S. Landes, PH.D. v. Bureau of WC Fee Review Hearing Office (Vigilant Ins. Co.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherri Landes, Ph.D., :
Petitioner :
:
v. : No. 1519 C.D. 2018
: ARGUED: November 14, 2019
Bureau of Workers' Compensation :
Fee Review Hearing Office (Vigilant :
Insurance Company), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: January 13, 2020
Sherri Landes (Provider) petitions this Court for review of the November 6,
2018 decision of the Bureau of Workers’ Compensation Fee Review Hearing Office
(Bureau). The Bureau determined that Vigilant Insurance Company (Insurer)
appropriately reimbursed Provider for psychotherapy services rendered to a claimant
receiving benefits pursuant to the Workers’ Compensation Act (Act).1 Provider
argues on appeal that the Bureau’s hearing officer capriciously disregarded evidence
and, as a result, her finding that Insurer’s reimbursement rate was correct is not
supported by substantial evidence.
I. Procedural and Factual Background
Provider is a licensed psychologist. Notes of Testimony (N.T.), 6/20/17, at 5.
As part of her practice, Provider treats patients suffering from a work injury. Id. at
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4 – 2501-2710.
6. Individual psychotherapy sessions with these patients are generally 45 minutes
in length and Provider bills $150 for her services. Id. at 7, 9. When submitting a
bill to an insurer, Provider identifies the services rendered using a Current
Procedural Terminology (CPT) code.2 Id. at 11. Provider bills for psychotherapy
services under CPT code 90834 (2013 Code), which involves “[p]sychotherapy, 45
minutes with patient and/or family member.”3 Id., Ex. No. 2 at 3. Prior to 2013,
Provider billed psychotherapy services under CPT code 90806 (Original Code) for
“[i]ndividual psychotherapy, insight oriented, behavior modifying and/or
supportive, in an office or out-patient facility, approximately 45-50 minutes face-to-
face with the patient.” N.T., 6/20/17, at 11, Ex. No. 2 at 2.
Provider’s reimbursement rate for her services is calculated using the
Medicare fee schedule (Fee Schedule) as a basis, per Section 127.103 of the
Department of Labor and Industry’s (Department) Workers’ Compensation Medical
Cost Containment Regulations (Regulations).4 34 Pa. Code § 127.103. The effective
date of the CPT code under which a particular service is billed further influences the
applicable reimbursement rate. Section 127.153 of the Regulations provides:
2
CPT codes are developed, maintained, and copyrighted by the American Medical
Association (AMA) to help ensure uniformity among medical professionals and the health
insurance industry. Liberty Mut. Ins. Co. v. Bureau of Workers’ Comp., Fee Review Hearing Office
(Kepko, D.O., Lindenbaum, D.O. c/o East Coast TMR), 37 A.3d 1264, 1267 n.6 (Pa. Cmwlth.
2012). These codes consist of a group of numbers assigned to every task and service a medical
practitioner may provide to a patient, including medical, surgical, and diagnostic services. Id.
3
CPT descriptions are derived from the CPT Manual produced by the AMA. N.T.,
6/20/17, at 21.
4
Fee Schedules are published annually by the Department in the Pennsylvania Bulletin,
effective January 1 of each year. 34 Pa. Code § 127.152(b).
2
(a) On and after January 1, 1995, outpatient providers
whose payments under the act are based on the
Medicare fee schedule under §§ 127.103--127.108
shall be paid as follows: the amount of payment
authorized shall be frozen on December 31, 1994, and
updated annually by the percentage change in the
Statewide average weekly wage.
(b) On and after January 1, 1995, adjustments and
modifications by HCFA[5] relating to a change in
description or renumbering of any HCPCS[6] code will
be incorporated into the basis for determining the
amount of payment as frozen in subsection (a) for
services rendered under the act.
(c) On and after January 1, 1995, payment rates under the
act for new HCPCS codes will be based on the rates
allowed in the Medicare fee schedule on the effective
date of the new codes. These payment rates shall be
frozen immediately, and thereafter updated annually by
the percentage change in the Statewide average weekly
wage.
