DECISION AND ORDER

East Side Surgery Center (East Side) appeals from the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission), which denied East Side additional reimbursement for medical services. East Side is an ambulatory surgical center (ASC) that provides surgical services for procedures not requiring in-patient hospitalization. East Side billed Houston Independent School District (HISD) $2,906.24 for facility charges and supplies for a lumbosacral epidural block performed on claimant ____.^[1] HISD paid East Side $728.49, which it stated was a fair and reasonable payment for the services provided. East Side submitted a request for a dispute-resolution review to the MRD, which denied East Side’s claim for additional payment. This decision finds that East Side is entitled to $1,415.19 additional reimbursement.

I. PROCEDURAL HISTORY

Administrative Law Judge (ALJ) Thomas H. Walston convened a hearing in this case on May 6, 2002, at the State Office of Administrative Hearings, William Clements State Office Building, 300 W. 15th, Austin, Texas. Attorney Doug Pruett represented East Side, attorney Jon Grove represented HISD, and Chief of APA Litigation Yvonne Williams represented the Commission. The hearing concluded and the record closed the same day. There were no disputes concerning jurisdiction and notice, and those matters are discussed in the findings of fact and conclusions of law.

II. DISCUSSION

A. Evidence

The record in this case is sparse. Neither party called any witnesses. Instead, the MRD official record was admitted into evidence, and East Side submitted an affidavit and other documents to show the amounts other carriers have paid for similar services billed under the same CPT Code 62289. East Side also provided a copy of the recent Austin Court of Appeals decision, Patient Advocates of Texas v. Texas Workers Compensation Commission,^[2] a brief filed in that case, and other similar items. HISD relied upon the MRD official record and offered no additional evidence.

This limited record shows that Claimant sustained a compensable injury on _____. To treat this injury, Dr. Marc D. Rose performed an epidural somatic bloc on_______ spine at East Side on October 10, 1996. East Side provided various services for this procedure, such as an operating room, X-rays, fluoroscopy to aid in guiding the needle, medications, supplies, a recovery room, and other services, and it billed HISD a total of $2,906.24. HISD paid only $728.49 and East Side requested dispute resolution by MRD, but on October 30, 1998, MRD denied East Side any additional reimbursement.

The only evidence concerning HISD’s calculation of reimbursement is an undated letter contained in the MRD records from the “Bill Review Department” of IHDS of Texas, Inc.^[3] This letter states:

The reimbursement and determination of the reasonable and customary fees for the services is based on Ambulatory Patient Groups (APGs). A group of outpatient procedures, encounters, or ancillary combined based on patient clinical characteristics and expected resource use.

The CPT-4 is assigned an APG code that has an APG weighted value times a base rate to determine the reimbursement amount. In this particular claim, CPT 62289 is assigned to APG code 264 with a weighted value of 0.3469 x the base rate of $2100 ‘$728.49.

We believe the reimbursement amount of $728.49 for CPT Code 62289 is reasonable and customary and the APG method to determine this is based on appropriate documentation.

In response, East Side submitted a letter to MRD dated October 24, 1997, which stated:

. . . The reason we feel we should be paid more than what [HISD] is paying is because we do not feel what they are paying is fair and reasonable as they state. They paid only $728.49 on the complete bill. We would also like to know how they are getting fair and reasonable figures? We also feel our costs are not being met. We have employees (nurses and all other staff) to pay on top of all the supplies, drugs, equipment costs, etc. . . .

In addition, at hearing East Side provided an affidavit and supporting documentation to show amounts paid to East Side by various carriers and self-insured’s for CPT Code 62289. These included 24 bills paid by 19 different entities between 1999 and 2001. The amounts paid ranged from 68% to 100% of the submitted bill, and from a low dollar amount of $1,618.89 to a high of $2,617.17. These materials also included one payment to East Side from HISD on October 25, 1999. On that occasion HISD paid $1,885.48 of a $2,513.97 bill (75%) for CPT Code 62289.

B. Arguments

East Side argues that its evidence showing what other carriers and self insured’s (including HISD) have paid for similar services under CPT Code 62289 proves that HISD grossly underpaid the bill in this case. It also argues that the evidence establishes a fair and reasonable rate, and it notes that HISD offered no controverting evidence.

