12-002499 Ffva Mutual Insurance Company vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Friday, November 16, 2012.

Summary: Petitioner failed to prove that its reimbursement to a health care provider was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FFVA MUTUAL INSURANCE COMPANY , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2499

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS ' )

COMPENSATION , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on September 26, 2012, via video teleconference with sites

in Orlando and Tallahassee, Florida. The parties appeared before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Julie Lewis Hauf, Esquire

Law Office of Julie Lewis Hauf, P.L.

PMB 315

15880 Summerlin Road, No. 300

Fort Myers, Florida 33908

For Respondent: Mari H. McCully, Esquire

Department of Financial Services

Division of Workers ' Compensation

200 East Gaines S treet

Tallahassee, Florida 32399 - 4229

STATEMENT OF THE ISSUE

The issue is whether FFVA Mutual Insurance Company (FFVA)

should be required to pay an additional $4,169.00 (for a total of

$13,155.60) to a health care provider for a pr e - authorized

scheduled outpatient surgery.

PRELIMINARY STATEMENT

On April 24, 2012, the Department of Financial Services,

Division of Workers ' Compensation, Office of Medical Services

(Department), issued a Workers ' Compensation Medical Services

Reimbursem ent Dispute Determination directing FFVA to pay

Summerlin Bend Surgery Center (Summerlin) 1/ reimbursement of

$13,155.60 for services provided to Patient R.R. (the Patient).

FFVA, having previously determined that $8,985.60 was the

appropriate payment for the claim, filed a Petition for Formal

Administrative Hearing (Petition) to challenge the Department ' s

determination. On July 19, the Department forwarded the Petition

to DOAH, which scheduled and conducted the proceeding.

Joint Exhibits A through I 2 / w ere admitted into evidence.

FFVA presented one witness, Julie Dunn. FFVA ' s Exhibit 1 was

admitted into evidence over objection. The Department presented

the testimony of Arlene Cotton. The Department did not submit

any additional exhibits.

On October 5 , 2012, Petitioner ' s counsel 3 / filed a " Notice of

Filing Designated E - m ail Address Pursuant to Rule 2.516,

Fla.R.Jud.Admin ," designating a particular e - mail for service.

The one - volume Transcript was filed on October 16, 2012.

The parties were advised tha t their proposed recommended orders

(PROs) were due ten days from the filing of the T ranscript. Both

parties timely submitted their PROs, and each has been considered

in the preparation of this Recommended Order.

Prior to the hearing, the parties filed a Joint Pre - hearing

Stipulation containing a statement of admitted facts that have

been reviewed and are incorporated herein as necessary.

FINDING S OF FACT

1. FFVA, an insurance company, is a " carrier " as defined in

section 440.13(1)(c), Florida Statutes (2 01 2 ). 4 /

2. Summerlin is a health care provider as defined in

section 440.13(1)(h) and is located in Fort Myers, Florida.

3. On March 1, 2012, the Patient, an insured of FFVA,

underwent a pre - authorized arthroscopic knee surgery , which was

performed at Su mmerlin.

4. The surgery was performed by Fletcher A. Reynolds, III,

M.D. Dr. Reynolds dictated an O perative R eport wherein he

described the "P rocedures P erformed " as:

Right knee arthroscopy, subtotal medial

meniscectomy of bucket - handle medical

meniscus tear, major synovectomy, medial

compartment chondroplasty, and abrasion

chondroplasty of the inferior medial aspect

of the trochlea down to bleeding bone. [ 5 / ]

The O perative R eport also contained a section, " P rocedure in

D etail, " which explained the extent of the surgery performed on

the Patient ' s knee.

5. The Current Procedural Terminology (CPT) codes for use

to bill for the Patient ' s procedures include:

29879 abrasion arthroplasty (includes

chondroplasty where necessary) or multiple

drilling or microfra cture;

29881 with meniscetomy (medial OR lateral,

including any meniscal shaving); and

29875 synovectomy, limited ( eg, plica or

shelf resection) (separate procedure).

