Allegheny General Hospital v. Bureau of Workers' Compensation Fee Review Hearing Office (SWIF)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny General Hospital, :
Petitioner :
:
v. : No. 1945 C.D. 2015
: Submitted: April 8, 2016
Bureau of Workers' Compensation :
Fee Review Hearing Office :
(State Workers' Insurance Fund), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE SIMPSON FILED: July 6, 2016
This case deals with the cost containment provisions for care of
injured workers, as applied in the exceptional instance of trauma care, when
urgency limits a provider’s ability to contain costs. There is a specific statutory
provision which deals with this issue, Section 306(f.1)(10) of the Pennsylvania
Workers’ Compensation Act (Act).1 The question here is to what extent an outside
database can be used to reprice (reduce) reimbursement for trauma care.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(10). This subsection provides:
If acute care is provided in an acute care facility to a patient
with an immediately life threatening or urgent injury by a Level I
or Level II trauma center accredited by the Pennsylvania Trauma
Systems Foundation under the act of July 3 1985 (P.L. 164, No.
35), known as the ‘Emergency Medical Services Act,’ or to a burn
injury patient by a burn facility which meets all the service
standards of the American Burn Association, or if basic or advance
life support services, as defined and licensed under the ‘Emergency
(Footnote continued on next page…)
In particular, Allegheny General Hospital (Provider) petitions for
review of an order of Medical Fee Hearing Officer Colleen Pickens (Hearing
Officer) that determined the State Workers’ Insurance Fund (Insurer) appropriately
reimbursed Provider at a repriced level for trauma care rendered to William Galena
(Claimant) from October 8 through October 16, 2014. Provider asserts Hearing
Officer erred in overruling a relevance objection to testimony from Insurer’s
repricing manager, Linda A. Lengle (Repricing Manager) regarding use of a
database to determine the “usual and customary charge” for trauma care.
Based on our recent decision in Geisinger Health System and
Geisinger Clinic v. Bureau of Workers’ Compensation Fee Review Hearing Office,
___ A.3d ___ (Pa. Cmwlth., No. 1627 C.D. 2015, filed April 21, 2016), 2016 WL
1592957, we conclude the testimony of Repricing Manager did not provide
substantial evidence to support the use of a database or overcome the relevance
objection. Accordingly, we reverse and remand for further proceedings.
I. Background
Hearing Officer found the following facts. On October 8, 2014,
Claimant, a plumber, sustained a serious work injury when a trench he was in gave
way. See Hearing Officer’s Op., 9/16/15, Finding of Fact (F.F.) No. 9a. Claimant
(continued…)
Medical Services Act,’ are provided, the amount of payment shall
be the usual and customary charge.
77 P.S. §531(10) (emphasis added).
2
was crushed under 200 to 300 pounds of dirt. Id. Fortunately, Claimant’s head
escaped injury. Id. An air ambulance transported Claimant to Provider’s trauma
bay. Id.
Upon arrival at Provider’s trauma center, Claimant complained of
bilateral chest wall pain and bilateral hip pain. F.F. No. 9b. Based on imaging
studies, Provider determined Claimant suffered a right clavicle fracture, a right
scapula body fracture, a right hemothorax, bilateral rib fractures, bilateral pelvic
fractures, and extra peritoneal hemorrhage. Id. Provider then admitted Claimant to
its trauma ICU. Id.
The next day, Claimant underwent the following procedures:
percutaneous fixation of the posterior pelvic ring fracture dislocation with
accompanying left-sided zone two sacral fracture, closed treatment of the pelvic
ring fracture without manipulation, and application of an anterior pelvic external
fixator. F.F. No. 9c. Five days later, Claimant underwent open treatment of the
right clavicular fracture with internal fixation and closed treatment of the right
scapular facture. F.F. No. 9d. On October 16, 2014, Provider discharged Claimant
to a skilled nursing facility. F.F. No. 9e.
Thereafter, Provider submitted a UB-04 claim form to Insurer
showing itemized billing charges of $120,948 for treatment rendered to Claimant
during the period of October 8-16, 2014. F.F. No. 2. Provider sought payment in
full for services rendered in an accredited trauma center. Id.
