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Liberty Mutual Insurance Company v. Bureau of Workers' Compensation

February 23, 2012

LIBERTY MUTUAL INSURANCE COMPANY, PETITIONER
v.
BUREAU OF WORKERS' COMPENSATION, FEE REVIEW HEARING OFFICE (KEPKO, D.O., LINDENBAUM, D.O. C/O EAST COAST TMR), RESPONDENTS



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: December 30, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge*fn1 HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE McCULLOUGH

Liberty Mutual Insurance Company (Insurer) petitions for review of the decision of a fee review hearing officer (Hearing Officer) involving six consolidated fee review petitions, all relating to therapeutic magnetic resonance (TMR) treatment*fn2 provided by Joseph Kepko, D.O., and Jeffrey Lindenbaum, D.O. (hereafter, Providers)*fn3 to Clairmont Kraemer (Claimant). In a decision and order dated May 27, 2011, the Hearing Officer affirmed the administrative decision of the Bureau of Workers' Compensation (Bureau) that Providers were entitled to no fees/payment reimbursement with respect to the applications for fee review numbers 237088 and 250483. However, the Hearing Officer reversed the Bureau's administrative decision concluding that Providers were entitled to $38.76 with respect to the applications for fee review numbers 221926, 225688, 226584 and 253421, and awarded Providers a combined total of $16,143.77 plus interest.*fn4 We now affirm.

Providers provided Claimant with TMR treatments on 10 separate service dates between June 2008 and March 2009. Providers submitted six bills encompassing these dates. For each treatment, Providers billed a total of $2898.00.*fn5

Providers listed each treatment under CPT code 76498,*fn6 which is generally used to identify magnetic resonance procedures. Insurer issued explanations of benefits denying reimbursement for five service dates, authorizing a payment of $400.00 for one service date, and authorizing a payment of $11.00, minus a PPO allowance of $1.31, for each of the remaining four service dates.*fn7 In denying reimbursement, Insurer described the TMR treatment as research, experimental, or investigative services or indicated that the bill was duplicative. To the contrary, the $400.00 payment was described as an unlisted procedure and the $11.00 payments were described as a downcoding to CPT code 76498 plus a PPO allowance. Providers thereafter filed six applications for fee review with the Bureau. The Bureau issued administrative decisions determining that Providers were due no reimbursement in five of the cases and $38.76 in the sixth case. Providers then filed written requests for hearings in each of these cases, after which the cases were consolidated and a hearing was conducted on February 24, 2011. (Findings of Fact Nos. 1-2.)

Insurer thereafter began using CPT code 97032, transcutaneous electric nerve stimulation, for TMR treatment. Subsequent to the issuance of hearing notices in these cases, Insurer downcoded Providers' bills to CPT code 97032 and issued explanations of benefits providing for payments of $25.05 and $25.95 for the service dates in 2008 and 2009, respectively, with the exception of the service date for which Insurer had previously paid $400.00. (Findings of Fact Nos. 7-8.)

Following the hearing, the Hearing Officer issued a decision affirming the Bureau's administrative decision that Providers were not entitled to reimbursement with respect to the applications for fee review numbers 237088 and 250483, because the applications in those cases were filed more than thirty days after issuance of the original explanations of benefits and, hence, were untimely. However, the Hearing Officer reversed the Bureau's remaining administrative decisions, concluding that Providers were entitled to a combined total of $16,143.77 plus interest with respect to the applications for fee review numbers 221926, 225688, 226584 and 253421, because Insurer failed to follow the correct procedures for downcoding the bills and/or denying reimbursement. Insurer then filed a petition for review with this Court. *fn8

Burden Under the Act and the Regulations

Insurer first argues that the Hearing Officer erred in failing to assign to Providers the burden of proving that their bills were supported by adequate documentation. We disagree.

Section 306(f.1)(1)(i) of the Workers' Compensation Act (Act)*fn9 requires employers to provide payment for reasonable surgical and medical services rendered by physicians or other health care providers to claimants entitled to workers' compensation. Section 306(f.1)(2) requires any provider who treats an injured employee to file periodic reports with the employer on a form prescribed by the Bureau which shall include, where pertinent, history, diagnosis, treatment, prognosis, and physical findings. 77 P.S. §531(2). Additionally, section 306(f.1)(3)(i)-(viii) caps a provider's charge at 113% of the applicable Medicare reimbursement rate and requires providers to use the appropriate Medicare procedure codes to identify the provided treatment. 77 P.S. §531(3)(i)-(viii).

The Bureau has set forth specific procedures for the submission of medical bills in its Medical Cost Containment Regulations (Regulations). 34 Pa. Code §§127.1-127.755. A medical provider must submit requests for payment of medical bills on Form 1500, the UB92 Form, or any successor forms required by the Health Care Financing Administration(HCFA)*fn10 for submission of Medicare claims. 34 Pa. Code §127.201(a). In addition, the provider must identify the treatment using the appropriate code under the Healthcare Common Procedure Coding System (HCPCS)-HCFA Common Procedure Coding System. 34 Pa. Code §§127.3, 127.201(b). Employers and insurers are not required to pay for treatment billed until a medical provider submits bills on one of the specified forms. 34 Pa. Code §127.202(a). The Regulations mirror the Act's requirement that providers who treat injured employees submit periodic medical reports on a form prescribed by the Bureau. 34 Pa. Code §127.203. Further, providers are required to state their actual charges for the treatment rendered, and it is the insurer's responsibility to calculate the proper amount of payment for that treatment, which may include the downcoding of a provider's assigned treatment code.*fn11 34 Pa. Code §§127.205, 127.207.

Unlike the Act, the Regulations contain a provision permitting insurers to request additional documentation to support the medical bills submitted for payment by providers, as long as the additional documentation is relevant to the treatment for which payment was sought. 34 Pa. Code ยง127.206. However, the Regulations do not address a provider's failure to submit the same. Moreover, neither the Act nor the Regulations impose a burden on a provider to submit adequate documentation. Furthermore, the record reveals that Providers provided medical records and supporting documentation in each of the six cases. Thus, we ...


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