motion testing of ___’s shoulders (it is not clear who performed this exam).^[21] In addition, the record includes notes of examinations by other, consulting providers throughout the period in question, reflecting the results of their examinations of ___’s condition and their recommendations that ___ continue with her physical therapy.^[22]

The documentation of the physical medicine modalities, while it does not record ___’s daily, immediate response to the therapy she received, offers considerable detail about the treatments administered and the patient’s condition over time. The documentation clearly demonstrates that the services were provided, and is adequate to support reimbursement, especially in light of the fact that the carrier is not contesting medical necessity in this case; the ALJ is not persuaded by the carrier’s arguments that the services were medically necessary but the documentation fails to demonstrate medical necessity.

Evaluation and management. Also at issue are office visits billed under CPT Codes 99212, 99213, and 99214 for services related to evaluation and management. CPT Code 99212 requires “at least two of these three components: a problem focused history; a problem focused examination; [and] straightforward medical decisionmaking.” CPT Code 99213 requires “at least two of these three components: an expanded problem focused history; an expanded problem focused examination; [and] medical decisionmaking of low complexity.” CPT Code 99214 requires “at least two of these three components: a detailed history; a detailed examination; [and] medical decisionmaking of moderate complexity.” The MRD determined the claims under the codes to be adequately documented.

Where the travel cards reflect a conversation with the patient and an examination for tenderness, muscle spasms, or trigger points, there is adequate documentation of an exam, at least of a simple or possibly moderate level. For some dates of service, this is the only documentation. For other dates of service, the travel cards may also reflect decisionmaking or analysis — e.g., a review of the results of a diagnostic test, a referral to a consulting provider, or a more extensive discussion of a particular symptom. For yet other dates, there is no entry in the travel cards at all. And for some dates, there are separate reports of more detailed exams. For the dates of service for CPT Codes 99212, the ALJ finds as follows:

7-9-01 documentation of exam

no documentation of history or decisionmaking

7-24-01no documentation

7-27-01documentation of exam

no documentation of history or decisionmaking

9-6-01 documentation of exam

no documentation of history or decisionmaking

11-21-01documentation of exam

no documentation of history or decisionmaking

12-7-01documentation of exam

no documentation of history or decisionmaking

12-21-01documentation of exam

no documentation of history or decisionmaking.

Accordingly, the ALJ determines that for CPT Code 99212 there should be no reimbursement for the above dates.

For CPT Code 99213, the ALJ finds as follows:

7-11-01documentation of exam

documentation of decisionmaking

7-13-01documentation of exam

documentation of decisionmaking

7-16-01documentation of exam

documentation of decisionmaking

7-18-01documentation of exam

no documentation of history or decisionmaking

7-20-01documentation of exam

documentation of decisionmaking

7-23-01documentation of exam

no documentation of history or decisionmaking

7-25-03documentation of exam

no documentation of history or decisionmaking

7-30-01documentation of exam

documentation of decisionmaking

8-1-01 documentation of exam

no documentation of history or decisionmaking

8-6-01 documentation of exam

no documentation of history or decisionmaking

8-29-01documentation of exam

no documentation of history or decisionmaking

9-4-01 documentation of exam

no documentation of history or decisionmaking

12-05-01documentation of exam

no documentation of history or decisionmaking

12-10-01documentation of exam

no documentation of history or decisionmaking

12-14-01documentation of exam

no documentation of history or decisionmaking

12-17-01documentation of exam

no documentation of history or decisionmaking.^[23]

Accordingly, five of the above services should be reimbursed.

As for CPT Code 99214, Dr. Randall only billed for one date of service that was reviewed by the MRD: August 3. National Fire Insurance is no longer contesting documentation for the August 3 billing.

Summary. Of the $2,628.00 recommended by the MRD for reimbursement, the ALJ determines that the seven dates of service for CPT Code 99212 should not be paid. At a rate of $32.00 per unit, the disallowance for 99212 is $224.00. For CPT Code 99213, 11 dates of service, at $48.00 per unit, should be disallowed. The total disallowance for this code is therefore $528.00. The total disallowances for the 99212 and 99213 codes amount to $752.00. The ALJ agrees with the MRD’s determinations concerning other CPT codes. Therefore, the total reimbursement for services reviewed by the MRD should be:

$2,628.00 – $752.00 = $1,876.00.

The total owed by National Fire Insurance is the original $8,929.00 minus the $2,815.00 disallowed by the MRD, further minus the $752.00 to be disallowed for inadequate documentation, or: $5,362.00.

II.