3
On October 28, 2014, Insurer issued an explanation of benefits
(EOB). F.F. No. 3. Insurer’s EOB acknowledged Provider’s inpatient services
were provided by a Level I trauma center to a patient with an immediately life
threatening or urgent injury. Id. As such, Insurer utilized the “usual, customary
and reasonable rates for this geographic area” as the reimbursement methodology.
Id. Insurer’s EOB further indicated the inpatient allowance is based on a case rate
established for a specific diagnosis related group (DRG). Id. The DRG rate is
based on usual, customary and reasonable rates for the geographic area. Id.
Ultimately, Insurer repriced Provider’s bill and paid $88,106.32. Id.
In response to the EOB, Provider filed an application for fee review
pursuant to Section 306(f.1) of the Act. F.F. No. 4. Provider requested the
application for both the amount and the timeliness of the payment. F.F. No. 4.
In January 2015, the Medical Fee Review Section circulated an
administrative determination which concluded Insurer owed Provider an additional
payment in the amount of $34,861.68 for treatment rendered to Claimant during
the period of October 8-16, 2014. F.F. No. 5. The Fee Review Section reasoned
the documentation submitted by Provider met the guidelines in Section 127.128 of
the Workers’ Compensation Medical Cost Containment (MCC) Regulations and
determined “Provider is entitled to be reimbursed at 100% of the billed charges.”
Id. The Fee Review Section also concluded Insurer submitted payment to Provider
in a timely manner. Id.
4
Insurer filed a timely request for a hearing to contest the fee review
determination. F.F. No. 6. At the hearing, Insurer submitted Repricing Manager’s
deposition. F.F. No. 7. Employed by Hoover Rehabilitation Services since 1993
as a medical bill review manager, Repricing Manager testified as to her specific
familiarity with the Act and the MCC Regulations. Dep. of Linda A. Lengle,
3/17/15 (Lengle Dep.) at 9; Reproduced Record (R.R.) at 9a.
Repricing Manager conceded that the Bureau of Workers’
Compensation’s (Bureau) Statement of Purpose of Adoption of Usual and
Customary Charge Reference (Statement of Purpose) relates to Section 127.103 of
the MCC Regulations, 34 Pa. Code §127.103 (relating to outpatient providers
subject to the Medicare fee schedule). F.F. No. 10c. Repricing Manager further
conceded the Statement of Purpose does not relate to either Section 127.128 of the
MCC Regulations, 34 Pa. Code §127.128 (relating to trauma centers and burn
facilities—exemption from fee caps) or payment for treatment that meets the
trauma guidelines. Id. In particular, Hearing Officer found (with emphasis added):
[Repricing Manager] acknowledged that the [Bureau’s]
Medical Fee Review Section, the same agency that issued
the Statement of Purpose, ordered that payment be made
to Provider at 100% of Provider’s usual and customary
charge, and therefore does not agree with her
interpretation of the Statement of Purpose. I find that her
acknowledgment of these issues is correct and that her
testimony related to these matters is credible. However,
I find that the dispute in the instant matter is not over the
Section of the [MCC] Regulations to which this
Statement of Purpose applies, but rather whether
Provider is due reimbursement for acute care rendered to
Claimant at 100% of Provider’s actual charge or at 100%
of the usual and customary charge.
5
F.F. No. 10c. In explaining her position, Hearing Officer continued:
d. Section 127.3 of the [MCC] Regulations sets forth the
definition of ‘actual charge’ and the definition of ‘usual
customary charge.’ The ‘actual charge’ is defined as ‘the
provider’s usual and customary charge for a specific
treatment, accommodation, product or service.’ In
contrast, the ‘usual and customary charge’ is defined as
the ‘the charge most often made by providers of similar
training, experience and licensure for a specific
treatment, accommodation, product or service in the
geographic area where the treatment, accommodation,
product or service is provided.’ I therefore find as fact
that payment to Provider shall be based upon 100% of
the usual and customary charge rather than 100% of
Provider’s actual charge.
e. Because Provider is due reimbursement at 100% of the
usual and customary charge, it stands to reason that a
reliable source is needed to determine what the usual and
customary charge shall be. Through the [Statement of
Purpose], the [Bureau’s] Medical Fee Review Section
has established that ‘the department will utilize the 85th
percentile of the MDR [medical data retrieval] database
published by FAIR Health to determine the ‘usual and
customary charge’ as defined in 34 Pa. Code §127.3.
