            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Geisinger Health System, and      :
Geisinger Clinic,                 :
                  Petitioners     :
                                  :
           v.                     : No. 1625 C.D. 2015
                                  : Submitted: January 22, 2016
Bureau of Workers' Compensation   :
Fee Review Hearing Office (SWIF), :
                 Respondent       :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge1


OPINION NOT REPORTED


MEMORANDUM OPINION
BY SENIOR JUDGE PELLEGRINI                          FILED: April 21, 2016


               Geisinger Health System and Geisinger Clinic (collectively, Provider)
petition for review of an order of the Medical Fee Hearing Officer (Hearing
Officer) determining that the State Workers’ Insurance Fund (Insurer)
appropriately reimbursed Provider for treatment and services rendered to Billy
Rossman (Claimant) from August 27 through August 30, 2014. The Hearing
Officer awarded Provider reimbursement for its treatment and services rendered in
its trauma center in the amount of 100% of its usual and customary charges


      1
          This opinion was reassigned to the authoring judge on February 29, 2016.
determined by reference to a database repricing Provider’s charges in accord with
other providers’ charges for similar treatment and services provided in the same
geographic area. Provider contends it is entitled to reimbursement of its actual
charges without reference to any repricing database which is used to recalculate its
rates based on charges for similar treatment in the geographic region. For the
reasons that follow, we affirm.


                                           I.
             The Hearing Officer found the following facts which are not in
dispute. In August 2014, Claimant, employed as a butcher, sustained serious
injuries when a cow, being euthanized, kicked him in the legs. After Claimant fell,
the cow kicked him again in either the head or back. On August 27, 2014,
Claimant originally went to Mount Nittany Medical Center where cervical spine
imaging showed an unstable C6 fracture.               Thereafter, Claimant presented at
Provider’s emergency department as a trauma transfer.              Claimant arrived by
ambulance on a long spine board with a cervical collar in place. On arrival,
Claimant complained of upper back pain and he may have sustained a loss of
consciousness at the time of injury. A CT scan of Claimant’s cervical spine
indicated a fracture of the posterior arch at C5-C6, with partial subluxation and
angulation of C6, as well as an unstable fracture with ligamentous injury. Provider
admitted Claimant to trauma surgery.            Id.    On August 29, 2014, Claimant
underwent surgery for an anterior cervical discectomy and fusion at C5-C7. On
August 30, 2014, Provider discharged Claimant in stable condition with follow-up
instructions. There is no dispute that the treatment was at a Level 1 trauma center
for life threatening or urgent injuries.



                                           2
               In September 2014, Provider submitted three HCFA-1500 (claim)
forms to Insurer seeking payment for its physicians’ treatment of Claimant.
Provider’s claim forms included itemized billing charges for treatment rendered to
Claimant from August 27 through August 30, 2014. Provider sought full payment
for services rendered in a Level I trauma center.


               In response, Insurer issued an explanation of benefits (EOB) which
recognized that Provider rendered inpatient services at a Level I or II trauma center
to a patient with immediately life threatening or urgent injuries. Insurer’s EOB
further stated: “As such ‘usual, customary and reasonable rates for this geographic
area have been utilized as the reimbursement methodology.’” (F.F. No. 3) (citation
omitted.)


               In response to Insurer’s EOB, Provider filed applications for fee
review under Section 306(f.1) of the Workers’ Compensation Act (Act).2            In
December 2014, the Medical Fee Review Section circulated administrative
decisions concluding that Insurer owed Provider an additional amount for
Claimant’s treatment. The Medical Fee Review Section noted that Provider’s
documentation met the guidelines in Section 127.128 of the Workers’
Compensation Medical Cost Containment (MCC) Regulations and determined that
Provider was entitled to be reimbursed at 100% of the billed charges.




      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531.




                                                3
             Insurer filed a timely request for a hearing. At the hearing, Insurer
submitted the deposition testimony of Linda A. Lengle (Repricing Manager), a
repricing manager for Hoover Rehabilitation Services. The Hearing Officer found
the Repricing Manager’s testimony credible in its entirety.          In determining
Provider’s usual and customary charges, the Repricing Manager used a usual and
customary charge database. In trauma cases, rather than applying the workers’
compensation fee schedule, she applies the usual and customary information at the
85th percentile.


