          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


New York Marine and General            :
Insurance Company and Cannon           :
Cochran Management Services Inc.,      :
                      Petitioners      :
                                       :
                  v.                   :   No. 860 C.D. 2018
                                       :   Argued: April 11, 2019
Bureau of Workers’ Compensation        :
Medical Fee Review Hearing             :
Office (Lam),                          :
                      Respondent       :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                       FILED: May 2, 2019


      New York Marine and General Insurance Company and Cannon Cochran
Management Services Inc. (together, Insurer) petition for review of the Order of
the Bureau of Workers’ Compensation Medical Fee Review Hearing Office
(Bureau), issued by Medical Fee Review Hearing Officer David Torrey (HO
Torrey), that granted the Requests for Hearing to Contest Fee Review
Determination (Requests) filed by Sofia Lam, M.D. (Provider). HO Torrey found
that Insurer did not prove it properly reimbursed Provider for the ultrasound-
guided lumbar injections (Injections or Treatment) Provider rendered to Isaam
Pinckney (Claimant) where Insurer denied payment without making any effort to
downcode (apply a different Billing Code) that Treatment. On appeal, Insurer
argues it had no obligation to downcode or pay for the Treatment because the
Treatment has no corresponding Billing Code under Medicare. Insurer further
argues that, because the Injections are not approved by the Food and Drug
Administration (FDA), it is not liable to pay for them and, therefore, HO Torrey
exceeded the scope of his jurisdiction when he found it was liable. Upon review,
we affirm.
      Provider treated Claimant for work-related injuries to his back with
Injections on January 20, 2017, and March 17, 2017. She submitted separate
invoices to Insurer for those Injections. (HO Torrey Determination, Finding of
Fact (FOF) ¶ 2.) Each invoice was submitted on an approved Health Insurance
Claim Form, which provided a diagnosis code and separate Billing Codes for the
office visit and the Injections, the latter of which was given Billing Code 64999,
which describes the services provided as “unlisted procedure of the nervous
system.” (Reproduced Record (R.R.) at 19a, 46a, 67a; Insurer’s Brief (Br.) at 11.)
The January 20, 2017 invoice was accompanied by an office note by Provider
explaining the Treatment and a letter from Provider to Claimant’s referring
physician about Provider’s examination of Claimant and plan to treat Claimant
with the Injections. (R.R. at 20a-23a.) The office note not only explained the
Treatment, but also described the type of needle used and medications injected into
Claimant’s back. The charge for the January 20, 2017 Injection was $1950. (Id. at
19a.) The March 17, 2017 invoice was accompanied by an office note explaining
the Injection provided that date. (Id. at 47a.) The charge for the March 17, 2017
Injection was $1890. (Id. at 46a.)




                                        2
       Insurer denied payment for the Treatment.1 In its denial of payment for the
January 20, 2017 Injection, Insurer requested that Provider “please submit an
itemized billing to ensure accurate processing.” (Id. at 26a.) In its denial of
payment for the March 17, 2017 Injection, Insurer stated “please re-submit with
the appropriate [Billing Code].” (Id. at 50a.)
       After receiving the denials, Provider filed Applications for Fee Review
(Applications) pursuant to Section 306(f.1)(5) of the Workers’ Compensation Act,2
77 P.S. § 531(5), challenging Insurer’s nonpayment. The first level Fee Review
Office denied the Applications because the Workers’ Compensation (WC) fee
calculation for a treatment with the Billing Code of 64999, as Injections were
coded here, was $0.00. Therefore, “the amount due to the [P]rovider [was] $0.00”
because the “[d]ocumentation does not support the billed service(s).” (R.R. at 29a-
32a, 58a-61a.)
       Provider then filed the Requests, seeking a de novo hearing on Insurer’s
nonpayment. The Requests were assigned to HO Torrey, who held a hearing on
April 19, 2018. In support of its decision not to pay for the Injections, Insurer
offered the Fee Review Office decisions and rested its case. (Id. at 91a-93a.)
Provider offered, for each fee dispute, the invoice, Provider’s supporting materials,
and Insurer’s explanation for denying payment. (Id. at 93a-94a.) Provider noted
that the Fee Review Office decisions were not precedential or binding because the
matter was being heard de novo by HO Torrey. (Id. at 94a-95a.)