Based upon the Medical Fee Review Section’s utilization
of the 85th percentile of the MDR database published by
FAIR Health, I find as a fact that this database is a
reliable and accurate source that shall be used to
determine reimbursement rates at the usual and
customary charge.
f. Based upon [Repricing Manager’s] credible testimony
that the MDR database published by FAIR Health was
indeed used in the instant matter to determine the amount
of payment due to Provider, I specifically find as a fact
that Insurer properly reimbursed Provider in the amount
of $88,106.32 for the treatment rendered to Claimant
from October 8, 2014 through October 16, 2014.
6
F.F. Nos. 10d, e, f.
In her Conclusions of Law, Hearing Officer noted Provider’s position
that the Act and MCC regulations “warrant payment of 100% of the provider’s
usual and customary charge, and not payment of a usual and customary charge
‘determined through the application of any formula that takes into account what
other providers may charge.’” Conclusion of Law (C.L.) No. 7. In dismissing
Provider’s argument, and allowing use of a database to reprice costs for trauma
care, Hearing Officer reasoned (with emphasis added):
Although Provider is correct that Section 127.128(c) of
the [MCC] Regulations references ‘the provider’s usual
and customary charge”, Section 127.128 (a) and (b) of
the [MCC] Regulations and Section 306(f.1)(10) of the
Act clearly indicate that services rendered in a trauma
center shall be paid at the usual and customary rate, not
at the provider’s usual and customary charge or at the
provider’s actual charge. The fact that the ‘usual and
customary charge’ is cited three times as opposed to the
single citation of ‘the provider’s usual and customary
charge’, as well as the fact that the [MCC] Regulations
include a specific definition for ‘actual charge’ and a
separate definition for ‘usual and customary charge,’
leads the undersigned to conclude that the aim of both the
[MCC] Regulations and the Act was to ensure that
providers would properly be reimbursed at 100% of the
usual and customary charge for the specific treatment
rendered in the geographic location where that specific
treatment was provided. Indeed, the purpose of the
[MCC Regulations] is to prevent providers from charging
excessive fees for treatment and services rendered to
workers’ compensation claimants. Furthermore,
[Repricing Manager] testified on behalf of Insurer that
the … Medical Fee Review Section specified in its
[Statement of Purpose] that the Department would utilize
the 85th percentile of the MDR database to determine the
usual and customary charge as defined in Section 127.3
of the [MCC] Regulations. It is therefore consistent and
7
logical to reason that payment for treatment and services
rendered in a trauma center would be paid at the
theoretically lesser amount of 100% of the usual and
customary charges as opposed to 100% of the actual
charges. The precedents of [Roman Catholic Diocese of
Allentown v. Bureau of Workers' Compensation, Fee
Review Hearing Office (Lehigh Valley Health Network),
33 A.3d 691 (Pa. Cmwlth. 2011)]; and [Laundry Owners
Mutual Liability Insurance Association v. Bureau of
Workers' Compensation (UPMC), 853 A.2d 1130 (Pa.
Cmwlth. 2004)] support this conclusion by indicating
that ‘payment for such services [services rendered in a
trauma center] must be at the usual and customary rate.’
C.L. No. 8.
Accordingly, Hearing Officer granted Insurer’s fee review request and
held Insurer properly reimbursed Provider at a reduced rate for the acute care
treatment and services it rendered Claimant. Provider petitions for review.2
II. Discussion
A. Argument
1. Bureau’s Statement of Purpose
Provider first contends Hearing Officer erred in overruling its
objection to Repricing Manager’s testimony regarding the Bureau’s Statement of
Purpose because such testimony was irrelevant. Provider asserts Insurer’s sole
purpose in presenting Repricing Manager’s testimony was to establish Insurer
2
Our review is limited to determining whether Hearing Officer’s findings are supported
by substantial evidence and whether Hearing Officer erred as a matter of law or violated
Employer’s constitutional rights. Roman Catholic Diocese of Allentown v. Bureau of Workers'
Comp., Fee Review Hearing Office (Lehigh Valley Health Network), 33 A.3d 691 (Pa. Cmwlth.
