SOAH DOCKET NO M5 TWCC MR NO. M DECISION AND ORDER

Transcription

1 SOAH DOCKET NO M5 TWCC MR NO. M TEXAS MUTUAL INSURANCE COMPANY, Petitioner V. MICHAEL M. STELZER, D.C., Respondent BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS DECISION AND ORDER Texas Mutual Insurance Company (Carrier) challenged the decision of the Medical Review Division (MRD) of the Texas Workers Compensation Commission (TWCC or Commission) ordering it to reimburse Michael M. Stelzer, D. C. (Provider), for administering diagnostic needle electromyography (EMG) to. (Claimant) on May 16, Carrier argued that the service was outside the scope of Respondent s practice but did not challenge the medical necessity of the procedure. 1 On March 22, 2004, the Medical Review Division (MRD) of TWCC ordered Carrier to reimburse Provider in the amount of $ on the basis that Provider established that the service was within a chiropractor s scope of practice. 2 The Administrative Law Judge (ALJ) concludes that Carrier failed to meet its burden of proof to demonstrate that Provider was acting outside his scope of practice. Provider is entitled to reimbursement for the service rendered on May 16, Carrier initially denied payment under denial code K. This code covers several matters concerning the qualifications of a health care provider to provide a service. Specifically, this code covers services by providers who have been removed from TWCC s approved doctor list, care not properly services supervised, outside the provider s scope of practice, and services that the provider s licensing board had restricted. (Denial codes on TWCC-62 Form). Later pleadings by Carrier demonstrate that scope of practice was the Carrier s concern in this case. 2 In its Decision, the MRD denied reimbursement of $ for other services provided on May 16, 2003, including a nerve conduction velocity (NCV) study. Provider did not challenge the Carrier s denial of reimbursement and did not request a contested-case hearing on the portion of the MRD Decision adverse to it. Carrier had denied payment for those services on the basis they were above permitted reimbursement amounts and/or above a negotiated contract price (Denial codes C and F. 1

2 The hearing in this matter convened on April 12, 2005, in Austin, Texas, with ALJ Cassandra Church presiding. The record-closing date was extended to April 19, 2005, to allow the parties to submit authority on the legal issue. Carrier was represented by R. Scott Placek, attorney. Provider was represented by Alan D. Tysinger, attorney. Notice was proper and jurisdiction established in this case. I. DISCUSSION A. History of Claim On, Claimant injured his right shoulder while lifting objects at his job on an assembly line. Between his date of injury and May 16, 2003, Claimant was treated conservatively. Claimant had been treated with passive modalities, active physical rehabilitation or therapy, and also a steroid injection in his shoulder. 3 Despite these treatments, Claimant continued to report severe pain and limitations in his range of motion through May On May 16, 2003, on referral from Gilbert Gonzales, D.C., Provider administered both motor and sensory nerve conduction velocity (NCV) tests and a needle EMG of muscles in Claimant s right shoulder and surrounding area. Provider conducted the procedures to provide diagnostic information to Dr. Gonzales, Claimant s treating doctor. Provider found no indication of irritation of the nerve roots or impingement of the median nerve. At the time Provider administered this test, Provider was a chiropractor licensed in Texas and was on the Commission s approved-doctor list. He had completed an 120-hour post-graduate program in electrodiagnosis from an accredited institution. B. Analysis 3 Provider Exh. 1, pp Carrier Exh. 2, pp