34 Pa. Code § 127.153 (emphasis added).
In essence, if a CPT code has merely been renumbered, or its description
changed, a provider’s reimbursement rate is not altered but remains the amount in
effect and frozen as of December 31, 1994, adjusted annually by the percentage
5
HCFA is an acronym for the Health Care Finance Administration (HCFA), an agency
within the United States Department of Health and Human Services that administers Medicare
payments. 42 C.F.R. §§ 400.200 – 600.715. While HCFA was renamed the Centers for Medicare
and Medicaid Services (CMS), the Regulations have not been updated to reflect this change.
Federal Register, https://www.federalregister.gov/agencies/centers-for-medicare-medicaid-
services (last visited January 2, 2020).
6
HCPCS stands for the Healthcare Common Procedure Coding System, which contains
the codes and terminology used for billing Medicare and other health insurance programs.
CMS.gov, HCPCS General Information.
https://www.cms.gov/Medicare/Coding/MedHCPCSGenInfo/index.html (last visited January 2,
2020). Level I of the HCPCS utilizes the AMA CPT codes. Id.
3
change in the statewide average weekly wage. However, if a new CPT code is
established, the reimbursement rate for the related service is determined as of the
new code’s effective date. This rate is thereafter adjusted annually by the percentage
change in the statewide average weekly wage.
Provider’s rate of reimbursement for psychotherapy services decreased after
implementation of the 2013 Code, although the services she provided had not
changed. N.T., 6/20/17, at 12. Her rate of reimbursement in 2012 under the Original
Code was $132. Id. at 15. In 2016, Provider received $96.05 for each psychotherapy
session billed under the 2013 Code. Id. at 13, 16.
In conjunction with treatment provided in 2017 and 2018 to a workers’
compensation claimant, Provider billed Insurer $150 per session for psychotherapy
services. Supplemental Reproduced Record (S.R.R.) at 9b, 15b. Insurer issued
explanations of benefits which reduced Provider’s charges. Id. Provider was paid
$97.68 for services rendered on December 7, 2017. Id. at 9b. For services rendered
March 15, 2018 and March 22, 2018, Provider received $100.61 for each session,
for a total reimbursement in the amount of $201.22. Id. at 15b. Provider sought
review of these payments by the Bureau’s Medical Fee Review Section, which
determined that no additional payment was due. Id. at 33b-36b, 57b-60b. Provider
sought further review by a hearing officer.
In support of her application for fee review, Provider submitted testimony
taken before Hearing Officer Thomas Kuzma in an unrelated workers’ compensation
fee review hearing during which Provider similarly contested her rate of
reimbursement under the 2013 Code. During that hearing, Provider testified
generally as to the services she provides and her billing practices. Provider asserted
that the psychotherapy services she rendered under the Original Code were the
“exact same service[s]” billed under the 2013 Code. N.T., 6/20/17, at 23. As to the
4
differences between the two codes, Provider opined that the CPT Manual’s
descriptive language for the 2013 Code had not changed much from the Original
Code and psychotherapy was described “in almost exactly the same verbiage.”7 Id.
at 11, 22. Provider believed some language was removed from the Original Code
description to avoid confusion. Id. at 31.
Provider also presented the January 3, 2018, decision of Hearing Officer
Kuzma (Kuzma Decision), who found that the 2013 Code was not a new code but
7
Provider submitted a document which set forth the CPT Manual definitions for both the
Original and 2013 Codes. The Original Code defined psychotherapy as:
the treatment of mental illness and behavioral disturbances in which
the clinician establishes a professional contact with the patient,
through definitive therapeutic communication, attempts to alleviate
the emotional disturbances, reverse or change maladaptive patterns
of behavior, and encourage personality growth and development.
The codes for reporting psychotherapy are divided into two broad
categories: interactive psychotherapy; and insight oriented, behavior
modifying and/or supportive psychotherapy.
Insight oriented, behavior modifying and/or supportive
psychotherapy refers to the development of insight or affective
understanding, the use of behavioral modification techniques, the
use of supportive interactions, the use of cognitive discussion of
reality, or any combination of the above to provide therapeutic
change.
N.T., 6/20/17, Ex. No. P-2 at 1.