2011).
8
properly repriced and paid Provider’s charges. However, Repricing Manager
justified Insurer’s repricing by reference to the Bureau’s Statement of Purpose,
which Insurer never submitted into evidence.
The Statement of Purpose, Provider maintains, addresses a
determination of the proper payment amount under Section 306(f.1)(3)(i) of the
Act, 77 P.S. §531(3)(i), and 34 Pa. Code §127.102, which relate to the usual and
customary charge for the medical fee caps. Section 306(f.1)(3)(i) provides in
pertinent part:
For purposes of this clause, a provider shall not
require, request or accept payment for the treatment,
accommodations, products or services in excess of one
hundred thirteen percentum of the prevailing charge at
the seventy-fifth percentile … or one hundred thirteen
percentum of any other Medicare reimbursement
mechanism, as determined by the Medicare carrier or
intermediary, whichever pertains to the specialty service
involved, determined to be applicable in this
Commonwealth under the Medicare program for
comparable services rendered. If the commissioner
determines that an allowance for a particular provider
group or service under the Medicare program is not
reasonable, it may adopt, by regulation, a new allowance.
If the prevailing charge, fee schedule, recommended fee,
inflation index charge, DRG payment or any other
reimbursement has not been calculated under the
Medicare program for a particular treatment,
accommodation, product or service, the amount of the
payment may not exceed eighty percentum of the charge
most often made by providers of similar training,
experience and licensure for a specific treatment,
accommodation, product or service in the geographic
area where the treatment, accommodation, product or
service is provided.
9
77 P.S. §531(3)(i) (emphasis added).
Similarly, Section 127.102 of the MCC Regulations provides (with
emphasis added):
If a Medicare payment mechanism does not exist for a
particular treatment, accommodation, product or services,
the amount of payment made to a health care provider
shall be either 80% of the usual and customary charge for
that treatment, accommodation, product or service in the
geographic area where rendered, or the actual charge,
whichever is lower.
34 Pa. Code §127.102.
Provider asserts the actual payment amount under this formula is
113% of the Medicare rate in effect in 1995, adjusted yearly by the percentage to
which the average weekly wage increased. As such, Provider argues, Section
127.102 of the MCC Regulations imposes a fee cap. The Statement of Purpose
explains how to calculate a payment amount under Section 127.102.
To the contrary, the trauma exception in Section 306(f.1)(10) of the
Act, and its regulatory provision, 34 Pa. Code §127.128,3 make no mention of
3
Section 127.128 of the MCC regulations, 34 Pa. Code §127.128, provides, in pertinent
part (with emphasis added):
(a) Acute care provided in a trauma center or a burn facility is
exempt from the medical fee caps, and shall be paid based on
100% of usual and customary charges if the following apply:
(1) The patient has an immediately life-threatening injury or
urgent injury.
(Footnote continued on next page…)
10
determining the usual and customary charge by reference to what other providers
charge. Rather, Section 306(f.1)(10) of the Act provides (with emphasis added):
If acute care is provided in an acute care facility to
a patient with an immediately life threatening or urgent
injury by a Level I or Level II trauma center accredited
(continued…)
(2) Services are provided in an acute care facility that is one of
the following:
(i) A level I or level II trauma center, accredited by the
Pennsylvania Trauma Systems Foundation ….
….
(b) Basic or advanced life support services, as defined and licensed
under the Emergency Medical Services Act, provided in the
transport of patients to trauma centers or burn facilities under
subsection (a) are also exempt from the medical fee caps, and shall
be paid based on 100% of usual and customary charges.
(c) If the patient is initially transported to the trauma center or burn
facility in accordance with the American College of Surgeons
(ACS) triage guidelines, payment for transportation to the trauma
center or burn facility, and payments for the full course of acute
care services by all trauma center or burn facility personnel, and all
individuals authorized to provide patient care in the trauma center
or burn facility, shall be at the provider’s usual and customary
charge for the treatment and services rendered.
….
(g) The medical fee cap exemptions may not continue to apply for
payments for acute care treatment and services for life-threatening
or urgent injuries following a transfer from a trauma center or burn
facility to any other provider.