       1
          Insurer paid for the January 20, 2017 office visit in part and paid the entire amount
listed in the invoice for the March 17, 2017 office visit. Provider did not challenge Insurer’s
partial payment of the January 20, 2017 office visit.
        2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(5).



                                              3
       HO Torrey issued his decision on May 29, 2018, finding that Insurer did not
meet its burden of proving that it properly reimbursed Provider for the Treatment
given to Claimant. HO Torrey rejected Insurer’s arguments, raised for the first
time in the de novo proceeding, that it did not have to pay because the Injections
are not approved by the FDA, there was no Medicare Billing Code for that
Treatment due to its unapproved status, and, without a Medicare Billing Code,
there is nothing in the WC Fee Schedule setting the amount of payment for that
Treatment. (FOF ¶ 6.) HO Torrey further rejected Insurer’s contention that he had
“no jurisdiction even to hear the present case” because fee review proceedings
could not be used to decide liability issues. (Id.) HO Torrey found Insurer’s
arguments to be “puzzling and abstract” and “non-cognizable.” (Id.) HO Torrey
explained that had Insurer “not believe[d] that 64999 was appropriate, it should
have downcoded and proposed a better procedure code which was more
appropriate.” (Id.) Noting there was no evidence that, prior to denying payment
for the Injections, Insurer made any attempt to downcode the Treatment, HO
Torrey found that Insurer did not meet its burden of proof. (Id. ¶¶ 5-7.) Therefore,
HO Torrey granted the Requests and directed Insurer to pay Provider for the
Injections. Insurer now petitions this Court for review.3
       On appeal, Insurer argues that HO Torrey erred in placing the burden on it to
downcode Provider’s bills where it had no obligation to do so and where Provider
intentionally used Billing Code 64999, due to the Injections having no specific


       3
          This Court’s “review in medical fee review cases is limited to determining whether
constitutional rights were violated, whether an error of law was committed, or whether the
necessary findings of fact were supported by substantial evidence.” Jaeger v. Bureau of
Workers’ Comp. Fee Review Hearing Office (Am. Cas. of Reading C/O CNA), 24 A.3d 1097,
1100 n.9 (Pa. Cmwlth. 2011).



                                             4
Billing Code under Medicare. As the corresponding WC allowance for Billing
Code 64999 is $0.00, Insurer argues this was the amount for which it was
responsible. It notes the Injections for which Provider seeks payment are not
FDA-approved and, as such, are not Medicare-priced.           Because the WC Fee
Schedule in Pennsylvania is based on a percentage of the Medicare price, Insurer
argues the lack of Medicare pricing renders the appropriate payment for the
Injections zero. Further, Insurer argues, by requiring it to pay for unapproved
Injections, HO Torrey impermissibly made a liability determination thereby
exceeding his jurisdiction in this fee review proceeding. (Insurer’s Br. at 13 (citing
Catholic Health Initiatives v. Health Family Chiropractic, 720 A.2d 509, 511-12
(Pa. Cmwlth. 1998)).)
      Provider responds that Insurer was required to pay for the reasonable and
necessary medical services she provided to Claimant under Section 306(f.1) of the
Act, and Insurer did not meet its burden of proving that it properly paid for the
services she rendered to Claimant for his work injury. While recognizing that the
Act and regulations refer to using appropriate Medicare Claim forms and Billing
Codes, Provider argues that insurers are obligated to pay medical providers for
treatment rendered for work-related injuries even if that treatment is not a
compensated service under the Medicare program. (Provider’s Br. at 5.) Provider
argues an insurer cannot simply deny payment for treatment that does not have a
Billing Code or where a nonspecific Billing Code is used, but must use the
regulatory downcoding process. Legion Ins. Co. v. Bureau of Workers’ Comp. Fee
Review Hearing Office (Ferrara), 42 A.3d 1151, 1152, 1154 (Pa. Cmwlth. 2012).
Here, Provider asserts, she billed Insurer using the required form and provided
written support for the Treatment, and Insurer presented no evidence that it



