### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON REMAND

NO. 03

- 17

- 00666

- CV

Facility Insurance Corporation , Appellant

v. Patients Medical Center, Appellee

FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -13-003388, THE HONORABLE LORA J. LIVINGST ON , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This appeal concerns a medical fee dispute under the Texas Wor kers ’ Compensation Act (TWCA), see generally Tex. L ab. Code §§ 401.001–419.007, between the
insurance carrier F acility Ins urance Corp oration ( the Carrier) and the provider Patients Medical Center ( the Provider) for medical services the Provider provided to an injured worker (the Claimant)

. After the Provider ini tiated the process for medical fee dispute resolution (MFDR) ,

an MFDR offic er w ith the Texas Department of In surance, Division of Workers ’ Com pen sa tion (the Division) adjudicated the dispute and awarded the Provider $20,495.78 in additional
reimbursement . The Carrier requested a contested case hearing before the S ta te Office o f
Administrativ e Hearings (SOAH)

. After the SOAH hearing , the admini st rative law judge ( the2 ALJ ) signed a Decision and O r der (the SOAH Order) concluding that the Carrier “failed to carry
its burden that Provider is not entitl ed to $20,495.78 ” i n additiona l r eimbursement

. T he Car r ier s ou ght judicial review , raising multiple issues

. The district co urt
affirmed the SOAH O rder, and the Carrier appealed to this Court

. We reversed on a single
issue

— determin ing that the ALJ improperly shifted the bur den of proof fro m th e Provider to t he
Carri er in the con tested c ase he ar ing before SOAH

— and remanded the case to the Division for further proceedings

. See Facility Ins. Corp. v. Patients Med. Ctr. , 574 S.W.3d 436, 444 (Tex. App.

— Austin 2018), rev ’ d an d re manded , 623 S.W.3d 336 (Tex. 2021)

. But t he Texas Supreme Court reversed our ruling , holding t hat “ i n a worker ’s compens at io n pr oceeding, the burden of proof in a contested case hearing before SOAH is on the party seeking review of the Division ’s
init ial MFDR de cision. ” Patients Med. Ctr. v. Facility Ins. Corp. , 623 S.W.3d 336 , 343 (Tex. 2021) ; se e al so id. at 33 8 n .2 , 341 (noting that r ules autho rized party to “ seek review of t he [ MFDR ] decision ” by requesting conteste d case hearing and that burden o f pr oof is on “ ‘ the party seeking relief ’ ” (quoting 28 T ex. Admin. Code § § 133.307(f) (MDR of Fee Disp utes) , 148.14(b) ( Burden of Proof ) ) ). 1 The Texas Supreme Court remanded the case to this Court to
consider the Ca rr ie r ’ s other appellate issues that we d id n ot init ially reach:

(1) whether the ALJ erred in failing to a pply a contr act ual fee ra te; (2) whether [the Provider ] failed to submit a timely, complete m edical bill; (3) w hether [the Provider ] waived its entit le me nt t o MFDR by failing to request rec onside ratio n of [the Carrier ] ’s denial of the “ corrected bill ” ; and (4) whether th e ALJ incorrectly determined [the Provider ] ’s entitlement to and the amount of re imbursement

.

Id. at 340 n.6 , 343

.

1 We cite to the versions of Division rules that wer e i n ef fect during the time frame rele vant to the underlyi ng MFDR proceeding

. All c itations t o Titl e 2 8 of the Texas Administr a tive Cod e are to ru l es promulgated by the Tex as Dep a rtment of Insur ance.3 On remand, a lthough we overrule the first three issues , see Tex as Comm ’ n on
Env ’ t l Quality v. Maver ick C ou nt y , 642 S.W.3d 537, 5 50 ( Tex. 2022) (noting that appellate court
could reach issues “ not strictly necessary to each court ’ s dispos ition of the case ” and

“ particularly in a complex administrative appeal ” ) , we reve rs e the SOAH Order in p art based on
the Carrier ’ s fourth issue and remand the case to the Division for further proceedings consistent with this opinion , s ee Tex. Gov ’ t Code § 2001.174 (2) ; Freightliner Corp. v. Motor Vehicle Bd. of Tex. Dep ’ t of Tr ansp. , 25 5 S.W.3d 356, 366 (Tex. App.

— Austin 2008, pet. denied) ( “ Courts are legislatively empowered to limit the scope of a remand to the part of an order that contains

error. ” )

. We affirm t he SOAH Order in all other respects. See Tex. Gov ’ t Code § 2001 .174(1).

B A CKGROU ND The Texas Supreme Court has provided an over view of the legal frame work for
MF DR pro ceedings , see Patients Med. Ctr. , 623 S.W.3d at 338 ; see also Vista Med. Ctr. Hosp.

v. Tex as Mut. Ins. , 416 S.W.3d 11, 15

– 18 (Tex. App.

— Austin 2013, n o pet.) , an d both our initial

o pinion and the Texas Supreme Court ’ s opinion in this app eal p rovide the procedural a nd fac tual background of this case, see Patients Med. Ctr. , 623 S.W.3d at 338

– 4 0 ; F acility I ns. , 574 S.W.3d

at 439

– 41

. Accordingly, we limit our back gr ound d is cussion here to what is necessa ry to resolve
this appeal and refer read ers to th o se opinions for additio nal fa ct ual and legal background

. On Augu st 19, 2009, Dr. Chris Fuke with the Provi der submitted a
P re - authoriz ation R equest /Pro c edure Orde r to p erform two p rocedures o n the Clai mant : “ S pi nal
cord stimulator

- revision ” and “ Programming , ” coded as Curre nt Pro ce dura l Term inology (CPT)4 63660 and 95972 , respectively

. 2 The request also state d , “ Please consider the following procedures for pre - aut h oriza tion. I am also faxing [.] See attach ed documentation

. . . . ” ( Ellipsis in original.) T he appellate rec ord , however, does not include any “ attached
documentation ” to the preauthorization request.
On September 22, the Carr ier ’ s agen t U niMed Di rec t f axed the Provider a n August 24 re port by D r
. Lisa Gill that recommended approvi ng the request. 3 D r
. Gi ll wa s an

“ an esthesiologist reviewer , ” and “ one of [U niMed Direct ’ s] physician advisers, who

— who
renders the decision on these approvals

. ” I n the rep ort, D r
. Gill described the Claimant ’ s

“ history of condi tion ” as “ hav [ing] an spina l cord s ti mula to r (S CS) in that worked well but the
leads were removed in 10/08 due to migration ” and noted that “ [t]he MD is requesting repl acement of the lea ds

. ” In th e r eport ’ s co nclusion , D r
. Gill explain ed : “ T he [Claimant] had good relief with h er l as t SC S and poor relief (pain 10/10) now tha t it is out. The leads had moved so were pulled. The generator remains. The MD wants to rep lace the leads, hook them
back u p, and reprogram the unit to get maximum coverage. This is a very reasonab le tx p lan