34 Pa. Code §§127.128 (a)-(e), (g) (citation omitted).
11
by the Pennsylvania Trauma Systems Foundation under
the act of July 3 1985 (P.L. 164, No. 35), known as the
‘Emergency Medical Services Act,’ or to a burn injury
patient by a burn facility which meets all the service
standards of the American Burn Association, or if basic
or advance life support services, as defined and licensed
under the ‘Emergency Medical Services Act,’ are
provided, the amount of payment shall be the usual and
customary charge.
77 P.S. §531(10).
Citing the Latin legal maxim and well-recognized statutory
construction principle expressio unius est exclusio alterius (the express mention of
one thing in a statute implies the exclusion of other things), Provider argues if the
General Assembly intended that payment for services under the trauma care
exception be based on 80% of the charges made by similar trauma care providers
in the same geographic area, it would have included such language in Section
306(f.1)(10) of the Act and 34 Pa. Code §127.128. However, because the
legislature excluded any reference to other trauma care providers or their charges,
the Bureau properly interpreted these provisions as exempting trauma care
providers from the Act’s fee cap provisions.
Consequently, Provider argues, the Statement of Purpose relied on by
Repricing Manager is wholly irrelevant to a determination of the proper payment
amount under Section 127.128 of the MCC Regulations, relating to the exemption
from fee caps for trauma centers and burn facilities. As such, Provider asserts
Hearing Officer erred in concluding otherwise.
12
Summarizing, Provider argues evidence is relevant if “(a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” Pa. R.E.
401. Here, the amount Insurer must pay Provider for the acute trauma care it
provided to Claimant was the fact Hearing Officer needed to determine. Because
the Statement of Purpose, and Repricing Manager’s testimony regarding it, have no
application to payment for charges exempt from the fee caps, Hearing Officer erred
in admitting such evidence. In short, Repricing Manager’s testimony regarding the
proper construction of a regulation imposing a fee cap was irrelevant to the proper
construction of a different regulation exempting acute trauma care from the fee cap
provisions. Therefore, Provider urges, because this evidence constituted the
entirety of Insurer’s evidence, Hearing Officer’s decision based on that evidence
must be reversed.
2. Reimbursement
Consequently, Provider contends Hearing Officer erred in determining
Insurer met its burden of proving it properly reimbursed Provider for its trauma
care services rendered. As discussed above, Provider asserts Hearing Officer
misconstrued 34 Pa. Code §127.128 as essentially permitting a payment limitation
or fee cap. To that end, Hearing Officer imposed a fee cap determined by
Repricing Manager’s use of the 85th percentile of the market data retrieval database
(MDR) published by Fair Health. F.F. No. 10e, f; C.L. No. 8; Lengle Dep. at 13;
R.R. at 13a.
13
In making her payment determination, Provider argues Hearing
Officer completely disregarded the Bureau’s interpretation of the trauma care
exception and regulations – that a trauma care provider is entitled to be paid its
usual and customary charge. In so doing, Provider asserts Hearing Officer
substituted her interpretation of the regulations for the construction the Bureau
applied for nearly two decades in adjudicating trauma care fee review cases.
Provider further asserts this Court acknowledged the Bureau’s
position that trauma care charges were exempt from the usual medical fee caps in
Roman Catholic Diocese and Laundry Owners. In both those cases, this Court
affirmed the hearing officer’s determinations that the provider’s trauma care
charges were exempt from the fee caps and the providers were entitled to 100% of
their actual charges.
Provider argues the same deference to the Bureau’s interpretation of
the MCC Regulations should be afforded here with regard to the application of 34
Pa. Code §127.128. Provider asserts the Bureau’s construction is consistent with
the clear purpose of the Act to exempt acute trauma care from the fee caps in the
Act’s MCC provisions.
Further, Repricing Manager acknowledged that the Bureau’s Medical
Fee Review Section construes 34 Pa. Code §127.128 to require payment of 100%
of the trauma care provider’s billed charges. See Lengle Dep. at 16-17; R.R. at
16a-17a. Provider also maintains the Fee Review Section’s position is consistent
with Laundry Owners, where this Court noted the General Assembly intended the
14
acute trauma or burn care provision in Section 306(f.1)(10) of the Act, 77 P.S.