East Side also cites Patient Advocates of Texas v. Texas Workers Compensation Commission, to argue that the Commission’s Rule 133.304 is an impermissible delegation of governmental authority to insurance carriers. Rule 133.304 provides that when the Commission has not established a Maximum Allowable Reimbursement (MAR) for a particular service, then the insurance carrier shall “develop and consistently apply a methodology to determine the fair and reasonable reimbursement amounts to ensure that similar procedures provided in similar circumstances receive similar reimbursement.” In Patient Advocates, the Austin Court of Appeals held that certain portions of the Commission’s Dispute and Audit Rules were invalid because the rules “delegated audit power to private insurance carriers without providing sufficient standards to guide carriers in the performance of their delegated public function.” East Side argues by analogy that Rule 133.304 is equally flawed and should be held invalid.

HISD points out that it does not have the burden of proof in this proceeding and was not required to offer any evidence. It states that East Side has the burden of proof and argues that East Side’s evidence does not establish a fair and reasonable reimbursement rate for the procedure involved in this case. HISD also argues that the Patient Advocates case only considered the Commission’s audit rules and that no ruling was made in that case concerning Rule 133.304. In short, HISD argues that the Patient Advocates case does not apply, that MRD properly denied East Side’s claim, and that East Side has not offered sufficient evidence to establish that it is entitled to additional reimbursement.

C. ALJ’s Analysis and Ruling

Based on the evidence presented, the ALJ finds that East Side is entitled to additional reimbursement in the amount of $1,451.19. The ALJ calculated the additional reimbursement at 75% of East Side’s bill (which is the percentage HISD paid on another East Side bill), less the prior payment made by HISD ($2,906.24 X 0.75 ‘$2,179.68 B $728.49 ‘$1,451.19).

East Side offered evidence that between 1999 and 2001 other entities paid an average of $2,123.52 on East Side bills that averaged $2,528.00 for CPT Code 62289. This calculates to an 84% payment rate. HISD argues that this evidence may show the customary and usual charges paid to East Side for CPT Code 62289, but that it does not establish a fair and reasonable charge, which is at issue here. The ALJ agrees with HISD that East Side’s evidence does not conclusively establish a fair and reasonable charge, but it is some evidence of a fair and reasonable charge. And HISD itself paid 75% of a $2,513.97 bill from East Side for CPT Code 62289 on at least one occasion, which tends to bolster East Side’s evidence. Further, HISD offered no controverting evidence except for a one-page letter contained in the MRD file. But the letter is confusing, contains only conclusory statements, and lacks any explanation or supporting data.

In short, the ALJ finds that East Side has established its right to $1,451.19 additional reimbursement by a preponderance of the evidence presented at hearing, however sparse that evidence might be. The ALJ emphasizes that this decision is based solely on the limited record in this case; it should not be considered as precedent in other cases with a more complete record. In addition, the ALJ does not reach East Side’s contention that the Patient Advocates case invalidates Rule 133.304. It is clear that Patient Advocates did not expressly invalidate Rule 133.304, invalidating the rule is not necessary to make a decision in this case, and, in any event, it is not clear that an ALJ has the legal authority to invalidate an agency rule.

Therefore, the ALJ grants East Side’s appeal and orders that HISD shall reimburse East Side the additional sum of $1,451.19 for services rendered in connection with a lumbar epidural block provided to claimant_______ on October 10, 1996.