FINDINGS OF FACT

1. The claimant ___ suffered compensable injuries while leaning and stretching to cut fabric. She experienced ongoing pain in her back, neck, and shoulders.
2. National Fire Insurance Company of Hartford (National Fire Insurance) is the workers’ compensation insurer with respect to the claims at issue in this case.
3. Dr. Brian Randall or his clinic provided treatment to the claimant on multiple dates from July 9 through December 21, 2001. Dr. Randall billed for the services under the following CPT Codes:

97010 hot or cold packs

97014 electrical stimulation

97035 ultrasound

97110 therapeutic exercise

97250 myofascial release

97261 additional manipulation

97265 joint mobilization

99080 special report

99212 office visit

99213 office visit

99213-MPoffice visit with manipulation

99214 office visit.

1. The carrier declined to pay for these services.
2. The total amount billed was $8,929.00.
3. In general, for the services provided from July 9 through September 6, 2001, National Fire Insurance denied reimbursement using the “N” code for “not documented.” There are no services at issue for the period following September 6 and up to October 11, 2001. From October 11 through November 12, 2001, National Fire Insurance tended to deny the same general range of services by using code “T” for “not according to treatment guidelines.” Then, for November 16 and November 20 through 21, 2001, National Fire used “N” again. For denial of reimbursement for the same general services from November 26 through December 3, 2001, the carrier tended to use “U” B “unnecessary medical treatment or service.” On December 5, the carrier switched back to “N” and used this code for most dates of service through December 21, 2001.
4. The carrier’s use of three different denial codes in an unexplained and seemingly haphazard fashion to address repeatedly administered services was highly confusing.
5. Dr. Randall requested dispute resolution before the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission).
6. The MRD reviewed those dates of service involving denial on the explanation of benefits for adequacy of documentation. The other dates of service, involving denial on the basis of unnecessary treatment or failure to comply with treatment guidelines, were reviewed by an Independent Review Organization (IRO).
7. The MRD reviewed the services provided on:

July 9 – September 6, 2001

November 16, 2001

November 20 – 21, 2001

December 5 – 21, 2001.

The MRD reviewed these services for the adequacy of documentation.

1. The MRD determined that National Fire Insurance should pay for all the services it reviewed except those billed under CPT Code 97110 (therapeutic exercises), which the MRD concluded had not been properly documented. The MRD disallowed $2,800.00 of charges for the therapeutic exercises and $15.00 for a report (CPT Code 99080), and stated that Dr. Randall was entitled to reimbursement in the amount of $2,628.00 for the remaining services the MRD reviewed.
2. Dr. Randall did not cross-appeal the amounts disallowed by the MRD, so those items, representing about $2,815.00, are not at issue here.
3. The IRO reviewed all “chiropractic treatment” provided from October 11 through December 17, 2001, and found it medically necessary.
4. National Fire Insurance is not contesting the medical necessity of any of the services provided.
5. All services reviewed by the MRD and billed under CPT Codes 97010 (hot or cold packs), 97014 (electrical stimulation), 97035 (ultrasound), 97250 (myofascial release), and 97261/ 97265 (joint mobilization) were documented with considerable detail about the treatments administered and the patient’s condition over time; these services were adequately documented.
6. The seven dates of service for CPT Code 99212 should not be paid because the evaluation and management services were not adequately documented, in that the record did not demonstrate that the doctor had performed at least two of these three components: a problemfocused history; a problem focused examination; [and] straightforward medical decisionmaking. At a rate of $32.00 per unit, the disallowance for 99212 is $224.00.
7. For CPT Code 99213, 11 dates of service reviewed by the MRD, billed at $48.00 per unit, should be disallowed because the documentation of the evaluation and management services was inadequate, in that the record did not demonstrate that the doctor had performed at least two of these three components: an expanded problem focused history; an expanded problem focused examination; [and] medical decisionmaking of low complexity. The total disallowance for this code is therefore $528.00.
8. Dr. Randall only billed for one date of service under CPT Code 99214 that was reviewed by the MRD: August 3. National Fire Insurance is not contesting the adequacy of documentation for the August 3 billing.
9. The total reimbursement for the services reviewed by the MRD should be: $1,876.00.
10. The total amount owed by National Fire Insurance is the original $8,929.00 minus the $2,815.00 disallowed by the MRD, further minus the $752.00 to be disallowed for inadequate documentation for Codes 99212 and 99213, or: $5,362.00.

