10-000036 Karina Velasquez vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Tuesday, August 31, 2010.

Summary: Petitioner showed medical necessity for cervical spine MRI before Rx for PT/exercises because she was already exercising. Respondent failed to show that reviewers were aware or considered Petitioner's existing exercise routine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KARINA VELASQUEZ, )

)

Petitioner, )

)

vs. ) Case No. 10-0036

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Eleanor M. Hunter held a final

hearing in this case by video teleconference between sites in

Miami and Tallahassee, Florida, on June 16, 2010.

APPEARANCES

For Petitioner: Jay Levy, Esquire

Jay M. Levy, P. A.

9150 South Dadeland Boulevard,

Suite 1010

Miami, Florida 33156

For Respondent: Sonja P. Mathews, Esquire

Department of Management Services,

Division of State Group Insurance

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether the MRI of Petitioner's cervical spine

performed on April 8, 2009, was medically necessary and,

therefore, covered under the state employee group health plan.

PRELIMINARY STATEMENT

During a neurological physical examination, Petitioner's

physician ordered an MRI of her cervical spine. Petitioner was

billed $5,174.31 for the MRI. Petitioner's level one appeal to

the third party administrator of the plan and her level two

appeal to the Respondent were denied. Respondent's denial

letter of September 24, 2009, notified Petitioner of her right

to request a hearing within 21 days, which she did on

October 15, 2009. The request was referred to the Division of

Administrative Hearings on December 11, 2009. After two

continuances, one at the request of the Respondent and one by

Joint Motion, the hearing was scheduled for and held on June 16,

2010.

At the hearing, in addition to testifying on her own

behalf, Petitioner presented the testimony of Basil M. Yates,

M.D. Petitioner's Exhibits 1 1 (R-4, p. 5, 6, and 11); 2 (R-4, p.

12 and 13); 3 (a jointly introduced R-1); 4 (R-9, p. 3); and 5

(R-9, p.1 and 2) were received in evidence. Respondent

presented the testimony of Edward H. Cottler, M.D.; and Kathy

Flippo, a legal nurse specialist employed by the Respondent;

Diane Hallenbeck, Senior Manager in Clinical Operations at

BCBSF; and, by deposition, Constantine Morros, M.D.

Respondent's Exhibits 1-5, 8, 10, and 12 were received in

evidence. The Transcript of the hearing was received on

June 16, 2010. After two extensions of time were granted,

Proposed Recommended Orders were filed on August 2, 2010.

Unless otherwise indicated, citations to Florida Statutes are to

the 2009 publication.

FINDINGS OF FACT

1. Petitioner Karina Velasquez ("Petitioner") is employed

by the State of Florida. She has participated in the State of

Florida Group Health Insurance Plan ("the Plan") since

January 1, 2009, including on all dates that are relevant to

this proceeding.

2. Respondent Department of Management Services, Division

of State Group Insurance ("Respondent") operates the Plan

through a third party administrator, Blue Cross and Blue Shield

of Florida, Inc. ("BCBSF").

3. On April 1, 2009, Petitioner, then 24 years old, was

examined by Basil M. Yates, M.D., a board-certified neurologic

surgeon. When Dr. Yates took Petitioner's medical history, he

learned that Petitioner had fallen backward striking the back of

her head in 2006. She did not lose consciousness and did not

see a doctor. She had also been in a car accident in January

2003, but also did not see a doctor then because she did not

have insurance. Around August of 2008, Petitioner began to have

occipital cervical headaches (meaning, in the back of neck) and

to experience dizziness. Thinking that her symptoms were

related to her eyes, she had her eyes examined but they were

normal. Petitioner occasionally swims and exercises four times

a week at a gym. She jogs, lifts weights, and does aerobics.

4. Dr. Yates' physical examination of Petitioner showed no

major discomfort from palpitation of the paracervical

musculature (muscles in the area of the cervical spine around

the vertebrae) and greater occipital notches (base of the

brain). Petitioner has one shoulder slightly higher than the

other, but the physical examination was otherwise normal.

5. Following the examination, Dr. Yates ordered a computed

tomography (" CT") scan of Petitioner's brain and an magnetic

resonance imaging ("MRI") of her cervical spine.

6. The CT was ordered to rule out evidence of a prior

contusion, hemorrhage, or tumor. The Plan covered the cost of

the CT.

7. Dr. Yates ordered an MRI to determine if there was

damage to the cervical spine that could be causing muscle spasm

or strain resulting from her fall.

8. On April 8, 2009, Petitioner checked in for the MRI at

the outpatient clinic at Baptist Hospital. She presented her

driver's license and insurance card, and paid a $25 co-pay.

Petitioner was later billed $5,174.31 by Baptist Hospital.

BCBSF contracts with hospitals to provide services and requires

pre-certification, or prior approval, for in-patient services

but not for outpatient services.