. ” On September 23, Dr. Fuke performed surger y on the Claimant an d signed the Operative Note desc ribing the procedure . The Operative N ote list s thr ee proc e dures perfo rmed

— “ Spinal cord stimulat or lead and generator revisio n , ” “ Fluoroscopic gu idan ce for t he

2 In the American Medical As sociation ’ s Current Procedural Terminology (2004) , whic h
w as i ncluded in the record, CPT 6366 0 is described as “ R evision or re mov al of sp in al neurost imul ator electrod e p ercu taneous ar ray(s ) o r pla te/pa dd le(s) ” and C PT 95972 is d escrib e d
as “ complex brain, spinal cord, or peripheral (except cranial nerve) neuro s ti mula tor puls e gene rator/transmitter , with in traoperativ e or subseque nt programm in g, first h our
. ”

3 UniMed Direct is “ t h e b ill revi e w co mpany who processes th e bi l ls ” f or “ the third

party adminis trator for [the Carrier]. ” A t the SOAH hearing, UniMed Direct ’ s e mployee Ian B la duell testified t hat the report is “ summarizing wh at the p hysician wants t o do ” and is the
rev i e wing d oc tor ’ s “ conclusion afte r revi ewing what ’ s submitted for preauthorization. ”5 above procedure , ” and “ Epidural blood patch ”

— and na rratively des cribe s the placement , adjustment, and anchoring of leads and the diss e ction and pl acement o f the gener ator

. On S eptember 30, the Provider sent a medical bill to U ni Me d Dire c t , l isting
ninet een items that total ed $94,640

. 4 8

. In November , UniMed Direct sent the Provider a check for $2,354.75 with an explanation of benefit s (the 2010 EOB) tha t deni ed mos t o f th e billed
items

. Th e only item that was no t de nied was for “ revise/r emove neuroelec trode ” c ode 63660,
but U niMed redu ced the amoun t from $2,558 .75 to $2,354.05 , stating as the reason:

“ A2

- contractual adju stment a ny reduction is in in ac c ordan ce wit h the F ocus/AETNA Work er ’ s Comp Access LLC co ntra ct. For questions reg arding reductions please cal l 1

- 800

- 238

- 8288. ” (Capitalization removed .) T he r easons listed next to the denied items were either “ w orkers compensati on state fee schedule ad j ustme nt. F ee g uid eline MAR reduc tion ” or “ p ayme nt
denied/reduced for exceeded pre certification/aut horization. ” ( Capitalization removed.)
On March 11, 2010, the Provider sent Uni Med Direct the original bill with “ 1 st Request fo r Reconside ration

–

No t Du p licat e ” han d written on it and a cc om panying
documenta tion , including the Operative Note

. In a co ver letter, the Provider explained:

Our facility is requesting fo r the above claim to be reviewed and reconsidered. We have received a small payment of $2,354

. 75; b eing i nfo rmed t ha t 2 of the proce dures performed were den ied, as well as all the im plants. I have obtained a copy of all of the invoices for implants and a sk that you rev iew those. According to our ve ndor the impla nts were u sed for Revision/removal of Ne uro Ele ctr oders th eref ore at least some of our im plants should have been consi dered and not denied in its entirety.6 O n March 25, UniMed D irect responded with an explanation of review , reasserting its original payment d ecision a nd again li sting itemize d re as ons fo r deni al of payment

. 4 On April 19, the Provider se nt a “ 2 nd level of Reconsideration ” to UniMed
Direct

. Across the bill was handwritten “ 2nd Level of Appeal ” and u nder the remarks section of
the bill was handwritten “Corrected Bill.” The c o ver l etter states:

O ur facility r eceived our 1 st level respon se from our appeal, w e are now submitt ing the 2 nd level, afte r reviewing the billed charges it was d etermined that line charge s for CP T Code 360 were billed incorrect ly. On this corrected bil l y ou wi ll fin d that th ere are (3) l ine items for this Rev Code; we understand that o n ly one procedure was allowed CPT code 6 3660 since our Aetna Networ k was used
o n re pricing this c laim, the allow ed amount of the co rrected charges a re: CPT Code:63660 $3 ,411.68 @ 92% =$3,138. 75 less the amount previousl y paid $2,354.75 leav i ng a balance of $784.00 in which we are seeking reimbursement for.

The attache d “Corrected Bill ” increa sed the “T otal Charges ” f or each of three items

—

“ revise/remove neuroe l ect 6 3660 , ” “ revise/ remove neu ro recei 63688, ” and “ treat epi dural spine
l es 62273 ”

— from th e $2,558.75 listed on the original bill to $3,411 .68 and omitted a fourt h
item

— “ analyze neurostim, compl 95972 ”

— from the origi na l bill

. (Capitalization removed.) O n

t he line f o r “ revis e/remove neuroelect 63660 ”

— the only ite m the Carrier p aid after receiving the original bill

— was handwritten “ @ 92% $3 , 138.75. ” Finally, the bi ll cod e “ 0131 ” on the

“ Corrected Bill ” was c rossed out and “ 137 ” and “ CORRECTED ” were handw ri t ten in stead

. On Apr il 30 , U niMed Direct sent the Provid er another ex planation of review, reass erting its original

4 These reas on s include d : “ Payment d enied/reduced for excee ded precertification/authorization. UMD recomm ends $0.00 ”; “Pa y men t is inc luded in the a ll owance fo r ano ther s erv ice/ procedure. I n cluded i n global r eimbursement. UMD recommen ds $0.00 ”; “Original audit decis io n is being maintained. Upon review , it was d etermined that this trea tment was p r ocessed properly

. $0.00 ”; a nd “Rec onsi deration no ad di tional pa yment . Ori gin al p ayme nt decisi o n is bei ng maintai ned. Upon review, it was d etermined that this claim was pr oc essed properly. ” (Cap italization r emoved.)7 payment decision and raising the additional explanation co de “ 29 The time limit for filing h as expire d. $0.00

. ” The Provide r did not reque s t reco nside ration of the “ Corrected Bill. ”
On September 22, 2010 , the Provider requested MFD R and asserted that the
Carrier owes a r emaining $92,285.7 3 , as reflected on the original bill

. On Nov ember 3, the
Division sen t the Ca rrier a fax requesting a d d itiona l inf ormation , including “ [a] copy of the
contract between the informal /voluntary network and [the Provid er ] ” and “ [d]ocumentat i on to support that [the Provider ] was noti fied in accordance with 2 8 Te x. Admi n. Code § 133.4

. ” On
Novem ber 19, Aetna Wo r ker ’ s Com p Access subm itted to the D i vision a March 14, 2008
Ho spital Services Agreement ( the Aetna Contract ) between the Pro vider and Aetna H ea lt h, Inc.
In the cover letter to the Divi sion, Aetna ’ s rep res entativ e stated, “ In response to t he [Division ] ’ s inquir y re g arding co mpl iance with 28 Tex . Admin. Code 133.4, [the Provider ] has been made aware of their p artici pation status w ith [ A etna Worker ’ s Comp Access ] s ince A pril 15, 2008. ”
On March 13, 2013, the MFDR officer sign ed her fin din gs and decision s
. A s to
th e Aetna Con tract, the MFDR officer found:

