Texas Workers’ Compensation

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453-99-2019-m4-etal
March 8, 2020

DECISION AND ORDER

Paul J. Harph (Provider) appealed the findings and decisions of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in the above causes. The findings and decisions denied reimbursement for surgical procedures performed by Dr. Harph. The issues presented relate to the applicability of modifiers -65 and -22, under the Commission’s medical fee guidelines, to the surgical procedure used. In this decision, the Administrative Law Judge (ALJ) find that Provider is not entitled to reimbursement.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter was held December 20, 2001, at the Hearings Facility of the State Office of Administrative Hearings, Stephen F. Austin Building, Suite 1100, 1700 North Congress Avenue, Austin, Texas, with ALJ John H. Beeler presiding. Texas Workers’ Compensation Insurance Fund (the Fund) appeared through its attorney, Jeff Boggess. Provider appeared by telephone and represented himself. The Commission was represented by its assistant general counsel, Timothy Riley. After the introduction of evidence and arguments, the hearing concluded the same day. The record closed on January 25, 2002, after the parties submitted written closing arguments.

II. DISCUSSION

A. Modifier -65

The facts in all of the consolidated cases are basically the same. Though they involve different patients and, therefore, to a small extent different situations, the differences are not significant to the issues here. It is undisputed that the Medical Fee Guideline (MFG) applies to this case. What is in dispute is what payment the MFG allows for the procedure Dr. Harph performed in each case. Each of the patients underwent spinal surgery. The actual procedure done to the spine was the work of a surgeon other than Dr. Harph. Dr. Harph did the approach, or anterior instrumentation. The Fund’s position is that anterior instrumentation is not a primary, but a secondary procedure under the MFG (Surgery Ground Rule I.E.1):

Posterior or anterior instrumentation (codes 22840-22845) is listed separately in addition to code(s) for fracture, dislocation or arthrodesis of the spine (codes 22305-22812). The instrumentation codes should be listed as a secondary procedure, without further reduction . . . .

In addition, the MFG has a special rule that mandates the use of the co-surgeon modifier for arthrodesis, when the surgical approach is performed by a different surgeon. Surgery Ground Rule I.E.2.d. states:

When anterior arthrodesis approach is performed by a different surgeon, both surgeons bill using the anterior arthrodesis CPT code with modifier -65.

Without that rule, the Fund contends, modifier 65 would not even be available for the arthrodesis. That is because the approach, performed by the vascular surgeon, and the fusion itself, performed by the orthopedic surgeon, are not separate procedures.

The MFG’s explanation of modifier -65 is set forth below:

Co-surgeons: If two surgeons each perform separate procedures through the same incision, the total value for each surgeon’s primary procedure shall be reimbursed at 75% of the MAR for each primary surgical procedure. Each surgeon’s primary procedure shall be identified by adding the modifier “-65” to the procedure code.

There is no special rule mandating the use of modifier 65 for instrumentation. Therefore, in the Fund’s view, the co-surgeon modifier is not available for that procedure and it can only pay 100% of MAR. It paid that amount to the primary doctor on the theory that he was the orthopedic surgeon and actually performed the instrumentation. Dr. Harph exposed the vertebrae in preparation for the orthopedic surgeon’s work. Because Dr. Harph was performing a secondary procedure, his payment should come from an agreement between himself and the primary surgeon.

Dr. Harph’s position is that the surgery required the skill of two different surgeons, and he performed the most difficult of the procedures.

B. ALJ’s Analysis of the Modifier -65 issue

The ALJ does not question Dr. Harph’s description of the procedure. Nevertheless, the MFG governs payment for the procedures in question.

Under the MFG, modifier -65 can be applied only to separate primary procedures performed through the same incision and also to arthrodesis and arthrodesis approach, if performed by separate surgeons. Instrumentation is explicitly defined as a secondary procedure. There is no specific provision allowing the instrumentation approach to be treated as if it were a separate procedure. Therefore, modifier -65 cannot be used for instrumentation.