Psychotherapy is defined as the following in full in the 2013 CPT Manual as:
the treatment of mental illness and behavioral disturbances in which
the physician or other qualified healthcare professional, through
definitive therapeutic communication[,] attempts to alleviate the
emotional disturbances, reverse or change maladaptive patterns of
behavior, and encourage personality growth and development.
Id. at 2.
5
represented a change in the description and numbering of the Original Code. Kuzma
Decision, Finding of Fact (F.F.) No. 14. As such, Hearing Officer Kuzma concluded
that the reimbursement rate for psychotherapy services was not altered by the 2013
Code and Provider was entitled to reimbursement in the amount of $132, adjusted
annually by the percentage change in the statewide average weekly wage. Id.,
Conclusion of Law (COL) No. 6.
Having reviewed the evidence and the Kuzma Decision, Hearing Officer
Colleen Pickens issued a decision on November 6, 2018, denying Provider’s fee
review (Pickens Decision). Pickens Decision at 13. Provider’s testimony was
deemed credible in regards to her description of the services provided, her billing
procedures, and the amount of payments Provider received between 1993 and 2013.
Pickens Decision, F.F. No. 14(b). Provider’s testimony that the language in the
Original Code and the 2013 Code are “almost exactly the same,” however, was
rejected as not credible, as there existed clear differences between the descriptions
of psychotherapy in the Original Code and the 2013 Code. Id. Hearing Officer
Pickens further rejected Provider’s opinion that she should continue to receive $132,
plus cost of living increases, for psychotherapy sessions billed under the 2013 Code.
Id.
Hearing Officer Pickens determined that substantial changes were made from
the Original Code such that the 2013 Code should be considered “an entirely new
code,” and not merely a change in the description or numbering of the Original
Code.8 Pickens Decision, COL No. 6. As the 2013 Code represented a new code,
Section 127.253(c) of the Regulations applied. F.F. No. 14(c). According to the
applicable Fee Schedules, the 2017 and 2018 reimbursement rates for the 2013 Code
8
Hearing Officer Pickens expressly found that she was not bound by the Kuzma Decision.
Pickens Decision, F.F. No. 14(d).
6
were $97.68 and $100.61, respectively. F.F. No. 14(b). Insurer paid these amounts
for Provider’s 2017-18 services and Provider offered no evidence which proved
different rates applied. Id. Insurer thus met its burden of proof9 that it appropriately
reimbursed Provider and she was not due any additional payment. F.F. No. 14(e),
COL No. 6. This appeal followed.
II. Issue on Appeal
On appeal,10 Provider argues that Hearing Officer Pickens erred in
determining that Insurer’s reimbursement rate was appropriate as she capriciously
disregarded Provider’s testimony and, consequently, Hearing Officer Pickens’
findings of fact are not based on substantial evidence.
III. Analysis
Provider argues that Hearing Officer Pickens capriciously disregarded her
uncontradicted testimony that the medical services she provided were exactly the
same, regardless of the code under which they were billed. Provider submits that
the purpose of the Regulations is to establish procedures for reimbursing providers,
not to reduce a provider’s rate of reimbursement following a “minor administrative
change[,]” when the services rendered have remained the same. Provider’s Br. at
9
During a fee review hearing, the insurer bears the burden of proving by a preponderance
of the evidence that it properly reimbursed the provider. 34 Pa.Code § 127.259(f).
10
This Court's scope of review of a decision by the Bureau's Hearing Office determines
whether the necessary findings of fact are supported by substantial evidence, whether
constitutional rights were violated, and whether the hearing officer committed an error of law. 2
Pa. C.S. § 704; Walsh v. Bureau of Workers’ Comp. Fee Review Hearing Office (Traveler's Ins.
Co.), 67 A.3d 117, 120 n.5 (Pa. Cmwlth. 2013). Substantial evidence is such relevant evidence as
a reasonable person might accept as adequate to support a conclusion. Washington v. Workers’
Comp. Appeal Bd. (Pa. State Police), 11 A.3d 48, 54 n.4 (Pa. Cmwlth. 2011). Regarding questions
of law, our scope of review is plenary and our standard of review is de novo. Sedgwick Claims
Mgmt. Serv., Inc. v. Bureau of Workers’ Comp., Fee Review Hearing Office (Piszel and Bucks Cty.