Review of the submitted information found insufficien t docu mentation to support that the disput ed services were subject to a contractu al fee arrangement between the parties t o this disput e. Nev er theles s , on N ovemb er 3, 2010, the Divisi on requested the respondent to provide a copy of the referenced contract as wel l as documentation to support notifi cation to the healthcare provider, as r equired by 28 Texas Administrative Code § 133.4 , th at the he althcare prov id er ha d been give n access to the contracted fee arrangement. Review of the submitted information fi n ds tha t the documen tation does not support notification to the healthcare provide r in the time and manner required. The Division conc ludes t hat, pur s uant t o § 1 33.4(g), th e insurance carrier is not entitled to pay the health
care provider at a contracted f e e.8 T he MFDR officer also made f indings that some of the Carrier ’ s reas ons for denial were supporte d as to some items bu t not other s and made variou s adjus tment s , reducing the amount due from $92,285.73 to $20,495.78. The Provider did not contest the $ 20,495 .78 amount, but o n April 2, th e Carrier requested a c ontested case hearing before SOAH

. A t the SOAH hearing , the documen ts
described above wer e admit ted i nto evidence an d Paul Hanson , the Provider ’ s chief financial

o fficer , and Ian Bla duell, an e mp loyee with Un i Med Direct , testified as witness es
. On August 28 , the ALJ s igned the SOAH Order

. Among other findin gs and conclu sions , the ALJ
found t h at “ [t ] he i nitial bill, wi th all fields completed, was rec eived by Carrier within 95 day s
from the dat e o f service but contained a procedure coding error ” and concluded that it “ wa s a complete medical bill as def ined by 28 Texas Administrativ e Code § 133. 2 ” a nd that “ Carrier
f ai led to carry its burden that [th e Provider ] i s not entitled to $20 , 495.78 in additional
reimbur sement. ” T he Carr ier sought ju di cial review of the SOAH Order , and t he district

co urt affirmed

.

DISCUSS ION
On r emand , t he Carrier reas s ert s i ts f o ur appellate issue s challenging the SOAH
Order that were not add ressed in our in itial opini on and in the Texas S u preme Court opinion

. Our review of the SOAH Order is governed by t he “ substantial e vidence rule

. ” S ee Tex. Go v ’ t Code § 2001.174; Tex. L ab. C ode § 410.25 5(b)

. Under that standard, we m ust reverse o r remand
the case for furth er proceedings “ if s ubstantia l rights of the appel lant hav e b een prejudiced because the administrative findings, inferences, conclu s ion s, or decis ions are ” “ in v iolati on of a
constitut iona l or statutory provisio n, ” “ in excess of the agen cy ’ s statutory authority, ” “ made9 th rough unlawful proced ure, ” “ affected by o the r error of law, ” “ not reasonably supported by
subs t ant ia l evidenc e considering the r eliable and pro b a tive e viden ce in the re cord as a w hole , ” or

“ arbitrary or capricious or char acterized by a buse of d iscretion or clearly unwarranted exercise of
discreti on. ” Tex. Gov ’ t Code § 2001.174 (2)

. When appl yi n g the substant ial evidence rule, “ a court may not sub s titu te its judgment for the judgment of the state agency on the weight of the

ev idence on questi ons committed to agency discretion

. ” Id. § 2001.174. “ T he true tes t is not whether the agency reached the correct c o nc lusion, but w hether some reason able bas i s exis ts in

t he record for the actio n t aken by the agency. ” Maver ick C ou nt y , 642 S.W.3d at 544 (quo ting
Texas Health Facilities Comm ’ n v. Ch arter Med.

– D all., Inc. , 6 65 S.W .2d 446, 45 2 (Tex. 1984)).

Complete Medical Bill We begin with the Carri er ’ s se c ond a p p ella te issue

. T he Carr ier argue s that the
Provider ’s September 2009 bill , w hic h was the subject of the SOAH Order , did not quali fy as a “complete medical bill ” because it had an in correct servic e code. Thus, according to the Carrier,
the P rovider forfe i t ed t he right to re imbursement on that c laim because it did not submit a

“ com ple te medical bill ”

— i.e., the “ Corrected Bill ”

— until af ter the 95

- day deadline

. S ee Tex.
Lab

. Code § 408.027 (a) ( providing that prov ider ’ s failure to timely submit claim f o r pa ym ent

w ith in 95 days after date of health care ser vices constitutes forfeiture of provider ’ s right to
reimbursement )

. The Division rules define “ [ c ] omplete medic al bill ” as :
A medical bill that contains all requ ir ed fields as set forth i n t he billin g instr uc tio ns for the appr opriate form speci fied in § 133.10 of this chapter (relating t o Required Billing Forms/Formats), or as specified for electronic medical bill s i n § 133.500 of this chapter (relating to Elect ro ni c Formats for Electronic Me dical Bil l Proce ss ing

.10 28 Tex. A d min

. Code § 133.2(2) (Definitions)

. In the SOAH Order, the ALJ m ad e the following
relevant findings of fact and conclusion of law : “ The initi al bill, with all fields completed, was
received by C arrier within 95 days from the date o f serv ic e but contained a procedure coding

e rror ” ; “ The initial bill was complete ” ; and “T he medical bill Provider sent on September 30, 2009 , was a complete medical bil l as defined by 28 Texas Administrative Code § 133.2.” In challengi ng the SOAH Ord er on a ppeal , t he C arrier doe s not argue that any

“ required fields ” in the Provider’ s med ic al bill w ere left blank. Instead, the Carrier limits its

c hallen ge to argui ng that “ [a] bill with incorrect coding or charge a mo unts is not complete ”
becau se the Di v ision ’s Med ical Contested Case Hearing Decis ion Manual

- Medical Fee Disputes (Decision Ma nu al) “ states that to be entitled to payment, a medical bill with even one cod ing error is not a complete bill, and must be corre ct ed within th e 95

- day deadli ne. ” ( Ca p italization removed.) In th e SOAH proceedin g, t he Carrier submitted excerpts from the D ec ision Manual as

an exhibit , which state, as relevant here:

Complete Bill Re qui red The bill must be complete, with any correcti on s submitted during the 95 -d ay period. M4 -08-3413-01 . Th ere is n o provi sion allo wing for the resubmission of an incomp lete o r improper ly submitted bill after the 95 -day period. M4 -09-1662-01 . HCP sha l l i nclude correct billing codes from the applicabl e Divis ion fee guidelines in e ffect on t he date or dates of service when submitting medical bills. See Rule 133.20(c). Incompl et e Bill – Incorrectly Coded MFDR found that HCP did not submit a timely requ e st for reimbursement to IC. Although the first bi ll for $68.25 was submitted within 95 d a ys fro m the date of service, it was incorrec tl y coded. Approximately six months after t he date of service, HC P submitted a corrected bill which was properly coded. IC denied the bill, citing § 408.027, and the fact t hat the corrected bill was n ot submit t ed wit hin 9 5 days. HO affir med the decision of MFDR that HCP failed to timely request
r ei mbursement pursuant to § 408.027.11 M4 -08-3413-01.
The Carrier asserts th at th e decisions in the Decision Manual “are the ag en cy’s expression of its interpretation a nd app licat ion of its rules, wh ich the ALJ w as bound to follow and to which the

courts a re bound to defer.” 5 We need not decide, however, whether the September 2009 original bill
constituted a “complete medical bill ,” no twithst anding any coding errors
. Even if t he ALJ erred
in conclu d ing that the origina l bill was complete, the conclusion would n ot have prejudiced the
Carrier ’s substantial rig hts as explained below, and therefore we are no t aut horized to reverse or
remand the ALJ ’s decision on this ground. See Tex. Gov’t Code § 2001.174(2).
A provider ’s delivery of a “complete med i cal bill” triggers a c arrier ’s obligatio n to take final action within a certain time p eriod. See 28 Tex. Admin. Cod e § 133.240(a) (Me dical Payments and De nials) ( “An in s uran ce ca rr ier shall take fi na l act ion after conducting bill review on a complete medical bill, or determine to au d it the medical bill . . . not later than the 45th day after the date the insura nce carri er received a complete medical b ill

. ”). But here i t is undisput ed that the Ca rri er took final action on the September 2009 bill and on the March 2010 request for reconsiderat ion by making a $2,354.75 payment a nd denying the rest of the charges

. See id. §§ 133.2(4) ( “Final action on a me dic al bill

— (A) send i ng a payme n t that makes t he t ot al
reimburse ment for that bill a fair and reasonable reimbursement .

. . and/or (B) denying a charge
on the medical bill. ” (emphasi s added) ) , .250(f) (Reconsideration for Payment of Medical Bills ) (“ The insu ra nce carrier sha l l take final a ction on a rec onsid er ation request within 21 days of

re ceiving the request for reconsideration. The insurance carrier shall provide an explanation of

5 The Carrier relies entirely on t hese excerpts and does not re ly upon sta tutory or rule language to arg ue that t he P rovider’s bill was not a “comple te medical bill.”12 benefits for all items in cluded in a reconsideration request in the form an d f ormat prescr i bed by
the Div ision. ” )

. And i t i s the Carrier ’s “final action ” on a medical bill , regar dless of whether th e
bill is a “ complete medical bill , ” that trigge rs the Pr ov ider ’s right to request re consideration and
MF DR

. S ee id. § § 133. 240(h) ( “I f d issat i sfie d with the i nsu rance carr i er ’s final a ction, t he health care provider may reques t re consideration of the bill .

. . . ”), (i) ( “If dissatisfied with the
reconsider ati on outcome, the health care provider may request medical dispute resolution

. . . . ”),

. 2 50 ( a) ( “ If the he alth care p rovider i s d issatisf ied with the insurance carrier ’ s final action on a medical bill, the health care provider may request th at t he insuranc e carrier reconsider its action. ” (em ph a sis added) ) , ( h ) ( “ If the heal th car e pro vider is d i ssatisfied wit h the insur ance ca rri er ’ s final action on a medical bill after reconsideration , the health care provider may request medical dispute resolution in acc or danc e with § 133.305

. . . . ” (emphas i s added) ) , .305 (a) (3)( A ), (4) (A) ( MD R

— Gen eral ) (def i ning “ Medic al dispute res olution ” t o include “ process for r esolution o f ”

“ a medical fee dispute ” and defining “ Medical fee dispute ” to include “ a health care provid er (provider)

. . . dispute of an insur a nce carrier (carrier) reduction or d en ial of a medi c al bil l ” (e mph a sis added ) ). 6
If t he medic al bill is not complete, the Division ’s rules provide a mechanism by which the Carrier may satisfy its obligations w ith ou t taking final action. See id. § 133.200 ( a) , ( c )

6 A t the time of th e Provider’s b il ling of the Carrier for the p rovide d health care ser vices , Chapter 133 of Title 28 of t he Texas Administrative Code con tain ed m ultiple referenc es to a medica l bill be ing complete or incomplete

. See 28 Tex. Admin. Code §§ 133.2(2 ) (Definitions), .20(f), (g ) (Medical Bill Submission by Healt h Care Provider), .200(a), (c) (Insurance Car rier Re ceipt of Medical Bills from H eal th C are Pro viders), .230 (b)(1), (4) (I nsuranc e Carr ier Audit of a Medical B ill), .2 40(a), (j), (k) (Medical Pa yments and Denials), .250 (e ) (Reconsideration for Paymen t of M edical Bills), .5 01(b)(2), (3), (c)(3), (4) ( Electro nic Medical Bill Processing)

. T hese ref erences primaril y concerned th e trigg e r ing of deadline obligation s to provi de notice or final action , and none bestow rights su ch that the ALJ ’ s conclusion th at the bill was c omplet e would have prejudiced the Carrier ’ s substant ial rig hts were it er roneous
.13 (Insurance Carrier Recei pt of Medical B i lls from He alt h Care Prov iders) (re qu iring ca rriers to take certain action upon receipt of “a medical bill that is not complete as defined in § 133.2” and providing t hat “[t]he proper ret urn of an incomplete medical bill in accordance with th is section
fu l fills the i nsu rance carri er ’s ob lig at ions wit h regard to the incomplete bill ” ). Here, however,
the Carrier admits that it did not foll ow Rule 133.200 regarding t he proper re spon se to an incomplete medical bill and instead took fi nal action on receiving t h e original med ical b ill

. 7

In sum, a provider has the right under the relevant rules to se ek reconsidera t ion
and MFDR when it is dissatisf i ed with a carrier ’ s “ final action on a medical bill

. ” A nd th e rul es do not require that the medical bil l be com p l ete for a c ar rier to take “ final action ” on the medical
bill

. Because it is undisputed that (1) the Carrier took final action on both the September 2009
medical bill a n d the March 2010 r e q u e s t f o r r e c o n s i d e r a t i o n , ( 2 ) the Provider request ed MFDR
based o n diss atisfac ti on with the Carrier ’ s fina l action s , and ( 3 ) the September 2009 medical bill
and the March 20 10 request for re co nsideration were timely filed, we conclude that t h e Provider
did not forfe it it s right to reimbursement for failure “ to timel y sub m it a claim fo r payment , ” regardless of whether the September 2009 medical bill was “ complete

. ” S ee Tex. Lab

. Code § 408.02 7 ( a)

. 8 Accordingly, w e overrule the Carrier ’ s second issue

.