                                          5
attempted to downcode, recode, or explain what the appropriate Billing Code for
the Treatment would be. Provider argues, therefore, HO Torrey correctly found
that Insurer did not meet its burden of proving that it properly reimbursed Provider
for that Treatment.
      We begin by addressing Insurer’s jurisdictional argument, as it is a threshold
issue. Insurer asserts that HO Torrey’s jurisdiction in this matter was limited to a
determination on the amount and/or timeliness of its payment of Provider’s bills,
and he could not address issues of liability. Workers’ Comp. Sec. Fund v. Bureau
of Workers’ Comp., Fee Review Hearing Office (Scomed Supply, Inc.), 195 A.3d
332, 333-34 (Pa. Cmwlth. 2018); Catholic Health Initiatives, 720 A.2d at 511-12.
Insurer maintains HO Torrey had no jurisdiction to find Insurer liable for the
Injections, for which Insurer argues it has no liability because the Injections are not
FDA-approved for the purpose used by Provider. While we agree that whether a
treatment is FDA-approved for a particular purpose may go to the issue of liability,
we disagree this issue is properly raised in the fee review process. Rather, it
should be raised within the framework of the Utilization Review (UR) process
under Section 306(f.1)(1)(i) and (6) of the Act, as it is a challenge to the
reasonableness and necessity of the treatment. 77 P.S. § 531(1)(i), (6) (requiring
employers or insurers to pay for, inter alia, reasonable medical services provided
to a claimant for a work-related injury but allowing for a challenge to the treatment
as being not reasonable or necessary through the UR process); see Barnhart v.
Workers’ Comp. Appeal Bd. (Tremont Borough)4 (Pa. Cmwlth., No. 66 C.D. 2017,
filed Aug. 16, 2017), slip op. at 7-9 (affirming the denial of a claimant’s challenge

      4
      Barnhart is cited for its persuasive value in accordance with Section 414(a) of the
Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).



                                           6
to a UR determination that found a provider’s use of a prescription medication in a
manner not approved by the FDA not reasonable and necessary for the treatment of
the claimant’s work injury). There is no evidence in the record that Insurer has
sought UR of the Injections, and it may not raise the reasonableness of the
treatment in a proceeding focused on the timing and amount of its payment to
Provider.   Accordingly, there was no error in HO Torrey rejecting Insurer’s
challenge to his jurisdiction in this matter.
      We now turn to the question of whether Insurer met its burden of proving
that it properly reimbursed Provider for the Treatment she provided to Claimant on
January 20, 2017, and March 17, 2017. Section 306(f.1)(1)(i) of the Act requires
employers or their insurers to pay for medical services rendered to WC claimants.
77 P.S. § 531(1)(i). Providers of those services are required to submit their
requests for payment on a standardized claim form, which should list their fee and
use, where possible, and the standard Medicare Billing Codes for the treatment. 77
P.S. § 531(3)(vii) (stating that “[i]f a Medicare [Billing C]ode exists for application
to a specific provider specialty, that code shall be used”); Legion Ins., 42 A.3d at
1152, 1154 (noting the form requirement and that there are some treatments for
which there are no Billing Codes under Medicare). “The insurer then calculates
the ‘proper amount for payment’” for the invoiced treatments. Jaeger v. Bureau of
Workers’ Comp. Fee Review Hearing Office (Am. Cas. of Reading C/O CNA), 24
A.3d 1097, 1100 (Pa. Cmwlth. 2011) (citation omitted).
      As occurred here, if an insurer does not pay a provider’s bill, the provider
may seek review of the insurer’s decision, which is first addressed by the Fee
Review Office. A party aggrieved by the Fee Review Office’s decision on a
medical fee review may request a de novo proceeding before a Hearing Officer. 34