3 The Parties had no substantial dispute in regard to the facts in this case, i.e., the purpose for the testing, the manner in which the test was conducted, the medical necessity of the test, or Provider s qualification to perform it. There is no dispute that Provider performed the testing under terms of guidance documents issued by the Texas Board of Chiropractic Examiners (TBCE). Rather, the dispute between the parties centered on the law applicable to determine Provider s scope of practice. Relying primarily on an Attorney General s opinion, 5 Carrier argued that the testing was outside the Provider s scope of practice, hence Carrier should not be required to pay for the procedure. 6 Carrier also argued that the TBCE acted improperly in authorizing chiropractors to perform it. Provider argued that the testing was within the Provider s scope of practice, as determined by the TBCE, and that the TBCE s intepretation was consistent with legislative intent as to the treatment of procedures such as needle EMG and acupuncture. 7 The Commission s rule regarding scope of practice appears in the General Instructions section of the 1996 Medical Fee Guideline (1996 MFG) 8 and states as follows:....the MFG does not supersede scope of practice limitations for [Health Care Providers] HCP specialities. The listed maximum allowable reimbursements (MAR) only apply when a licensed HCP is performing those services within the scope of practice for which the provider is licensed, or when a non-licensed individual is rendering care under the direct on-site supervision of a licensed HCP..... (Emphasis in original). In promulgating this rule, the Commission announced it would defer to a HCP s regulatory board in determining what constitutes appropriate practice rather than formulating its own practice definitions. In administering this rule, the Commission acted in a manner consistent with that policy by following the TBCE s guidance documents in approving the payment. 5 Op. Tex. Att y Gen. No. DM-472 (1998). 6 Carrier s Index of Authorities, April 14, Provider s List of Authorities, April 19, TEX. ADMIN. CODE The Parties argued this case under the provisions of the 1996 MFG, therefore this case was therefore reviewed under the terms of the 1996 MFG in regard to scope of practice. The 2002 Medical Fee Guideline provides for chiropractors to be reimbursed for services provided within the scope of their practice act. 28 TEX. ADMIN. CODE (a)(3). This guideline is effective for services provided on or after August 1,

4 In its Decision, the MRD referenced Provider s completion of the 120-hour post-graduate course as the rationale for its decision that Provider was acting within his scope of practice. 9 This is a direct reference to the TBCE s January 25, 2002, opinion stating that the Board would consider the completion of an 120-hour post-graduate program in electrodiagnosis from an accredited institution to be due diligence on the part of a chiropractor performing an electrodiagnostic procedure. 10 In a previous opinion, issued on May 17, 1998, the TBCE ruled that needle EMG was within the scope of chiropractic practice in Texas in order to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal condition of the system. 11 The TBCE s rulings are at apparent odds with Opinion DM-472, which concluded that needle EMG is not within a chiropractor s scope of practice. The TBCE issued both pronouncements after that opinion was issued. There have been no reported District Court or appellate decisions resolving this conflict. As this conflict has not yet been resolved by the courts, the ALJ cannot agree with Carrier s underlying hypothesis that an individual provider must second guess the legal correctness of his or her own regulatory board s actions in order to qualify for compensation under the Texas Workers Compensation Act. While the Carrier legitimately raised the scope of practice issue, it does not follow that this reason for denial necessarily compels the Commission to differ from the scope of practice as defined by the appropriate regulatory agency. Rather, the Commission s scope of practice rule provides a safe haven for HCP s in that they can rely on their own regulatory body s rules, knowing that they will not run afoul of a conflicting set of practice rules promulgated by the Commission. F. Summary 9 Carrier Exh. No. 1, Tab Carrier Exh. No. 1, Tab 5 (TBCE, Scope of practice clarification letter to all licensees). 11 Carrier Exh. No.1, Tab. 6 (TBCE Opinion on Acupuncture, Manipulation Under Anesthesia and Needle EMG as Being Within the Scope of Practice, issued September 11, 1997, and amended May 7, 1998). 4