Pain Ctr.), 185 A.3d 429, 433 n.2 (Pa. Cmwlth. 2018).
7
13. Provider maintains that the 2013 Code represents a change in the description to,
and renumbering of, the Original Code. In that regard, Provider urges this Court to
accept the findings of Hearing Officer Kuzma that a new code was not established
and Provider is entitled to reimbursement in the amount of $132, adjusted annually
by the statewide average weekly wage.
Insurer contends that Hearing Officer Pickens correctly applied the
controlling regulations and Fee Schedules. In accordance with Section 127.153(b)
of the Regulations, the rate of reimbursement under a CPT code which has merely
changed or been renumbered is based on the rate in effect and frozen on December
31, 1994. The basis for reimbursement under a new CPT code, however, is
determined by the effective date of the new code. 34 Pa. Code § 127.153(c). Insurer
maintains that the 2013 Code is an entirely new code as the description of services
differs from those described in the Original Code, and the 2013 Code reduced the
therapy session from a flexible period of 45-50 minutes to a set period of 45 minutes.
Payment for Provider’s 2017-18 services was governed by the 2017 and 2018 Fee
Schedules, and the Hearing Officer’s determination in that regard was not in error.
Insurer rejects the Kuzma Decision as irrelevant and non-binding, and asserts
Hearing Officer Pickens was not required to make the same credibility findings,
particularly in light of the fact that Provider’s deposition was taken in an unrelated
case involving a different claimant. Furthermore, the Kuzma Decision represents an
error of law, as Hearing Officer Kuzma ignored the plain language of the applicable
regulations when he determined the 2013 Code was merely a modification of the
Original Code. Finally, Insurer contends that Provider’s argument that her testimony
was capriciously disregarded by the Hearing Officer has no merit. Rather, Hearing
8
Officer Pickens considered Provider’s testimony and explained her reasons for
discrediting portions of it.
A capricious disregard of evidence is a deliberate disregard of competent
evidence which a person of ordinary intelligence could not possibly have avoided in
reaching the result. Frankford Hosp. v. Workers’ Comp. Appeal Bd. (Walsh), 906
A.2d 651, 655 (Pa. Cmwlth. 2006). Capricious disregard of competent evidence
may also be described as the willful, deliberate disbelief of an apparently trustworthy
witness, whose testimony one has no basis to challenge. CRL of Maryland, Inc. v.
Workmen’s Comp. Appeal Bd. (Hopkins), 627 A.2d 1238, 1242 (Pa. Cmwlth. 1993).
Where substantial evidence exists to support the factual findings, and those findings
support the legal conclusions, it should remain a rare instance in which an appellate
court disturbs an adjudication based upon capricious disregard. Wintermyer, Inc. v.
Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 n.14 (Pa. 2002).
Reversal based on this type of review should occur only where it is clear beyond
doubt that an agency's legal conclusions were based upon a capricious disregard of
evidence. Id. at 486. This might occur if “the agency expressly refused to resolve
conflicts in the evidence and make essential credibility determinations.” Id.
In arguing Hearing Officer Pickens capriciously disregarded her testimony,
Provider points to the rejection, “without any contrary evidence or testimony, that
the medical service provided to the claimant was exactly the same[,]” regardless of
the code by which it was billed. Provider’s Br. at 13.
Provider’s argument misapprehends the findings and lacks merit, as Hearing
Officer Pickens carefully summarized the testimony presented and set forth her
credibility determinations. Provider’s testimony that the code descriptions, and not
the services rendered, were “almost exactly the same” was discredited, as Hearing
9
Officer Pickens found that the definitions for the Original and 2013 Codes clearly
differed. Pickens Decision, F.F. No. 14(b). Provider attributed these differences to
an attempt by the drafter to avoid confusion, however, this testimony appears to be
pure speculation, as there is no evidence to suggest Provider was involved in drafting
the 2013 Code or that she has special knowledge regarding the decision to replace
the Original Code. Moreover, contrary to Provider’s assertion her testimony was
deliberately ignored, Hearing Officer Pickens did indeed credit Provider’s
“description of the psychotherapy sessions she provides[.]” Id.