§531(10), to be a specific exception to the Act’s general fee cap provisions.
Therefore, Provider asserts, Hearing Officer erred in determining the Act’s medical
fee cap calculations applied in this case.
B. Analysis
1. Geisinger
To begin our analysis, we review our recent decisions in Geisinger
and two companion cases,4 where we addressed issues and arguments practically
identical to the ones presented here. In Geisinger, the provider submitted a claim
to Insurer seeking full payment of its billed charges for its physicians’ treatment of
the claimant rendered in a Level I trauma center. Insurer responded with an EOB
that recognized the treatment and services as acute trauma care, but nevertheless
repriced the provider’s charges based on the usual and customary rates for that
treatment in the provider’s geographic area. The provider filed an application for
fee review, and the Medical Fee Review Section determined Insurer owed the
provider its actual charges for its acute trauma care treatment and services.
Insurer filed a timely request for a fee review hearing. At the hearing,
Insurer provided testimony from the same Repricing Manager which was nearly
identical to that presented in this case. Repricing Manager in Geisinger testified
4
See Geisinger Health System and Geisinger Clinic v. Bureau of Workers’
Compensation Fee Review Hearing Office, (Pa. Cmwlth., No. 1625 C.D. 2015, filed April 21,
2016), 2016 WL 1593754 (unreported) and Geisinger Health System and Geisinger Clinic v.
Bureau of Workers Compensation Fee Review Hearing Office, (Pa. Cmwlth., No. 1626 C.D.
2015, filed April 21, 2016), 2016 WL 1593757 (unreported).
15
that in accord with the Bureau’s Statement of Purpose, she used the 85th percentile
of the MDR database to determine the usual and customary charge.
Hearing Officer agreed with Repricing Manager and determined
Insurer’s payment should be based on 100% of the usual and customary charge as
defined in 34 Pa. Code 127.3 rather than 100% of Provider’s actual charge. See
Geisinger, ___ A.3d at ___, Maj. Slip. Op. at 5. Hearing Officer then determined
Insurer properly reimbursed the provider at “100% of the usual and customary
charge for services in that geographic reason for the services rendered to [the
claimant].” Id.
In affirming Hearing Officer’s order, the Geisinger Majority observed
34 Pa. Code §127.128(c) authorizes a trauma center to be reimbursed at the
“provider’s usual and customary charge for the treatment and services rendered”
where the patient presents with immediately life threatening or urgent injuries.
This language is identical to definition of “actual charge” in 34 Pa. Code §127.3.
See Geisinger, ___ A.3d at ___, Maj. Slip. Op., at 10.
Nonetheless, the Geisinger Majority recognized Section 109 of the
Act, a general definitions provision, defined the term “[u]sual and customary
charge” as:
the charge most often made by providers of similar
training, experience and licensure for a specific
treatment, accommodation, product or service in the
geographic area where the treatment, accommodation,
product or service is provided.
16
77 P.S. §29. This definition is identical to that in 34 Pa. Code §127.3, the
implementing regulation. The Geisinger Majority then reasoned (with emphasis
added):
The question then becomes whether, just because
the General Assembly and those implementing the
regulations chose to repeat the definition within other
provisions but not in Section 306(f.1)(10), providers were
to receive actual charges, notwithstanding how that term
is defined in the Act. In determining whether a defined
term has a meaning that differs from the definition given
to it, we must take into consideration the ‘context’ and
language that ‘surrounds’ the term. Pennsylvania
Associated Builders and Contractors, Inc. v. Department
of General Services, 932 A.2d 1271, 1279 (Pa. 2007). In
this case, there is nothing in the context of the language
surrounding the term to indicate that the statutory
definition of ‘usual and customary charges’ means that a
provider should receive its actual charges. If that were
the case, the General Assembly would have drafted the
pertinent part of Section 306(f.1)(10) to read ‘a
provider’s customary and usual charge’ rather than ‘the
usual and customary charge.’