5 In sum, there is no factual disagreement that Provider acted consistently with the practice rulings of the TBCE in performing the needle EMG on May 16, 2003, or that the Commission followed the terms of its own rule, the 1996 MFG, in awarding reimbursement. Therefore, the ALJ concludes that Provider is entitled to reimbursement for performing a needle EMG diagnostic procedure on May 16, Based on the conclusions above, this Decision need not reach the issue of whether the TCBE properly decided that chiropractors could properly perform needle EMG s or other electrodiagnostic procedures. The propriety or legality of that board s action is not at issue in this case. II. FINDINGS OF FACT 1. On, Claimant injured his right shoulder on the job. 2. Texas Mutual Insurance Company (Carrier) was the responsible insurer. 3. Between, and May 16, 2003, Claimant was treated with passive modalities, active physical therapy, and a steroid injection to Claimant s right shoulder. 4. In May 2003, Claimant continued to experience severe pain and limited range of motion in his shoulder. 5. On May 16, 2003, Michael M. Stelzer, D.C. (Provider), administered both motor and sensory nerve conduction velocity (NCV) and a needle electromyography (EMG) of Claimant s right shoulder muscles and the area surrounding his shoulder. 6. The electrodiagnostic studies performed by Provider on May 16, 2003, showed no indication of nerve impingement or nerve root irritation. 7. The tests Provider administered on May 16, 2003, were for the purposes of diagnosing Claimant s condition and were requested by Claimant s treating doctor. 8. On May 16, 2005, a needle EMG was medically necessary to diagnose or treat Claimant s compensable injury. 9. On May 16, 2003, Provider was on the approved-doctor list promulgated by Texas Workers Compensation Commission (TWCC or Commission). 10. As of May 26, 2003, Provider was a licensed chiropractor in good standing in the State of Texas and subject to the regulatory authority of the Texas Board of Chiropractic Examiners (TBCE). 5

6 11. On May 26, 2003, Provider had completed a 120-hour post-graduate training program in electrodiagnosis offered by the National University of Health Sciences, an accredited institution. 12. Carrier denied payment for the needle EMG procedure on the grounds that it was outside the scope of practice for a chiropractor licensed in Texas. 13. Provider sought review by the Medical Review Division (MRD) of TWCC of Carrier s denial of payment. 14. On March 22, 2004, the MRD ordered Carrier to reimburse Provider in the amount of $ for the needle EMG, concluding that Provider had demonstrated that he was eligible under the standards set by the TBCE to perform the procedure. 15. On May 17, 1998, the TBCE ruled that performance by a chiropractor of a needle EMG for the purpose of analyzing, examining, or evaluating the biomechanical condition of the spine and musculoskeletal system was within the scope of the Texas Chiropractic Act. 16. On January 25, 2002, the TBCE ruled that the Board would consider that a chiropractor exhibited due diligence, within the meaning of the Texas Occupation Code governing practice standards, if he or she completed and passed a 120-hour course in electrodiagnostics at an accredited chiropractic college before performing electrodiagnostic procedures. 17. In performing a needle EMG on May 15, 2003, Provider was acting within his scope of practice as defined by the TBCE. 18. On April 11, 2004, Carrier requested a hearing on the MRD Decision. 19. On May 4, 2004, the Commission issued a notice of hearing that included the date, time, and location of the hearing, the applicable statutes under which the hearing would be conducted, and a short, plain statement of matters asserted. 20. Administrative Law Judge Cassandra Church conducted a hearing on the merits on April 12, 2005, and the record-closing date was extended to April 19, 2005, to permit parties to submit legal authority. II. 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. LAB. CODE ANN and TEX. GOV'T CODE ANN. ch Carrier timely requested a hearing, as specified in 28 TEX. ADMIN. CODE

7 3. Proper and timely notice of the hearing was provided in accordance with TEX. GOV T CODE ANN and Carrier, as the petitioning party, has the burden of proof in this proceeding pursuant to TEX. LAB. CODE ANN , 1 TEX ADMIN. CODE (b), and 28 TEX. ADMIN. CODE ' (a). 5. Carrier failed to meet its burden of proof to show that Provider acted outside the scope of practice for chiropractors, as the Texas Board of Chiropractic Examiners (TBCE) has interpreted the Texas Occupation Code, ch. 201, or its predecessor, the Texas Chiropractic Act. 6. Carrier failed to meet its burden of proof to show that the Provider provided services outside the scope of practice rules applicable to the treatment of injured workers, as governed by the 1996 Medical Fee Guideline, 28 TEX. ADMIN. CODE ORDER IT IS ORDERED that Texas Mutual Insurance Company reimburse Michael Steltzer, D.C., for a needle EMG performed on May 16, SIGNED June 17, CASSANDRA J. CHURCH ADMINISTRATIVE LAW JUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS 7