Provider’s argument may be more fairly characterized as disagreement with
the credibility findings made by Hearing Officer Pickens. As matters of credibility
and evidentiary weight are within the sole province of the fact-finder, Pittsburgh
Mercy Health System v. Bureau of Workers' Compensation, Fee Review Hearing
Office (U.S. Steel Corporation), 980 A.2d 181, 184-85 (Pa. Cmwlth. 2009), we will
not reweigh the evidence or substitute our credibility determinations for those of
Hearing Officer Pickens.
As to whether the 2013 Code constituted the establishment of a new code or
merely a revision of the Original Code, a question arises as to Hearing Officer
Pickens’ jurisdiction to make such a determination, given the limited scope of the
fee review process, which is limited to the timeliness of an insurer’s payment and
the correct amount of reimbursement owed to the provider. 34 Pa. Code § 127.251;
Crozer Chester Med. Ctr. v. Bureau of Workers’ Comp. Health Care Review Div.,
22 A.3d 189, 196 (Pa. 2011).
Section 306(f.1)(5) of the Act provides in part as follows:
All payments to providers for treatment provided
pursuant to [the Act] shall be made within [30] days of
receipt of such bills and records unless the employer or
insurer disputes the reasonableness or necessity of the
10
treatment . . . A provider who has submitted the reports
and bills required by this section and who disputes the
amount or timeliness of the payment from the
employer or insurer shall file an application for fee
review with the [D]epartment.
77 P.S. § 531(5) (emphasis added).
Therefore, Section 306(f.1)(5) mandates the prompt payment of any
undisputed treatment within 30 days of a bill’s receipt. In the event payment is not
made, or the amount paid is disputed, an application for fee review is filed. The fee
review process presupposes that liability for payment of medical bills has been
established. Nickel v. Workers’ Comp. Appeal Bd. (Agway Agronomy), 959 A.2d
498, 503 (Pa. Cmwlth. 2008).
Presently, Provider has not alleged her bills were not paid in a timely manner.
Provider has not argued that the fees paid were not calculated in accordance with the
applicable Fee Schedules, or that Insurer applied the incorrect CPT code in
determining her rate of reimbursement. Rather, Provider presents a challenge to the
classification of the 2013 Code as a new code subject to Section 127.153(c) of the
Regulations, which relies on the effective date of the new code to determine the
appropriate reimbursement rate. A determination of whether the classification is
appropriate or not is quite simply outside the jurisdiction of the medical fee review
process. Hearing Officer Pickens’ review was therefore limited to determining
whether Provider was appropriately compensated under the Fee Schedules.
Focusing on that narrow issue, we discern no error in her conclusion that
Provider was owed no additional payment. Based on the applicable Fee Schedules,
the reimbursement rate for the 2013 Code was $97.68 in 2017 and $100.61 in 2018.
There is no dispute that Insurer paid these amounts for Provider’s 2017-18 services.
Accordingly, we affirm the November 6, 2018 order of Hearing Officer Pickens, but
11
only to the extent she concluded Provider was appropriately reimbursed for
psychotherapy services rendered. We decline to address whether she correctly
concluded the 2013 Code was governed by Section 127.153(c) of the Regulations,
as that issue lies outside the limited jurisdiction of the medical fee review process.11
__________________________________
ELLEN CEISLER, Judge
11
Following oral argument on November 14, 2019, Insurer submitted an application to
amend its brief for purposes of correcting an outdated web link. Having received no objection
from Provider, Insurer’s application is hereby granted.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherri Landes, Ph.D., :
Petitioner :
:
v. : No. 1519 C.D. 2018
:
Bureau of Workers' Compensation :
Fee Review Hearing Office (Vigilant :
Insurance Company), :
Respondent :
ORDER
AND NOW, this 13th day of January, 2020, the November 6, 2018 order of
Bureau of Workers’ Compensation Fee Review Hearing Office is hereby affirmed.
Vigilant Insurance Company’s Application to Amend Brief is hereby granted.
__________________________________
ELLEN CEISLER, Judge