7 In its appe llate rep ly brief, t he Carrier notes, “ The [P ro vider ] re sponds that upon recei pt of the original b ill, the Ca rrier did not follow the rules r eg arding the proper response t o an in complete bill

. That is true. ”

8 Moreover, as w e h ave prev iously noted, Se ction 408. 027(a) “ applie s to ‘ claim[s] for p ayment ’ ” whil e the rules “ apply to ‘ medical b ill[s]. ’ ” Facility Ins. Co . v. Vista Hosp. of Dall

. , N o. 03

- 18

- 00663

- CV, 2019 WL 6 603168, at *6 (Tex. Ap p.

— Austin Dec. 5, 2019, pet. denied ) ( mem. op. ). The Carrier does not d iscuss the dis tinction between the terms “ cl aim ” and “ med ical bill ” such that t he former would require a “ com plete m edical bill ” to c onstitute a “ claim. ”14 Corrected Bill
In its third issue , t he Carrier argues that “[ a ] s def i ned by Medi ca re and [ the
D ivision] rules and [ Division ] authority interpreting those rules, the ‘Corrected ’ bill was a

ne w bill

. ” Thus, t he Carrier argues , be cause the Provide r submitt ed a “ Correct ed Bill ” on April 1 9, 2010

— a bill den ied by the Carrier a s untimely

— “ [ a ] ny fee d i spute had to be d irected
to the ‘ Corrected ’ bill

. ” More over, the Carrier argues, because the “ C or rected Bill ” is a new bill,

“ [t]he [Provider] was not entitled to [MFDR] in the absen ce of a Req ue st for Reconside ration, ”
and it is u n dispu ted th a t the [ Pro vider] d id not req uest reconsideration of the C arrier ’ s denial of
the “ Corrected Bill. ”
Howev er , as we have noted ab ove , the Carrier took “ final action ” on both the September 2009 medical bil l an d the March 20 10 request for re con s ideration , a n d under t he
D ivision rules th e Provider is entit led to request MFDR if dissatisfied with the Carrier ’ s “ fi na l
action ” on a medical bill and request for reconsideration

. See 28 Tex. Admin . Code §§ 133. 240 (h ), (i),

. 250(h), .337(b)(1)

. T he Ca r rier argues t h at “ ther e is no statu te, rul e or mechanism allowing the ALJ to resurrect t he original bill and wis h away th e new corrected o ne. ”
The Provider responds that the “ rules do not state that an untime ly claim e xtinguishes a pr ior, timely

- filed cl a im.”
Al t h o ugh the Carrier may be correct that the “ Corrected Bill ” is a “ new bill, ” the
Carrier does not cite autho ri ty for the proposition that a provider ’ s untim ely corrected bill filed
after a carrier has taken “ final actio n ” on a n original bill an d request fo r r econside ration prevents

a prov ider f rom seeking MFDR of the original bil l

. 9 See Maverick County , 642 S.W.3d at 547

9 Rule 133.2 0 st ates that providers “ s hall not resubmit medical bi lls to i nsurance carrier s after the insuranc e car rier has taken final action o n a compl ete medical bill and pr ov i ded an15 (noting that agency finding and conclusions “ are presumed to be su pported by substantial evidence, and the burden is on the c o ntest ant to p rove otherwise ” (quoting Chart e r Med.

– Dall.
665 S.W.2d at 453)). Thus, even though the Provi d er would likely not be entitle d to MFDR o f
the Carrier ’ s denial of the “ Corrected Bil l ” as there was no request for reconsideration of that bill, th e Carri er ha s not met its appellate burden to demonstrate th at the P rovider was not entitled
to M FDR of the Ca rrier ’ s denial of the original bill and request for reconsideration

. 10 W e

overr ule the Carrier ’ s third appellate i ssue.

exp lanation of benefits except in accordance wi th § 133.25 0 ” but “ may correct and resu bmit as a new bill an incomplete bill that has bee n return ed by the insura nce carrie r. ” See 2 8 Tex . Admin. Code § 133.20(f) , (g ) (Medica l Bi ll Submission by Healt h Care Pro vider)

. The Carrier cites this rule to su pp ort its denial of the “ Corrected B i ll ” but does not explain h ow it obviates the Provid er ’ s right to MFDR of the C arrier ’ s final actio n on the original bill and request for reconsideration

. I n its br i efing on rema nd, the Carrier argues that “[b] y rule, the corrected bill [Bill Type 137] n ot only withdrew and replaced the o rigi nal bill, its s ubm issi on c onstitutes an ad mission and decl aration t hat the original bill was n ot a ‘complete ’ bill [and] that th e correct ed b ill const ituted a ‘new ’ bill (re starting all t he regul atory deadline s)

. ” Th e Carrier does not explain how “ [b] y ru le ” t he untimel y c orre cted bill withdrew t he original bill

. At the SOAH hearing, Bla duel l te s tified that “ bill type 137 ” can be “ inter pr eted as the replacement bi ll for the original submission , ” and with its closin g argumen t before SOAH, the Carrier s ubmi tted an excerpt fr om

“ UB

- 0 4 /CMS

- 1450 Refer ence Material ” o f a chart “ Type of Bill Codes ” that notes code 137 is

“ H ospital ” “ Outpatie nt ” “ Repl acem ent of Prior Claim. ” However, t he cover letter al so descri bed the “ Cor rected Bill ” a s a “2nd level of Reconsiderat ion ” and on th e bill w as handwri tten “ 2nd Level of Appeal

. ” Gi ven the subst antial evidence st andard of review, we conclude that there wa s a reasonable basis for t he ALJ to conclude that th e orig inal bill was not withdrawn suc h that MFDR of the original bi ll followin g t he Carri er ’ s “ final acti on ” w ould be imprope r
.
10 The Carrier also relies on the excerpts f rom the Decision Man ual and i ts c ited decisions. Howev er, in tho s e decisions, th e parties see king MFDR sought to rely on t he ir corrected bill s, not the origin al bills, t o establish thei r entitlement to reimbursem ent. Here, on the other h and, as the Provider n otes, “ The [Division] did not consider [the Provider ’ s] c orrected cl aim , nor did th e ALJ. ”16 A ETNA Contract
The Carri e r ’ s fi rs t i ss ue sta tes : “ Did the ALJ have t he legal and factual gro unds

to (impliedly ) avoid the Aetna

- Pat ie nts Medical Center network fee arrangement that both Hospital and Carrier ackno wledged and invoked in the billing, payment and dispute resoluti on
p rocess? ” F or the relevan t time here , the Te xas Labor Code permitted provider s and carriers to

c on tract for terms and medical fe e schedules in what were called informal or vol u ntary netwo rks.
See Tex. Lab

. Code § 413

. 011( d

- 1)

– ( d

- 6). The Carrier asserts t hat the Aet na C ontract provides
for an “ agre ed rate o f reimbursement ” of “ 92% of th e ‘ Allowable ’ as defined in the contract. ”
T he Division rules , however, provid e that “ [t]he insurance carrier is not entitled to

p a y a health ca re provider at a contrac t ed fee nego ti ated by an informal network or vo luntary
network if: (1) the notice to th e health care provider does not meet the requirements of Labor Code § 413.011 a nd this section. ” 28 Tex. Admin. Code § 133.4( g) (Written Notif ic ation to
Health Care Pro v iders of Co nt ractual Agreements for Informal a nd Voluntary Networks)