                                           7
Pa. Code § 127.259(a). “During a fee review hearing, the insurer bears the burden
of proving, by a preponderance of the evidence, that it acted properly in
downcoding or reimbursing the provider.” Jaeger, 24 A.3d at 1101 (footnote and
citation omitted).   A preponderance of the evidence is the lowest evidentiary
standard and is the equivalent to a “more likely than not” inquiry. Id. at 1101 n.10
(citing Commonwealth v. Assorted Consumer Fireworks, 16 A.3d 554, 558 n.10
(Pa. Cmwlth. 2011)). The hearing officer is the fact finder, and the Court “will not
reweigh the evidence or substitute our credibility determinations for those of the
hearing officer.” Id. at 1101.
      Insurer’s arguments are premised on its contention that the Injections have
no corresponding Billing Code under Medicare and the Billing Code used, 64999,
has a corresponding WC reimbursement amount of $0.00. In the absence of a
Billing Code approved by Medicare, Insurer asserts, it does not have to pay
Provider for the Treatment she rendered to Claimant. However, the lack of a
Medicare payment mechanism or Billing Code for a particular treatment does not
relieve an insurer of its obligation to pay for treatment rendered to a claimant.
Under Section 306(f.1)(3)(i) and (viii) of the Act, the Bureau’s regulations, and
this Court’s precedent, where there is no designated Medicare Billing Code or
Medicare payment mechanism for a particular treatment, an insurer must either
downcode the treatment or pay for the treatment using the usual and customary
charge method set forth in the Act. 77 P.S. § 531(3)(i), (viii); 34 Pa. Code §§
127.102, 127.207; Legion Ins. Co., 42 A.3d at 1154-55; Jaeger, 24 A.3d at 1100-
01.
      Section 306(f.1)(3)(viii) of the Act provides that, if an insurer believes a
Billing Code used by a provider does not accurately reflect the treatment provided,



                                         8
the insurer may downcode or change the provider’s bill if the change is consistent
with Medicare’s guidelines, the insurer has sufficient information to do so, and the
insurer consults with the provider about the proposed change.                          77 P.S.
§ 531(3)(viii); Legion Ins. Co., 42 A.3d at 1154-55; Jaeger, 24 A.3d at 1100-01.
The downcoding process is governed by the Bureau’s regulations, and that process
must be followed prior to an insurer changing a provider’s bill. 34 Pa. Code
§ 127.207.5       Our precedent recognizes that, where a miscellaneous Medicare

       5
           The regulations sets forth the following procedure for downcoding:

       (a) Changes to a provider’s codes by an insurer may be made if the following
       conditions are met:

             (1) The provider has been notified in writing of the proposed changes and the
             reasons in support of the changes.

             (2) The provider has been given an opportunity to discuss the proposed
             changes and support the original coding decisions.

             (3) The insurer has sufficient information to make the changes.

             (4) The changes are consistent with Medicare guidelines, the act and this
             subchapter.

       (b) For purposes of subsection (a)(1), the provider shall be given 10 days to
       respond to the notice of the proposed changes, and the insurer must have written
       evidence of the date notice was sent to the provider.

       (c) Whenever changes to a provider’s billing codes are made, the insurer shall
       state the reasons why the provider’s original codes were changed in the
       explanation of benefits required by § 127.209 (relating to explanation of benefits
       paid).

      (d) If an insurer changes a provider’s codes without strict compliance with
      subsections (a)--(c), the Bureau will resolve an application for fee review filed
      under § 127.252 (relating to application for fee review--filing and service) in
      favor of the provider under § 127.254 (relating to downcoding disputes).
(Footnote continued on next page…)


                                                 9
Billing Code is used for a treatment, an insurer can downcode that treatment using
the procedures set forth in 34 Pa. Code § 127.207. Jaeger, 24 A.3d at 1100-01. In
Jaeger, the provider used a “miscellaneous physical therapy” Medicare Billing
Code to bill for certain treatments that do not have a specific Billing Code under
Medicare. Id. at 1099. After following the procedures set forth in the regulations,
the insurer downcoded the treatment to a type of physical therapy treatment that
had a specific Billing Code. Id.
       In addition to the downcoding provisions, the Act, in Section 306(f.1)(3)(i),
provides that

       [i]f the prevailing charge . . . [or] reimbursement has not been
       calculated under the Medicare program for a particular treatment . . .
       the amount of the payment may not exceed eighty per centum of the
       charge most often made by providers of similar training, experience
       and licensure for a specific treatment . . . in the geographic area where
       the treatment . . . is provided.