We recognize that despite the language of the fee
cap provisions, Section 127.128(c) of the MCC
Regulations interprets Section 306(f.1)(10) of the Act as
containing just that language. By doing so, it equates
‘usual and customary charges’ with its definition of
‘actual charge’ which states: ‘The provider’s usual
charge and customary charge for a specific treatment,
accommodation, product or service.’ 34 Pa. Code §127.3
(emphasis added). While 34 Pa. Code §127.128(c)
would indicate that reimbursement would be at the usual
rate if contained in the statute, a regulation that is at
variance with a statute is ineffective to change the
statute’s meaning. That is so because ‘the power of an
administrative agency to prescribe rules and regulations
under a statute is not the power to make law, but only the
power to adopt regulations to carry into effect the will of
the Legislature as expressed by the statute.’ Volunteer
17
Firemen’s Relief Association of the City of Reading v.
Minehart, 227 A.2d 632, 635-36 (Pa. 1967). ‘When an
agency adopts regulations at variance with the statute, the
regulations, and not the statute, fall by the wayside.’
Union Electric Corporation v. Board of Property
Assessment, Appeals and Review of Allegheny County,
721 A.2d 823 (Pa. Cmwlth. 1998), rev’d on other
grounds, [746 A.2d 581 (Pa. 2000)] ….
****
The rules of statutory construction apply to
administrative regulations. Bayada Nurses, Inc. v.
Department of Labor and Industry, 958 A.2d 1050 (Pa.
Cmwlth. 2008), aff’d, 8 A.3d 866 (Pa. 2010). A defined
term is to be applied unless a different meaning can be
ascribed to the word or phrase because of its context.
Because there is nothing in the language of Section
306(f.1)(10) of the Act that indicates that ‘usual and
customary charge’ is other than how it is defined in
Section 109 of the Act as a ‘charge most often made by
providers of similar training, experience and licensure for
a specific treatment, accommodation, product or service
in the geographic area where the treatment,
accommodation, product or service is provided,’ we
affirm the Hearing Officer’s order.
Geisinger, ___ A.3d at ___, Maj. Slip. Op., at 11-14 (footnotes omitted).
Despite the general conclusion that a comparison of other providers’
charges could be made to reprice the cost of trauma care, the Geisinger Majority
questioned the use of a database for that purpose. Id. at ___, n.4, Maj. Slip. Op. at
12, n.4. The Geisinger Majority held that a comparison should be made between
the trauma care provider’s charges and the usual and customary charges of other
trauma centers in the same geographic region. Id. at ___, Maj. Slip. Op. at 14.
The Concurring Opinion agreed with this position. Id. at ___, Conc. Slip. Op. at 2
18
(“Thus, where trauma care is involved, the provider’s charges are not compared to
those of every ‘Emergicare,’ “Redicare,’ or ‘Urgent Care’ facility; rather, the
trauma care provider’s charges are compared only to other ‘Level I or Level II
trauma center[s] accredited by the Pennsylvania Trauma Systems Foundation
under the [A]ct of July 3, 1985, P.L. 164 … known as the ‘Emergency Medical
Services Act.’ Section 306(f.1)(10) of the Act, Section 531(10).”).
The Concurring Opinion in Geisinger described the database problem
in more detail: “Specifically, there is no testimony whether the unidentified ‘data’
used by the repricing manager were limited to charges by accredited trauma care
facilities in the same geographic region. In fact, there is no testimony that charges
by accredited trauma care facilities are even included in the database.” Id. at ___,
Conc. Slip Op. at 3.
2. Present Case
In the present case, the circumstances are nearly identical to those in
Geisinger. However, in Geisinger the provider did not sufficiently challenge the
use of FAIR Health’s MDR database. Geisinger, ___ A.3d at ___, n.4, Maj. Slip.
Op., at 12, n.4. As such, the Court noted, “[b]ecause the use of this database was
not challenged, we will accept [its] use in this case but do not in any way address
its general applicability or validity.” Id. (emphasis added). Likewise, the provider
in Geisinger did not challenge Repricing Manager’s reliance on the Bureau’s
Statement of Purpose, a document which does not appear to apply to repricing
trauma care. See Geisinger, ___ A.3d at ___, Conc. Slip. Op. at 3-4 (“Worse,
based on the ‘Bureau’s statement’ referenced in the repricing manager’s testimony
19
… there is every indication that the database was never intended to be used for
trauma care repricing.”) (footnote omitted).