III.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code ch. 401 et seq.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code § 413.031; Tex. Gov’t Code ch. 2003.
3. 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. Lab. Code § 408.021.
4. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
5. National Fire Insurance has the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).
6. The Commission’s rules require that physical medicine services and office visits be adequately documented. 28 Tex. Admin. Code § 133.1(a)(E)(i). The requirements for various CPT codes are found in the Commission’s Medical Fee Guideline. See 30 Tex. Admin. Code § 134.20 (Commission’s rule adopting the Medical Fee Guideline by reference).
7. The medical dispute resolution process established by the Commission’s rules contemplates that the parties present their reasons for denial and their defenses to the MRD, which will rule on the issues presented and no others. 28 Tex. Admin. Code § 133.307.j)(2).
8. Based on the Findings of Fact, Dr. Randall is entitled to reimbursement in the amount of $5,362.00.

ORDER

IT IS THEREFORE ORDERED that National Fire Insurance Company of Hartford pay Brian Randall, D.C., $5,362.00 for health care services provided to claimant ___ from July 9 through December 21, 2001.

Signed January 13, 2004.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

Shannon Kilgore
Administrative Law Judge

1. ___’s medical records are found at Provider Ex. 1.↑
2. See Carrier Ex. 2.↑
3. Dr. Randall requested that this case be dismissed because National Fire Insurance failed to make a timely request for hearing; this request for dismissal was denied by ALJ Craig Bennett in Order No. 1 in this case.↑
4. 28 Tex. Admin. Code ‘ 148.21(h) and (i).↑
5. See Carrier Ex. 9 for the explanations of benefits.↑
6. There are a few occasions when the carrier seemed to raise documentation as the basis for denial on an EOB, but then used the “T” code on subsequent EOBs for the same dates of service. (The ALJ draws her conclusions about the timing of different EOBs from their order in Carrier Ex. 9, which is arranged chronologically with respect to the dates of service; however, the pages were copied so as to cut off the dates of the EOBs themselves.) See, e.g., Carrier Ex. 9 at 41-45.↑
7. The “T” and “U” codes seem to appear once or twice in the final EOBs for this period. See, e.g., Carrier Ex. 9 at 102, 112.↑
8. For a table of all the disputed services, see Carrier Ex. 1.↑
9. The MRD stated that a report billed under CPT Code 99080-73 for $15.00 on October 24, 2001, should not be reimbursed.↑
10. The carrier points to evidence of oral communications between National Fire Insurance and Dr. Randall’s office showing that the carrier made clear that documentation was an issue. This oral communication, however, concerned dates of service denied by the carrier as inadequately documented and reviewed by the MRD on that basis. See Provider Ex. 1 at 14.↑
11. See generally Carrier Ex. 9.↑
12. 28 Tex. Admin. Code ‘ 133.307(j)(2).↑
13. The ALJ is not persuaded that the Austin Court of Appeals’ decision in Patient Advocates of Texas v. Texas Workers’ Compensation Commission affects the issues in the instant case. The breadth of the court’s decision in Patient Advocates is ambiguous. The court referred to the “Dispute and Audit Rules” as those found at 28 Texas Administrative Code ” 133.300-133.305, and went on to invalidate the “Dispute and Audit Rules delegating auditing powers to private insurance carriers.” 80 ___3d at 72, 80. It is true that the Commission’s requirement that insurers provide explanations for their denials of reimbursement is in ‘ 133.304. However, most of the court’s discussion of the objectionable parts of the rules relates to the provisions for on-site audits. Id. at 77-80. In any event, although the court did not limit its ruling to the on-site audit portions of the rules, the ALJ does not read the court’s decision as meaning that insurers do not need to explain to providers why they have chosen not to pay claims made against their policies.↑
14. “SOAP” refers to “subjective, objective, assessment, plan.”↑
15. The travel cards for the disputed services are found in the record at Carrier Ex. 3, as well as Provider Ex. 1 at 28-31.↑
16. For some dates, the records only document the presence, and not the location, of the symptom. However, for most dates of service, the locations are documented as well.↑
17. Provider Ex. 1 at 38-41 (report by Dr. Randall).↑
18. Provider Ex. 1 at 51-54, 55-56 (report by Dr. Malekzadeh).↑
19. Provider Ex. 1 at 63-65, 55-56 (report by Dr. Malekzadeh).↑
20. Provider Ex. 1 at 66, 55-56 (notes by Dr. Malekzadeh).↑
21. Provider Ex. 1 at 74.↑
22. Provider Ex. 1 at 42-46, 57-62, 67-73, 75-76.↑
23. There was also a billing for 99213 on December 12, 2001, that was denied as inadequately documented but not, for some reason, reviewed by the MRD. The documentation was, in fact, insufficient.↑