The issue with respect to the -65 modifier’s use on a secondary procedure has been addressed in prior hearings before SOAH. In SOAH Docket No. 453-00-1381.M4, issued on November 9, 2001, ALJ Owens wrote:

Dr. Harph’s use of modifier -65 for instrumentation was also improper, because the MFG does not allow this modifier to be used for a secondary procedure such as instrumentation. This issue was addressed in a Decision and Order issued on June 1, 1999, by Henry D. Card in Texas Workers’ Compensation Insurance Fund v. Texas Workers’ Compensation Commission and Paul J. Harph, Docket No. 453-98-1398.M4. In that decision, ALJ Card held that modifier -65 cannot be used with the instrumentation procedure because instrumentation is explicitly defined by the MFG as a secondary procedure, while the MFG provides that modifier -65 can be applied only to separate primary procedures performed through the same incision and also to arthrodesis and arthrodesis approach, if performed by separate surgeons. The ALJ agrees with this holding in the earlier decision, and so holds here. Therefore, Dr. Harph failed to meet his burden of proving by a preponderance of the evidence that he is entitled to reimbursement for the instrumentation.

The facts and issues in the present case are the same as those discussed by ALJ Owens and addressed by ALJ Card. Dr. Harph is not entitled to reimbursement because the -65 modifier was not proper.

C. Modifier -22

Modifier -22 requires four types of documentation pursuant to Commission rules:

1.Documentation that the service was performed;

  1. 2.Documentation that the service was medically necessary;
  2. 1.Documentation that supports the service as coded; and
  3. 2.Documentation of Procedure to establish the value of the service if no MAR is listed.

Dr. Harph argues that he is entitled to payment for CPT Codes with the additional modifier -22 representing unusual service based on information in his operative reports. The Fund presented expert testimony to contradict Dr. Harph’s assertion of unusual service, but that issue does not have to be decided as nothing presented by Dr. Harph establishes the value of the service performed as required by number 4 above. With no documentation provided, payment cannot be ordered.

III. Findings of Fact

  1. 1.Respondent Paul J. Harph, M.D. is a vascular surgeon.
  2. 2.Dr. Harph billed the Texas Workers’ Compensation Insurance Fund (the Fund) for surgical procedures using modifiers -65 and -22 in several cases.
  3. 2.The cases described in Finding of Fact No. 2 were consolidated in Docket No. 453-99-1591.
  4. 2.The Fund denied payment to Dr. Harph.
  5. 2.Dr. Harph was the secondary surgeon for the cases described in Finding of Fact No. 2.
  6. 2.Dr. Harph did not provide documentation of value of the services performed and billed with the -22 modifier.
  7. 2.The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission denied payment for the services billed by Dr. Harph.
  8. 2.Dr. Harph appealed the decision of the MRD.
  9. 2.The hearing was held December 21, 2001 at the offices of the State Office of Administrative Hearings in Austin, Texas with Administrative John H. Beeler presiding. Attorney Jeff Boggess represented the Fund. Timothy P. Riley represented the Commission. Dr. Harph participated by telephone and represented himself. After the presentation of evidence and arguments, the hearing was adjourned. The record was closed January 25, 2002, after the parties submitted written closing arguments.

V. Conclusions of Law

  1. 1.The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), TEX. LAB. CODE ANN. chapter 401 et seq.
  2. 1.The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to TEX. LAB. CODE ANN. §413.031(d) and TEX. GOV’T CODE ANN. chapter 2003.
  3. 1.Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN.§2001.052.
  4. 1.Under the MFG, modifier 65 cannot be used for instrumentation.
  5. 1.Reimbursement to Dr. Harph is not proper under MFG for modifiers -22 because no documentation of value of services was provided.

ORDER

IT IS, THEREFORE, ORDERED that Respondent, the Texas Workers’ Compensation Insurance Fund, shall not be required to reimburse Paul J. Harph, M.D.

Signed this 25th Day of March 2002.

JOHN H. BEELER

Administrative Law Judge

State Office of Administrative Hearings

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At a Glance:

Title:

453-99-2019-m4-etal

Decision Type:

SOAH Decision

Date:

March 8, 2020

SOAH Type:

Medical Fees
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