III. FINDINGS OF FACT

1. On ______, Claimant______sustained a compensable injury in the course of his employment with the Houston Independent School District (HISD).
2. HISD was self insured for workers’ compensation benefits at the time of___ compensable injury.
3. To treat ___ injury, Dr. Marc D. Rose performed an epidural somatic bloc at East Side Surgical Center (East Side) on DB’s lumbar spine on October 10, 1996. East Side provided various services for this procedure, such as an operating room, X-rays, fluoroscopy to aid in guiding the needle, medications, supplies, and a recovery room.
4. East Side billed HISD a total of $2,906.24 for the services and supplies provided in connection with _____ surgery. East Side coded the bill with CPT Code 62289.
5. HISD paid only $728.49 of East Side’s bill and East Side submitted a request for dispute resolution to the Texas Workers’ Compensation Commission’s (Commission’s) Medical Review Division (MRD). On October 30, 1998, MRD denied any additional reimbursement for East Side.
6. On November 18, 1998, East Side timely requested a hearing to appeal MRD’s decision.
7. On December 16, 1998, the Commission issued a notice of hearing for February 15, 1999. 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 reset for February 16, 1999, but on February 11, 1999, the parties filed an agreed motion for continuance in order to allow additional settlement negotiations. On February 12, 1999, the hearing was continued as requested by the parties.
9. On April 11, 2002, the hearing in this case was reset for May 6, 2002. The hearing proceeded as scheduled. Attorney Doug Pruett represented East Side, attorney Jon Grove represented HISD, and Chief of APA Litigation Yvonne Williams represented the Commission. The hearing concluded and the record closed the same day.
10. Between 1999 and 2001, 19 carriers and self-insured’s paid 24 East Side bills for CPT Code 62289 in amounts ranging from 68% to100% of the submitted bill, and from a low dollar amount of $1,618.89 to a high of $2,617.17. These payments averaged 84% of the bill submitted by East Side.
11. On October 25, 1999, HISD paid $1,885.48 of a $2,513.97 bill (75%) from East Side for CPT Code 62289.
12. The payments described in Findings of Fact 10 and 11 are evidence of fair and reasonable charges by East Side for CPT Code 62289.
13. A fair and reasonable charge for East Side’s services and supplies provided to____ on October 10, 1996, is 75% of East Side’s $2,906.24 bill. This equals $2,179.68.
14. HISD has previously paid $728.49 on East Side’s bill. Therefore, HISD should pay East Side additional reimbursement of $1,451.19 ($2,179.68 B $728.49 ‘$1,451.19).

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act. Tex. Labor Code Ann. § 413.031 (Vernon 1996).
2. 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. § 413.031(d) and Tex. Gov’t Code Ann., ch. 2003 (Vernon 2000).
3. Based on finding of Fact No. 7, adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann. §§ 2001.051 & 2001.052 (Vernon 2000).
4. Workers’ compensation insurance covers all medically necessary health care, which includes all reasonable medical aid, examinations, treatments, diagnoses, evaluations, and services reasonably required by the nature of the compensable injury, and reasonably intended to cure or relieve the effects naturally resulting from a compensable injury. It includes procedures designed to promote recovery or to enhance the injured worker’s ability to get or keep employment. Tex.Lab. Code Ann. § 401.011(19) and (31).
5. East Side had the burden of proving by a preponderance of the evidence that it was entitled to additional reimbursement. 28 Tex. Admin. Code (TAC) § 148.21(h).
6. The Commission rules provide: “Reimbursement for services not identified in an established fee guideline shall be reimbursed atfair and reasonable rates as described in the Texas Workers’ Compensation Act, Section 8.21(b), until such time that specific guidelines are established by the commission.” 28 TAC § 134.1(f).
7. Based on Finding of Fact No. 13, a fair and reasonable charge for East Side’s services provided to Claimant ____ is $2,179.68. 28 TAC § 134.1(f).
8. Based on Finding of Fact No. 14 and Conclusion of Law No. 7, East Side is entitled to additional reimbursement of $1,451.19. 28 TAC § 134.1(f).

ORDER

IT IS, THEREFORE, ORDERED that the appeal of East Side Surgical Center requesting additional reimbursement for the services provided to Claimant______on October 10, 1996, is GRANTED, and East Side Surgical Center shall have and recover from Houston Independent School District the sum of $1,451.19, plus interest for the time and at the rate provided by law.

Signed May 16, 2002.

THOMAS H. WALSTON
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. These charges do not include the physician’s fee, which is not at issue in this case.↑
2. No. 03-01-00215-CV (Austin Court of Appeals, April 25, 2002).↑
3. IHDS stands for “Integrated HealthCARE Delivery Services.”↑