. Rule
133.4 re qu ires that “ [e]ach informal network or voluntary network, or the insu rance carri er, or
the insurance carrier ’ s authorized agent , a s appropriate , sh all notify each affecte d health car e provider of any person that is gi ven access to the informal or voluntary n etw ork ’ s fee arrangement with that health care provider with in the time and man ner provided by this section. ”
Id. § 133.4(c)

. T he notice “ may b e provided through a we b site link , ” b ut “ only if the website: ( A) con tains the informa tion stated in paragra ph s (1), (2)(A) and (2)(B) of this subsection; and (B) is updated at least monthl y with current and correct information. ” Id. § 13 3.4( d)(4).
Pa ra graph ( 2 ) requires tha t the body of t he notice must include : ( A ) “ nam e, ph ysical address, and telephone number of any person that is given access to the informal or voluntary network ’ s
fee ar rangement ” ; and (B) “ the start date and any end date during which any person has been17 g i ven access to the healt h care provider ’ s contr acted fee arrangement. ” Id. § 133.4(d)(2). Rule
133.4 al so requires that “ [t]he informa l or voluntary n etw ork, in surance c arrier, or the insurance
carrier ’ s authorized agent, as appropriate, shall document t h e informati on provided in the notice as requir ed by subsection (d) of this section, the method of delive ry, t o whom the notice was delivered, and the d ate of delivery. ” Id. § 133.4(e). Finally, Rule 133.4 provides that “ [f]ailure to provide documentatio n upon the r eq uest of th e Division or failure t o provide notice that complies with the requirements of La bor Code § 413.011 and this section creates a r ebu ttable

presump ti on .
. . in a medical fee dispute that the heal th care provide r did not receive the

n o tification. ” Id.
In ad dition to requesting a copy of the Aetna C ontract , the D ivision requested
from the Carrier “ Document ation t o support th at [the Pr ovider] was notified in accordance with
2 8 Tex. Admin. Code § 133.4. ” However, the app ellate record d oes not i nc lu de documentation showing “ the inf ormation provided in the notice as require d by subsection (d) of this section , the
method of del ivery, to wh om the notice was delivered , and the date of delivery. ” See id. § 133.4(e). Instead, the cover lett e r respo nd i n g to the request merely state s, “ In response to the [Division] ’ s inquiry rega rding compliance with 28 Tex. Admin. Code 133.4 , [the Provider] ha s been made aware of their participation status with AWCA since April 15, 2008. ” Accordingly,
the M F D R offic er f ou nd that “ [ r] eview of the submitte d information fi n ds that the
documen tation does not support notification to the healthcar e provi de r in the t ime and manner required ” and concluded that “ pursuant to § 133.4(g), the insurance carrier is not ent i tled to p ay

t he health care provider at a cont racted f e e. ” And in the S OA H Order, the A LJ concluded that
the “ Carrier f ailed to carry its burden that [th e Pr ovider ] i s not entitled to $20.495.78 in
additional reimbursement. ”18 Because the Texas Suprem e Cou rt has d et ermi ne d that the Carrier had the bu rden of proof in the conteste d case hearing before SOAH , see Patients Med. Ctr. , 623 S.W .3d at 343, our inq uir y on this issue under the substantial evidence rule is whether “ som e reasonable basis
exists in th e r ecord , ” see Ma verick County , 642 S.W. 3 d at 54 4 (quoting Charter Med.

– Dall. , 665 S.W.2d at 452) , for the ALJ to impliedly conclude that the Carrier did not meet its burden to
demonst rate th at any alleged notic e provided to the Provider sat isfied Rule 133 .4 such tha t the Aetna Contract applied

. 11
The Carrie r argues that the rules “ only required the contract be supplied to the [ Division ] , and that Aetna provide docu mentation of the website where the [ Pro v i d er ] could have
revie wed to determine if th is Car rie r had ac cess t o the network contract , ” and a ss e rts that “ Aetna
documented the time and manner of its notice relevant to this [Provi der] and this outpatient

encounter. ” But this ass ertion does not acc ura tely conve y what the rules require

. A lthough the

rec ord incl udes t he Aetna C ontract , which includes a website link, 12 the record does not

11 The Carrier argues that the Provi der “ offered no evidence th e c ontract did not apply or t hat payer access informat ion had not been available to it. ” Bu t as determined by the Texas Su preme Court, the Carrier, not the Pr ovider, ha d the burden of proof in t he con tested case hearing. See Patients Med. Ctr. v. Facilit y I ns. Corp

. , 623 S.W.3d 33 6, 343 (Tex. 2021)

. In arg uing that the ALJ erred in placing the burden of p roof o n the Carrier, t he Carrier appears to concede that the Provider did not need to off er proof if the Carrier bore the burden : “ The ALJ ’ s presumpti v e a doption of everything th e [MFDR officer] found, and the r eversal of the burden of p roof to th e Carrier to disprove every findin g and conclusion of the [MFDR officer] , relieved the [Provider] of doing or saying anything related to this avoidance of its c ont ract

— a c laim that it had never made. The [Provider ] was relieved o f even havi ng to claim at the [ conte st ed case hearing] it did not have the required notice, even though all its actions and wo rds said otherwise. ”

12 The Aetna C ontract states, “ Author ize d Agent; Contractual Fee Arrangement. Participating Provider unde rs tands and a grees that Comp any is the authorized agent for a number of workers’ compensation carriers, inclu ding The Hartford ( and its affiliates, including Specialty Risk Servic es ), Ame ris ure, Uti ca National Insu rance Company (and any other carriers list ed at http:// awca.aetna.com) , for the p urposes of developing a network o f workers’ compensation19 demonstrate that the Carr ier wa s listed on the website link as having been given access to the
network ’ s f ee arrang eme n t

. See 28 Tex. Admin. Code § 133.4(d) (2), (4) ( p rov iding th at not ice may be provided t hr ough websi te link but “ only if ” website contains “ name, physical address,
and t elephone number of any person that is given access to th e informal or volun tary network ’ s fee arrangement ” and “ the start date and any en d d ate dur i n g whi ch any person has been given

acce ss ” ). G iven the Carrier ’ s failure to pr ovide documentation that it was required to keep in response to the Division ’ s request as require d under Rule 133.4, th e presumption is that the
Provider did not rece ive notice that m et the requiremen ts of Rule 133.4

. See id. § 133.4(e).
The Carrier a sserts that even if it failed t o provide the necessary documentation,

“ t hat would only have created a re buttable presum pt ion the [Provider] did not receive
notificati on of the t ime an d manner of that information. ” The Carrier argues , “ T he Carrier ’ s
witnes s testified the Car rier had acc ess to and had applied the Aetna co ntract, and that the [Provider] was clearly aware of it

. ” But even if the Provider was “ aware ” of t he Aetna Co ntract , the Carrier is only entitled to t he contrac ted fee if the notice to the Provider satisfied Rule 133.4.
See id. § 133.4( g)

. An d t he Carrie r does not identify any evidence that the provided notice

— i.e.,
the website lin k in th e Aetna Cont rac t

— satisf ied the requirement of co ntaining the “ na me, physical address, and telephone numb er of any person th at is given access to the informal or voluntary network ’ s fee arrangement with a he alth care provide r
. ” See id

. § 133.4(d) (2), (4)

. 13 Accordingl y, we overr ule the Carrier ’ s first a ppellate issue.

providers and negotiating fee ar rangements with such providers on the carrier’s beh al f. Th e c ontractu al fee arrangeme nt is between the Participat ing Provider a nd AWCA.”