77 P.S. § 531(3)(i). The Bureau’s regulations echo this statutory mandate, stating
that “[i]f a Medicare payment mechanism does not exist for a particular treatment,”
the amount paid to a “provider shall be either 80% of the usual and customary
charge for that treatment . . . or the actual charge, whichever is lower.” 34 Pa.
Code § 127.102 (emphasis added).
       In Legion Insurance, the provider submitted an invoice using a temporary
non-Medicare Billing Code because the treatment being invoiced had no
corresponding Medicare Billing Code. 42 A.3d at 1152, 1154. The insurer denied
payment outright “because the code [used] was not in the Commonwealth’s
_____________________________
(continued…)

34 Pa. Code § 127.207.



                                          10
approved Fee Schedule.” Id. at 1152. The provider filed a fee review, the initial
determination was in the insurer’s favor, and the provider requested a de novo
hearing. Following that de novo hearing, the denial was reversed on the basis that
the provider’s use of that code was not fatal and that, under the regulations, the
“[i]nsurer could have compensated [the provider] at 80% of the usual and
customary charge for the treatment or downcoded [the] fee to an appropriate code
in the approved Fee Schedule.” Id. at 1153. Having not done either of those
things, the Bureau found that the insurer did not establish that it properly denied
payment. Id. The insurer appealed, and this Court affirmed, holding that the fact
that there was no code in the Fee Schedule for the particular treatment did not
render the use of the other code improper. Id. at 1154. Because the code used by
the provider was recognized as one for that particular treatment, and the provider’s
invoice plainly identified the treatment provided, we held the insurer could not
summarily deny payment but had to either downcode the treatment or pay 80% of
the usual and customary charge. Id. at 1155.
      Insurer acknowledges that the Injections do not have a specific Billing Code
under Medicare and that, for this reason, Provider used the general or
miscellaneous Billing Code in the WC Fee Schedule for “unlisted procedures of
the nervous system.” (Insurer’s Br. at 11.) Although Insurer asserts that Provider
“intentionally” used Billing Code 64999, Provider submitted a bill requesting
payment for the Treatment, which would not have been necessary if Provider
intended not to be paid. Instead, Provider’s use of that code was like the non-
Medicare Billing Code used by the provider in Legion Insurance, 42 A.3d at 1154,
or the miscellaneous Medicare Billing Code used by the provider in Jaeger, 24
A.3d at 1099.     Here, Provider used the Billing Code provided for unlisted



                                        11
procedures to the nervous system (which the Injections were), the invoices plainly
identified the specific Treatment she provided to Claimant, and she included with
the invoices her office notes describing the Treatment. (R.R. at 19a-23a, 63a-64a.)
Insurer has not presented evidence that it requested UR of the Treatment on the
basis that it is not reasonable or necessary and, therefore, it is obligated to pay for
the Treatment under Section 306(f.1)(1)(i) of the Act. Thus, upon its receipt of the
invoices and materials from Provider, Insurer could not simply deny payment
based on a lack of a Medicare mechanism for payment, but had to determine the
amount of proper payment using either the downcoding process or the usual and
customary charge method. Legion Insurance, 42 A.3d at 1155. Insurer, which
bore the burden of proving its payment decision was proper, did not present
evidence that it did either of these things, instead relying on the first level
determinations’ conclusion that the amount due to Provider was $0.00. This was
not in accordance with the Act, the regulations, and this Court’s precedent.
Accordingly, because “Insurer failed to [downcode or pay the usual and customary
charge] and, instead, tried to avoid paying [Provider], which [i]s impermissible
under the Act and the regulation[s],” id., we find no error in HO Torrey’s
conclusion that Insurer failed to meet its burden of proving that it properly
reimbursed Provider for the January 20, 2017 and March 17, 2017 Injections.
      Accordingly, the Order granting Provider’s Requests and directing Insurer to
pay Provider for the Injections is affirmed.

                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge



Judge McCullough did not participate in this matter.



                                          12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


New York Marine and General           :
Insurance Company and Cannon          :
Cochran Management Services Inc.,     :
                      Petitioners     :
                                      :
                 v.                   :   No. 860 C.D. 2018
                                      :
Bureau of Workers’ Compensation       :
Medical Fee Review Hearing            :
Office (Lam),                         :
                      Respondent      :


                                ORDER


     NOW, May 2, 2019, the Order of the Bureau of Workers’ Compensation
Medical Fee Review Hearing Office, entered in the above-captioned matter, is
AFFIRMED.



                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