In the present case, however, Provider raises specific assignments of
error as to the Hearing Officer’s acceptance of Repricing Manager’s testimony and
her reliance on the Bureau’s Statement of Purpose, which Provider contends is
only applicable to determining the proper payment amount under the fee cap
provisions of the MCC Regulations. Thus, during Repricing Manager’s
deposition, Provider raised the following objection to her reference to the
Statement of Purpose:
I’m going to offer an objection here. Let me just put it
on the record and then you can continue. That statement
of purpose has absolutely no relevance to 127.128. It
specifically refers only to the calculation under the fee
caps for charges for which there is no fee schedule in the
Workers’ Compensation Fee Schedule. It made a
specific reference for that provision that says that a
127.103, that if a medical allowance does not exist for a
reported HCPCS [Healthcare Common Procedure Coding
System] code or successor codes, provider shall be paid
either 80 percent of the usual and customary charge or
the actual charge. The statement of purpose has
absolutely nothing to do with trauma. Its under the fee
cap provisions of the Act regulations. And as your
witness has testified, trauma charges are exempt from
any Medicare cost-containment provisions.
In fact, the regulation itself, it says, under C, that
the charge shall also be at the provider’s usual and
customary charge for treatment and services rendered.
That’s how the Bureau interprets it. That’s how they
apply it. They applied it in this case. That’s how the
Commonwealth Court has applied it.
20
So I’m going to object to any testimony regarding
this statement of purpose which has absolutely nothing to
do with trauma matters. But you can go ahead and ask,
and the legal issue will be resolved, but I want to put that
on the record.
Lengle Dep. at 12-13; R.R. at 12a-13a (emphasis added). Ultimately, Hearing
Officer overruled Provider’s objection. See Hearing Officer’s Op. at 4, n.1.
In her decision here, Hearing Officer concluded: “In the instant
matter, Insurer has met its burden of proving that it properly utilized the definition
of ‘usual and customary charge’ and that Provider was due reimbursement at the
85th percentile of the MDR database published by FAIR Health. Insurer has
proven by a preponderance of the evidence that Provider is not due additional
payment for the services rendered to Claimant from October 8, 2014 through
October 16, 2014.” C.L. No. 3.
Based on our review of Repricing Manager’s testimony as a whole,
and on our recent decision in Geisinger, we hold Hearing Officer erred in reaching
this determination. First and foremost, Repricing Manager acknowledged the
database she used had nothing to do with Provider’s usual and customary charges
for trauma care. Lengle Dep. at 14; R.R. at 14a.
Second, in Geisinger we determined that a comparison can be made
between an accredited trauma care provider’s charges and charges by other
accredited trauma care centers in the same geographic region. However, there is
no evidence here that the MDR database is limited to such data, or even contains
such data.
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In conclusion, we agree with the Hearing Officer that Provider need
not be reimbursed at 100% of Provider’s actual charges for trauma care. Instead,
pursuant to Geisinger, Provider’s trauma care charges can be compared to charges
by other accredited trauma care centers in the same geographic region to arrive at
the “usual and customary charge” for trauma care. Reimbursement is to be made
at 100% of such charge. However, we respectfully disagree with the Hearing
Officer that the Bureau’s Statement of Purpose has any relevance to trauma care
charges. Consequently, the current record lacks substantial evidence to support the
use of the MDR database published by FAIR Health in this trauma care case.
Thus, Findings of Fact 10e and 10f, quoted above, must be stricken.
For the foregoing reasons, we reverse the decision of the Hearing
Officer, and we remand for a determination of the “usual and customary charge”
by accredited trauma care providers in the geographic area of Provider here.
Provider shall be reimbursed at 100% of that charge. We leave to the thoughtful
discretion of the Hearing Officer whether or not to supplement the record on
remand.
ROBERT SIMPSON, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny General Hospital, :
Petitioner :
:
v. : No. 1945 C.D. 2015
:
Bureau of Workers' Compensation :
Fee Review Hearing Office :
(State Workers' Insurance Fund), :
Respondent :
ORDER
AND NOW, this 6th day of July, 2016, the order of the Bureau of
Workers' Compensation Fee Review Hearing Office is REVERSED and this case
is REMANDED for further proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
ROBERT SIMPSON, Judge