9. In December 2007, BCBSF mailed a letter to its

participating physicians, including Dr. Yates, informing them

that, effective January 21, 2008, Magellan Health

Services/National Imaging Associates ("NIA") would be the vendor

to determine medical necessity for advanced imaging procedures.

The letter notes that a voluntary pre-service review process is

available, although it is not binding upon BCBSF when it

subsequently reviews a claim after a service has been provided.

10. Dr. Yates did not know whether, in addition to the

letter, any NIA guidelines were ever sent to his office. He

does know that you need permission for "everything" and his

staff "automatically" requests prior approval for procedures he

orders.

11. BCBSF sent NIA a form requesting a retrospective

review of Dr. Yates' request for authorization for Petitioner's

MRI. NIA received the form on April 17, 2009, and made the

decision to deny coverage on April 22, 2009.

12. The applicable NIA guidelines for cervical spine MRI

are, in relevant part, as follows:

AUTHORIZE:

CHRONIC OR DEGENERATIVE CHANGES (i.e.,

osteoarthritis, degenerative disc disease)

Chronic or degenerative changes with any of

the following new neurological deficits:

Extremity weakness; abnormal gait;

asymmetric reflexes. (Document which

neurological finding.)

Chronic or degenerative changes with

changing or new onset of radiculopathy or

radiculitis (not radicular pain).

Chronic or degenerative changes with new

abnormal EMG or nerve conduction study.

Chronic or degenerative changes with new

extremity numbness or tingling AND trial of

conservative treatment for at least six (6)

weeks.

Chronic or degenerative changes with new

extremity numbness or tingling AND failed

PT.

Exacerbation of chronic back pain

unresponsive to trial of conservative

treatment, including PT/HEP (home exercise

program), for at least six (6) weeks.

Chronic or degenerative changes AND RECENT

(<4 months)="" failed="" pt/hep="" (home="">

program) See General Information for HEP

requirements.

* * *

NEW ONSET OF NECK PAIN (Use this section

ONLY if no other category is appropriate,

check all other categories first.)

New onset of neck pain with any of the

following neurological deficits: extremity

weakness; abnormal gait; asymmetric

reflexes. (Document which neurological

finding.)

New onset of neck pain with radiculopathy or

radiculitis (not radicular pain) with no

improvement after trial of conservative

treatment for at least six (6) weeks.

New onset of neck pain with progression or

worsening of symptoms during the course of

conservative treatment.

New onset of neck pain persisting with

failed PT.

13. On August 6, 2009, BCBSF denied Petitioner's first

level appeal for payment. BCBSF reached its decision after

Petitioner's medical records were reviewed by Alan Feren, M.D.,

a physician employed by NIA who is not licensed in Florida.

Dr. Feren's work was reviewed by Constantine Morros, M.D.

Dr. Morros is licensed in Florida and is board certified in

radiology and nuclear medicine. He has worked for NIA as an

independent contractor for eleven years, reviewing non-Florida

physicians' recommendations to deny coverage for imaging

services ordered by Florida physicians.

14. Dr. Morros considered it important that Petitioner had

neck and head headaches without motor or sensory abnormalities.

There was no indication of muscle weakness or neurological

findings. He noted that the cervical spine films showed

degenerative changes, but Petitioner had no documented course of

physical therapy or home exercise therapy. Under either

category of the guidelines, new onset of neck pain or chronic or

degenerative changes, Dr. Morros agreed with Dr. Feren that the

MRI was not medically necessary and coverage should have been

denied. The category that Dr. Morros relied on in reaching his

decision was new onset of neck pain.

15. If Dr. Morros had seen evidence of a four-to-six week

trial of physician-assisted physical therapy or a home exercise

plan, he would have approved the MRI. Dr. Morros did not have

an opinion whether ordering the MRI for Petitioner was

reasonable or necessary under the circumstances absent

consideration of the guidelines.

16. After the denial of the claim at the first level

review by NIA for BCBSF, Respondent also denied Petitioner's

second level appeal on September 24, 2009. Its decision was

based on the findings of NIA and its conclusion that the MRI was

not medically necessary. The terms of coverage of the Plan are

set forth in the "State Employees' PPO Plan Group Health

Insurance Plan Booklet and Benefits Document" ("the Benefits

Document"). The Benefits Document provides that, as determined

by BCBSF clinical staff and Respondent, services that are not

medically necessary are excluded from coverage.

17. The Benefits Document includes the following

definition:

Medically necessary . . . services required

to identify or treat the illness, injury,

condition, or mental and nervous disorder a

doctor has diagnosed or reasonable suspects.

The service must be:

1. consistent with the symptom, diagnosis

and treatment of the patient's condition;

2. in accordance with standards of good

medical practice;

3. required for reasons other than

convenience of the patient or the doctor;

4. approved by the appropriate medical body

or board for the illness or injury in

question; and

5. at the most appropriate level of medical

supply, service, or care that can be safely

provided.

The fact that a service is prescribed by a

doctor does not necessarily mean that the

service is medically necessary. BCBSF and

DSGI determine whether a service or supply

is medically necessary.