13 The Carrier als o argues , “ T he [Provider] had not disputed a pplication of the Aetna network contr act, and in any eve nt, waived any such claim.” But the MFDR concerned the Car rie r ’ s deni al of the Provid er ’ s billing statement that did not apply th e contractual rate, and20 R e imbursement Calculatio n
In the Carri er ’ s final appellat e issue, it challenges the MFDR officer ’ s
reimbursement cal culations and the ALJ ’ s conclusion that t he Carrier did not meet its burden in
the con tes ted case hearing before SOAH to show that the Pro vider is not entitled to t h e
reimbursem ent amoun t. The Carrier argues that “ [w]h ile the re are numerous errors [in the
reimbursement calcula tions], the fun damental and most egregious error is the failure to ex clude
from the outlier cal culation s all the cha rges for implants and other item s that were associated with surgical se rvices for which the Carrier is not liable ” and that “ the Carrier has no liability for items ancillary to services that were not prea uth orize d. ” As we no ted in our initial decision:

As outlined in great detail in Carrier ’ s brief, a critical component of t he formula used in the [MFDR officer ] ’ s calcu lation of the reimbursement amount is the so

called “ sum of all packaged costs, ” which t he [MFDR o f ficer]

— w ithout any explanation

— declared t o be $20,649.75. This “ pa ck a ged cost s ” amount was determin ative in the [MFDR officer ’ s] conc lusion that Provider was entitled to so

called “ outlier payments, ” which comprised the largest component of the to tal
r ei m bu rsemen t award ed.
Facility Ins. , 574 S.W .3d at 444 n.8

. Amon g other ch allenged calculation concerns, the Carri er specif ically argues , “ T h e ALJ er red by including the charges and costs for a spinal cord stimulator/generator (C182 0) in an y calcu la t ions, in cluding outlier calculations. ”
be fore SOAH, the Provider argued: “ The eviden ce presented does not support that th e required notifica t ion of the contracted fee arrangement claimed by t he carri er was time ly and appropria tely provided to the health care provider a s required by 28 Texas Admin istrative C ode § 133.4

. Therefore, pursuant to § 133.4(g), the insurance carrier is not entitled to p ay the health care provider at a contracted fee. ” A t the SOA H heari ng, the Carrier ’ s counsel asked the Provide r’s chief financ ia l officer Hanson , “ [D] o you h ave any re a son to believe that contract

— the Aetna contract in evidence didn’t app ly,” to which Hanso n responded , “No.” But on c ross exa mination, the P rovi der ’ s couns el asked , “ Do you ha ve any reason to believ e the contract did ap ply? Do you know whether the contra c t applied one way or the other? ” Hanson responded,

“ No. Because, aga in, I wasn ’ t here w hen they registered the patient, so I don ’ t know wh at t he
c ircu mst ance was. ” Hanson a lso testified that he w as not aware of any n otification from the Carri er that “ i t was a participant in the contrac t. ”21 In its o rigi nal bill, the Provider b illed the Carrier , as relevant for this i ssue, the following four charges , among other charges :

• “ generator neuro rechg ba , ” c ode C182 0, fo r $ 47 , 250 , 14

• “ revise/remove neurore c ei , ” c ode 6 36 88 , fo r $2,558.75 ,

• “ revise /remove neuroe lect , ” c ode 63660, for $2,558.75, and

• “ anal yze neurostim, compl , ” c ode 95972, for $2,558.7 5.

(Capitalization remo ved .) During the SOAH proceedings, t he Carrier submitted excerpts from
the American Med i cal Associa tion ’ s Curre nt P rocedura l Terminolo gy (2004 ) (AMA ’ s CPT) , which described some of the se CPT Cod es. AMA ’ s CPT explain s that “ Codes 63650

- 63688 apply to both simple and complex neurostimulators ” ; that “ [f]or insertion of neurostimulator

pu lse ge n era tor, see 61885, 6368 5, 6 3688, 64590 , ” “ [f]or r evisi on or removal of neurostimulator pulse generator or receiver, see 61888, 63688, 64595, ” and “ [ f] or init ial or subsequent electronic analysis and programming of neurostimul ator pulse generators, see cod e s 9 597 0

- 959 75 ” ; and
tha t “ C odes 95972 and 95973 descri be intra operative (at initial insertion/revision) or subsequent
ele ctronic analysis of an impl anted complex brain, spinal cord or peripheral (except cranial nerve) neurostimulator pulse generator syste m , w ith prog ramming. ” A MA ’ s CPT defines c ode
63660 as “ Revision or removal of s pinal neurostimulator elect rode p ercutaneous array(s) or plate/paddle (s) ” ; co de 63688 as “ Revision or removal of implanted spinal neu rostimulator pulse generator or receiver ” ; a nd code 959 72 as “ compl ex b rain, spinal cord or periph eral (except cranial nerve) neurostimulator pul se ge nerator/transmitter, with intraoperative o r subsequent programming, first hour. ” The excerpts from the AMA ’ s CPT did not include a definition of

14 In its corrected bill, howev er, the Provider dropped this charge.22 c ode C1 820, but Bladuell te stified at the SO AH h earing tha t C1820 is “ a charge for an implant,
which would hav e been the generator

. ”
In determining what rul e to apply to calculat e the reimbursement amount due , the
M FDR officer found:

This dispute rel ates t o f acility services pe r formed in an outpatient hos pital setting with reimbursement subject to the pro visions of 28 Texas Administrative Code § 134. 40 3 , which requires that the reimbursement calculation used for establishing the maximum allowable reim bursem ent (MAR) s hall be the Medicare facility specific amount , including outlier payment amounts, determin ed by applying the mos t recently adopted and e ffective Medicare Outpatient Prospective Payment System (OPPS) reimbursement formula and factors as pu b lished
an nually i n the Feder a l Register with the application o f minimal modifications as set forth in the r ule. Per § 134.40 3 (f)(1), the sum of the Medi care Facility specific reimbursement amount and any applicable outlier payment amount shall be multipli ed by 200 percent , unless a f acility or s ur gic al implant provi der requests separate reimbursement of implan tables. Review of the submitted documentation finds that sep arate reimbursement for implantables was not request ed.