6. A modifier is a number added to a particular CPT code

that explains the procedur e and what, if anything , is unusual

about it. The two modifiers at issue are " 51 " and " 59. "

Modifier 51 is defined as:

Multiple Procedures: When multiple

procedures . . . are performed at the same

session by the same provider, the primary

procedure or s ervice may be reported as

listed. The additional procedure(s) or

service(s) may be identified by appending

modifier 51 to the additional procedure or

service code(s). Note: This modifier

should not be appended to designated " add -

on " codes (see Appendix D).

CPT 2010, ® American Medical Association, Appendix A -

Modifiers , page 529 .

Modifier 59 is defined as:

Distinct Procedural Service: Under certain

circumstances, it may be necessary to

indicate that a procedure or service was

distinct or independent fr om other non - E/M

[evaluation and management] services

performed on the same day. Modifier 59 is

used to identify procedures/services, other

than E/M services, that are not normally

reported together, but are appropriate under

the circumstances. Documenta tion must

support a different session, different

procedure or surgery, different site or

organ system, separate incision/excision,

separate lesion, or separate injury (or area

of injury in extensive injuries) not

ordinarily encountered or performed on the

same day by the same individual. However,

when another already established modifier is

appropriate it should be used rather than

modifier 59. Only if no more descriptive

modifier is available, and the use of

modifier 59 best explains the circumstances,

s hould modifier 59 be used. Note: Modifier

59 should not be appended to an E/M service.

To report a separate and distinct E/M

service with a non - E/M service performed on

the same date, see modifier 25.

CPT 2010, ® American Medical Association, Appendix A -

Modifiers , page 530 .

7. Summerlin submitted a bill to FFVA identifying the

following CPT codes and charges for each procedure done on the

Patient ' s knee: 29879RT ($8,338.00); 29881RT ($8,338.00); and

29875 51 RT ($8,338.00). Summerlin ' s total bill was $2 5,014 .00.

8. FFVA paid Summerlin $8,986.60 , $5,836.60 for the primary

procedure ( CPT code 29879RT ) and $3,150.00 for the second

procedure ( CPT code 29881RT ) , but disallowed any payment for CPT

code 2987551RT .

9. FFVA issued an Explanation of Bill Review (EOBR)

explaining that the total recommended allowance for reimbursement

was $8,986.60. FFVA ' s " EOBR CODE DESCRIPTION " listed number " 69 "

to justify its decision. As explained on the EOBR:

69 PAYMENT DISALLOWED: BILLING ERROR:

CORRECT CODING INITIATIV E GUIDELINES INDICATE

THIS CODE IS A COMPREHENSIVE COMPONENT OF

CODE XXXXX BILLED FOR SERVICE(S) PROVIDED ON

THE SAME DAY (29875 IS A COMPREHENSIVE

COMPONENT OF 29879). [ 6 / ]

10. Summerlin timely filed a " Petition for Resolution of

R eimbursement D ispute," and FFVA timely filed a " C arrier R esponse

to P etition for R esolution of R eimbursement D ispute , " each

pursuant to section 440.13(7).

11. The Department issued its " W orkers ' C ompensation

M edical S ervices R eimbursement D ispute D etermination " wherein it

found that FFVA improperly adjusted the reimbursement, but only

as to the charges billed for CPT code 2987551RT.

12. The uncontroverted facts are that the Patient underwent

a pre - authorized arthroscopic surgical procedure to the knee.

Summerlin ' s invoice for billing provided to FFVA accurately

reflected the multiple procedures performed by the surgeon, as

did the O perative R eport.

13. Julie Dunn, FFVA ' s " medical compliance person , " has

worked for several insurance companies over her 25 - year career.

Her descr iption of the process of reviewing medical bills and

coding , a " complicated process because there ' s [sic] multiple

resources that are adopted . . . , " is credible. However, in

this instance, Ms. Dunn , who is not a professional coder (but is

a member of a professional coder organization), did not review

the EOBR until after Summerlin filed a reimbursement dispute.

Although helpful, her testimony is not without doubt. Ms. Dunn

never reviewed the O perative R eport for the Patient. Further,

FFVA only brought up the " 59 " modifier concern after the EOBR was

issued, and the request for additional payment was made.