18. In addition to relying on the results of the NIA/BCBSF

review, Respondent, at level two, relied, in part, on Dr. Yates'

notes from his examination of Petitioner on April 1, 2009, as

follows:

Discussion: A scan of the brain and MRI of

the cervical spine would be appropriate.

This is most likely a[n] occipital headache

from muscle sprain from the fal[l] back. It

would be best benefited by a cervical,

shoulder exercise program. (Emphasis added.)

19. Because he suggested that the condition that most

likely causing headaches could improve with exercise, Respondent

takes the position that Dr. Yates should have prescribed a six-

week trial of the cervical, shoulder exercise program before he

decided to order an MRI. Dr. Yates however, who has fifty years

of experience as a neurologic surgeon, believed that he might

have been wrong and that the cervical spine could have been

damaged when Petitioner fell. That condition could not have

been helped by physical therapy and could only be determined by

an MRI.

20. It was Dr. Yates' opinion that the fact that

Petitioner had been exercising regularly for several years

indicated that physical therapy would not be effective. The

point of physical therapy after one assumes that muscles have

been damaged by an acute injury is to reactivate and stimulate

the muscles, and to increase range of motion so that the muscles

can be exercised. Dr. Yates initially determined that

Petitioner was past the point of physical therapy. There is no

evidence whether Dr. Feren or Dr. Morros knew about Petitioner's

exercise routine and how that might have affected their

opinions.

21. The NIA Authorization Detail form supports Dr. Yates'

decision to take into account Petitioner's exercise routine 2 and

contradicts the decisions of Dr. Feren and Dr. Morros. The

following are questions and answers concerning medical

necessity:

MEDICAL NECESSITY EVALUATION

QUESTION ANSWER

Why is this study being ordered?

Trauma/Injury Yes

What was the date of initial

onset? 3 years

ago

Has there been any treatment

or conservative therapy? Yes

What treatment or conservative

therapy was given? Home therapy,

medication

What are the primary

symptoms? HA/cervical

pain

Please provide additional

clinical reasons for this study. None

22. On May 5, 2009, Dr. Yates reviewed the results of the

tests with Petitioner and her husband. The MRI was unremarkable

other than showing mild degenerative changes with minimal bulges

of three discs and tiny herniation of another disc. The brain

scan was unremarkable. From this Dr. Yates concluded that the

headaches are not caused by "an organic basis from the spinal

cord, nerve roots, but are more related to muscular tension and

inadequacy." He reported further that:

The only correction for this is to

strengthen the supra and parscapular and

paracervical musculature. We have sent the

patient to therapy for a month to get her

some relief and teach her the exercises she

should be doing. We gave the patient

Naprosyn and Darvocet for discomfort. No

other care or treatment should be required.

23. To Dr. Yates, it was unusual to find degeneration of

the cervical spine in a 24-year-old. Without the MRI, Dr. Yates

would not have known of that condition or that Petitioner,

although already exercising regularly, needed to be taught to

the best exercises to strengthen muscles in her spine.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

25. Respondent, the Department of Management Services,

Division of State Group Insurance, administers the state group

insurance program, referred to in this Order as the Plan.

§§ 110.123(3)(c) and (5), Fla. Stat.

26. Subsection 110.123(5)(c), Florida Statutes, gives

Respondent the authority to contract with private entities in

the administration of the health insurance program, as it has

done with BCBSF, which has, in turn, contracted with NIA.

27. Petitioner has the burden of proving by a

preponderance of the evidence that her claim qualifies for

coverage. See State Comprehensive Health Ass'n v. Carmichael ,

706 So. 2d 319 (Fla. 4th DCA 1997). Respondent "bears the

burden of proving the applicability of a claimed policy

exclusion." See Herrera v. C.A. Seguros Catatumbo , 844 So. 2d

2003).

28. In this case, Petitioner has met the burden of proving

that the NIA medical necessity evaluation form is consistent

with her doctor's testimony and meets the NIA guidelines for

approval of a cervical spine MRI.

29. Respondent's sole reason for the exclusion, the

absence of six weeks of home exercise therapy, is not supported

by the NIA evaluation of medical necessity or the unrebutted

testimony of Petitioner's doctor.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Respondent

enter a final order approving coverage for the MRI claim

submitted by Petitioner.

DONE AND ENTERED this 31st day of August, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of August, 2010.

ENDNOTES

1/ Petitioner used and introduced into evidence some of

Respondent's Exhibits. The original exhibit number is indicated

by the symbol "R-#."

2/ See Respondent's Exhibit 2.

COPIES FURNISHED :

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Sonja P. Mathews, EsquireDepartment of Management ServicesOffice

of the General Counsel4050 Esplanade Way, Suite 260Tallahassee,

Florida 32399Jay M. Levy, EsquireJay M. Levy, P.A.9150 South

Dadeland Boulevard,

Suite 1010Miami, Florida 33156

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.