             The Hearing Officer reversed the Medical Fee Review Section’s
determination. She noted that Section 127.3 of the MCC Regulations defines
“actual charge” as: “The provider’s usual and customary charge for a specific
treatment, accommodation, product or service.”         34 Pa. Code §127.3.       By
comparison, she noted that “usual and customary charge” is defined 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.” Id. The
Hearing Officer found Insurer’s payment to Provider shall 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.” Id. The Hearing Officer then determined that
Insurer properly reimbursed Provider at 100% of the usual and customary charge
for services in that geographic region for the services rendered to Claimant.


             In further explaining her decision, the Hearing Officer reasoned:




                                         4
            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.


(Hearing Officer’s Op., Conclusion of Law No. 8) (emphasis added.)


            Citing the Repricing Manager’s testimony, the Hearing Officer further
reasoned:

            Repricing Manager testified on behalf of Insurer that the
            [Department] specified in its “Statement of Purpose of
            Adoption of Usual and Customary Charge Reference”
            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 logical to
            reason that payment for services and treatment at a
            trauma center would be paid at the theoretically lesser



                                        5
              amount of 100% of the usual and customary charges as
              opposed to 100% of the actual charges.


Id. (emphasis added.)


              Accordingly, the Hearing Officer entered an order granting Insurer’s
fee review contest and holding that Insurer appropriately reimbursed Provider for
the treatment and services rendered to Claimant from August 27 through August
30, 2014, and that no additional payment was due. Provider petitions for review.3


                                             II.
              Provider contends that it is entitled to be reimbursed for the charges
for transport and the full course of acute care at its usual and customary charges,
not on a calculation based on other providers’ charges for similar treatment and
services provided in the same geographic area. Provider cites Section 306(f.1)(10)
of the Act, which 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

       3
         Our review is limited to determining whether the Hearing Officer’s findings are
supported by substantial evidence and whether the 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), appeal denied, 53 A.3d 759 (Pa. 2012).



                                             6
            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) (emphasis added.)


            Provider also cites Sections 127.128(c) and (d) of the MCC
Regulations, which it argues the Hearing Officer impermissibly disregarded.
Sections 127.128(c) and (d) provide:

            (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.

            (d) The determination of whether a patient’s initial and
            presenting condition meets the definition of a life-
            threatening or urgent injury shall be based upon the
            information available at the time of the initial assessment
            of the patient. A decision by ambulance personnel that
            an injury is life threatening or urgent shall be
            presumptive of the reasonableness and necessity of the
            transport to a trauma center or burn facility, unless there
            is clear evidence of violation of the ACS triage
            guidelines.


34 Pa. Code §§127.128(c), (d) (emphasis added.)




                                        7
             Applying Sections 127.128(c) and (d) here, Provider asserts that
Insurer concedes that inpatient services were provided by a Level I or Level II
trauma center to a patient with an immediately life threatening or urgent injury.
(Hearing Officer Op., F.F. No. 3.) Further, Insurer made no attempt to submit
evidence of a violation of the ACS triage guidelines. Consequently, Provider
asserts that Insurer failed to overcome the presumption of reasonableness and
necessity specified in 34 Pa. Code §127.128(d). As such, Provider argues Insurer
is not permitted to reduce Provider’s usual and customary charge using any
method, including a usual and customary charge database.


                                         III.
             This is one of three appeals in which Provider petitions for review of
the Hearing Officer’s decisions granting Insurer’s fee review contests and
determining Insurer appropriately reimbursed Provider based on the Repricing
Manager’s use of a usual and customary charge database. 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), we addressed the same issues that are before us in this case, and,
accordingly, for the same reasons that are set forth in that opinion, we affirm the
order of the Hearing Officer in this case.



                                       ____________________________________
                                       DAN PELLEGRINI, Senior Judge

Judge Simpson concurs in the result only.



                                             8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Geisinger Health System, and      :
Geisinger Clinic,                 :
                  Petitioners     :
                                  :
           v.                     : No. 1625 C.D. 2015
                                  :
Bureau of Workers' Compensation   :
Fee Review Hearing Office (SWIF), :
                 Respondent       :




                                    ORDER


               AND NOW, this 21st day of April, 2016, the order of the Bureau of
Workers’ Compensation Fee Review Hearing Officer in the above-captioned case
is affirmed.



                                      ____________________________________
                                      DAN PELLEGRINI, Senior Judge