14. Arlene Cotton, the Department ' s registered nurse

consultant, is tasked with reviewing cases where a provider is

disputing the reimbursement recei ved. Ms. Cotton holds a

bachelor ' s degree and a master ' s degree in nursing.

Additionally, she is a certified professional coder who has

reviewed hundreds of cases involving ambulatory surgical centers.

Ms. Cotton reviewed Summerlin ' s petition for reimbu rsement by

reviewing the CPT codes and the O perative R eport for the Patient.

Summerlin properly coded the Patient ' s three procedures.

15. Ms. Cotton credibly explained the three procedures via

the codes as follows: CPT code 29879 , the primary procedur e was

an arthroplasty which was done in both the medial and the

patellofemoral compartments of the knee; CPT code 29881 was a

meniscectomy which was done in the medial compartment; and CPT

code 29875 was a synovectomy which was done in the medial aspect,

t he intercond y lar, the anterior lateral , and the patellofemoral.

Further, Ms. Cotton described two additional synovectomies (for a

total of four synovectomies ) performed that were detailed in the

Patient ' s Operative Report . However, Summerlin only billed f or

one synovectomy.

16. FFVA ' s claim that Summerlin should have used modifier

" 59 " instead of modifier " 51 " to " identify that procedure code

29875 was a . . . unique identifiable or a separately

identifiable service " is misplaced. The Florida Workers '

C ompensation Reimbursement Manual for Ambulatory Surgical

Centers, 2011 Edition (CRM ABS) , re quires that a surgical center

use modifier 51 .

1 7 . There was no credible evidence that Summerlin

incorrectly billed for the three procedures. FFVA failed to

appre ciate the significance of modifier " 51 " and failed to

appropriate ly reimburse Summerlin.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 440.13, 120.569 and 120 .57, Fla . Stat .

1 9 . The Department is the state agency charged with

administering Workers ' Compensation Law, chapter 440, Florida

Statutes, which directs the Department to resolve reimbursement

disputes when they arise between a health care provider and t he

employer or carrier responsible from the provision of workers '

compensation benefits to an injured employee/claimant. In this

case, the Department determined that FFVA ' s refusal to reimburse

Summerlin the additional $4,169.00 was improper.

20. Secti on 440.13(7) provides in pertinent part:

(c) Within 60 days after receipt of all

documentation, the department must provide to

the petitioner, the carrier, and the affected

parties a written determination of whether

the carrier properly adjusted or disall owed

payment. The department must be guided by

standards and policies set forth in this

chapter, including all applicable

reimbursement schedules, practice parameters,

and protocols of treatment, in rendering its

determination.

(d) If the department fin ds an improper

disallowance or improper adjustment of

payment by an insurer, the insurer shall

reimburse the health care provider,

facility, insurer, or employer within

30 days, subject to the penalties provided

in this subsection.

21. Section 440.13 doe s not address which party bears the

burden of proof in this proceeding. However, the general rule is

that " the burden of proof, apart from statute, is on the party

asserting the affirmative of an issue before an administrative

tribunal. " Balino v. Dep ' t of HRS , 348 So. 2d 349, 350 (Fla. 1st

DCA 1977) ; Dep ' t of Trans p . V. J.W.C. Co. , 396 So. 2d 788 (Fla.

1st DCA 1981). In this instance, FFVA petitioned the Department

for affirmative relief, i.e. , a determination that FFVA properly

adjusted Summerlin ' s pay ment. Accordingly, FFVA, as the party

asserting that it properly reimbursed Summerlin, bears the burden

of proving its position by a preponderance of the evidence.

Fairpay Solutions, Broadspire S er vs . , In c ., & Crum S er vs . v. Fla.

Ag. for Health Care Admi n & Miami Beach Healthcare Group, LTD. ,

969 So. 2d 455 (Fla. 1st DCA 2007); Dep ' t of Banking & Fin., Div.

of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

934 (Fla. 1996); Fla. Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d

778, 788 (Fla. 1st D CA 1981); also see § 120.57(1)(j) , Fla. Stat.

( " Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute. " ). A preponderance

of the evidence is d efined as " the greater weight of the

evidence " or evidence that " more likely than not " tends to prove

a certain proposition. Fireman ' s Fund Indemnity Co. v. Perry ,

5 So. 2d 862 (Fla. 1942); Gross v. Lyons , 763 So. 2d 276, 280

n.1. (Fla. 2000).

22 . Sect ion 440.13(12) provides in pertinent part:

(a) A three - member panel is created . . . .

The panel shall determine statewide

schedules of maximum reimbursement

allowances for medically necessary

treatment, care, and attendance provided by

. . . ambulatory s urgical centers. . . .

Annually, the three - member panel shall adopt

schedules of maximum reimbursement

allowances for . . . ambulatory surgical

centers, . . . . An . . . ambulatory

surgical center . . . shall be reimbursed

either the agreed - upon contract price or the

maximum reimbursement allowance in the

appropriate schedule.

2 3 . Florida Administrative Code Rule 69L - 7.100

incorporates , by reference, the CRM ABS. The CRM ABS states in

relevant part:

Determining Reimbursement Amounts

Multiple Surgical Procedures

Reimbursement shall be made for all

medically necessary surgical procedures when

more than one (1) is performed at a single

operative session. Each procedure performed

shall be identified by use of the

appropriate five - digit CPT® code and list ed

separately.

The primary, or most clinically

significant procedure, shall be

reported first without appending

modifier 51.

Each additional surgical procedure code

shall be listed separately and reported

by appending modifier 51.

Multiple Surgical Proc edure Reimbursement

Amount

T o find the reimbursable amount on any

additional surgical procedure(s), identify

the following four (4) values:

1. The reimbursable amount of the billed

primary procedure code pursuant to the

policy in this Manual, and

2. 5 0% of the billed charge for the

additional surgical procedure code,

3. The MRA [Maximum Reimbursement

Allowances] of the billed additional

surgical procedure code from the Fee

Schedule in Section V, if any, and

4. The contracted reimbursement amount, i f

applicable.

If there is a contracted reimbursement

amount, reimburse the contracted amount.

Otherwise reimbursement is the lesser value

of either item 2 or item 3, not to exceed

the value identified in item 1.

2 4 . FFVA did not establish by a preponde rance of the

evidence that it properly reimbursed Summerlin for the three

procedures.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Financial

Services, Division of Workers ' Compensat ion, Office of Medical

Services, enter a final order affirming the Reimbursement

Dispute Determination issued April 24, 2012, wherein the

Department directed FFVA Mutual Insurance Company to pay a total

of $13,155.60 for the reimbursement claim filed by Su mmerlin.

DONE AND ENTERED this 16th day of November , 2012 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 2012.

ENDNOTE S

1/ Summerlin should have been a party to th is action, but did not

intervene in the case. Based on the outcome, it does not matter

that Summerlin did not get notice of or appear at the hearing.

2 / Joint Exhibits A and B contained confidential , private medical

information regarding the Patient; th at information was redacted.

3 / Although the pleading purported to be from Respondent, the

certificate of service is executed by Petitioner ' s counsel ;

hence , in this instance, it was Petitioner who provided the

notice, not Respondent.

4 / Unless otherwi se indicated, all references to Florida Statutes

are to the 201 2 version .

5 / The knee is comprised of three compartments: medial (the

inside of the knee); lateral (the outside of the knee); and

patellofemoral (the area directly behind the kneecap or pat ella).

6 / The EOBR contained a second " EOBR CODE DESRIPTION , "

number " 91, " and a " CARRIER EXPLANATION REASON CODE " that

contained the numbers 183, 851 , and 899. None of these codes

were at issue, and , although the last three were briefly

discussed at he aring, none were reviewed as pertinent to the

issue at hand.

COPIES FURNISHED:

Julie Lewis Hauf, Esquire

Law Office of Julie Lewis Hauf, P.L.

PMB 315

15880 Summerlin Road , No. 300

Fort Myers, Florida 33908

Mari H. McCully, Esquire

Department of Financ ial Services

Division of Workers ' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

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.