. . . . Under the [ OPPS ] , each b illed ser vice is assigned an Ambulatory Payment Classification (APC) based on the procedure code used, the supporting documentation and the other service s that appear on the bill. A payment rate is established for each APC. .

. . Payment for ancillary a nd sup por tive ite ms and
serv i ces, including services that are billed without procedure codes, is packaged i nto payment for the primary service

.

See 28 Te x. Admin. Code § 134. 403 (Hospital Facility Fee Guideline

— Outpatient ). The
Provid er d id not challenge the fi ndi ng that “ separate r e imbursement for implantables was not requested , ” and the Carrier does not chal lenge the application of Rule 134.403 , assumin g that the contractual fee arrangement does not app ly, which we have concluded above that it does not

. T he M FDR officer also found that the denial reason f o r code 6 3688 “is supported ” and denied23 reimbursement for th at coded billing item , which the Provide r has not chal lenged

. 15 A s to cod e C1820, however, the MFDR officer concluded that “ [p] er Medicare p olicy , pa yme nt for t he

sur gical impla ntable supply item is includ ed in the reimburs ement for surgical services that had
been preauthorized by the insurance carrier ” ; that “ [r]eview of the submitted information finds no documentation to sup port [the Carrier ’ s] denia l r eason ” ; and that “ co de C1 820 will therefore
be review ed per applicable Division rules and fee guidelines , ” pre sumably by being pack aged into pay ment for the primary services.
The Carrier argues, however, that “[t]here is no preauthorized or billed sur gi c al

proce dure to whic h C 18 20 could attach ” because the two primary s urg i cal service s relied on by
the MFD R officer

— co des 63 660 and 95972

— “did not require a n ew generator

. ” 16 A lthough “removal of the already implanted generator (CPT 63688) was billed, ” th e C arrier a rgues that i t
cannot be a sur gical procedure to which C1820 could attach because it was “fo und not to be preauthorized by the [MFDR offi cer]

— a finding unchallenged by the [Provider]. ” And t he
Carrier notes that “ implantation of a new generator (CP T 63685) was not pre authorized

or billed. ”
Other th an to state that this “ sur gical implantable supply item ” was “ included in
the reimbursement for surgical services that had been preauthorized by the insurance carrier, ” the

15 As to code 6368 8, t he MFDR office r ’ s finding sta tes, “ the car rie r is l iable for all
reaso nable and necessary medical c osts relating to the health care listed in subsection (p) only in the case of an emergency of ‘ preauthorization of any health car e listed in subsection (p) .

. . that
was appr oved pr ior to provid ing the healt h care. ’ §134.600( p)( 2) states that the non

- eme rgency health care requirin g preauthorization inclu des ‘ outpatient surgical or ambulatory surgical services. ’ No documentation was found to support a medical emergency, n or w as any do c umentation found to su pport that this surg ical service had been preaut horized. ”

16 Th e MFDR offic er calculated a reimbursement amount for one other primary service, code 62273 , which AMA ’ s CPT descr ibes as “ Injection, e pidu ral, of blood or c lot patch

. ” B ecause this c ode is not relevant to the bi lling of code C1820 , we do not discuss it here.24 M FD R of ficer does not expl a in to which preauthoriz ed surgical service the C1820 imp lant

app lied

. A t the SOAH hearing, the following exchange occu rred b etween the Carrier ’s co unsel
and B laduell:

Q Okay. No w, I ’ d refer you to finding and decision, sectio n 4

— or fi nding number 4 in the [MFDR o f ficer ’ s] fi ndi ngs and deci sion. A nd it refer s to CPT C

- 1820. Do you know what that is?
A That ’ s a

— I think that ’ s a charge for an im plant, which would have been the generat or. Q And what was the cha rge for that gen erator?
A It appears to be $4 7,250. Q Okay . And the

— in respect to an i mplantable such as that generator, do the rules specif ically require the provid er to ask for preauth orization to purchase the generator?
A I f it ’ s an implant for surgery that indicat es that ’ s going to be impla nte d into t h e patient, it would not require pr eauth, beca use once we preauthorize the service, w hi ch would require an implant , the implant falls w ithin that. Q Okay. So in order for someone to be entitled to reimbursement for t he implant

— in this case, th e g enerator

— they had to have requested and rec eived preau thorization for the procedure t hat required the implantation?
A Tha t is correct. Q In t his case, did the hospital

— or did the doctor ever request preauthorization for the CPT code related to the imp lan tation o f a new gene rator?
A They did not. Q And if they didn ’ t ask for a preautho rization, I assume it was never given ; is that correct?
A That ’ s correct. Q Did the hos pital bill for the procedure “ insertion of a new gen erator ” ? And for the recor d, that wou l d be CPT co de 63685, based on

—25 A They didn ’ t . They did not. Q An d so your

— your testimony is they did not requ est preauthorization for, or bill for , the procedure where they were implanting the generator?
A That i s correct.

The exchange co nti nued:

Q . . . And y ou agree t hat there was no s peci fi c award of the C

- 1820, correct?
A Correct Q But did the Division , in their calculations for outlier payments, include the charges for and cost of the neurostimulator?
A That ’ s what it appears that th ey ’ re st a ting on the ir decision. Q Okay

. So it cert ainly had an effect on the outlier payments. It increased them subs tantially; did it not ?
A Yes.

A s noted by Bladuell, t he MFDR offi cer app ears to have incl uded the $ 47 , 250 in calculating the
outl ier payment when the MF DR officer concluded that “ [t] he s um of all packaged costs is $20 , 649.75 , ” although i t is unclear exactly how s h e calculated this number. In its written closing argument before SOAH, the Carrier explained:

Based upon the Cost

- to

- Cha rge Ratio ( CCR) used in the Decision (0.2379) and reversi ng that calculation, the [MFDR office r] would have started with total packaged charges of $ 86,800.13 [i.e., $20,649.75 ÷ 0.2379]. This total is only $7,840.35 shy of the total charges of $94,640.48. T he $7,74 0.35 the [MF DR officer] carved out corresponds to the sum of the charges for three surgical services on the bill, ($2,558.75 x 3) + $164. 00 = $7,840.25. . . . Improperly using the original bill which had been replaced, the [MFDR officer] carve d o ut the b illing for 6 3660, 95972 and 62273. The $164.0 0 comes from HCPCS code J2405 for a s eparately payable Ondansetron injection. CPT 63688 wa s also on26 that bill, but the [MFDR officer] did recognize it as a non

- covered charge. It had been determine d n ot to be preauthoriz ed. These calculations are $0.10 o f f the [MFDR officer]’s. Note that d uring testimony Mr. Bladuell had not determined exactl y how the [MFDR officer] had come to her $20,649.75 number. The above mathematical explanation is as close as we can come.
Thus, according to this explanation, the $47,250 would have been utilized in calculating the total packaged charges of $86,800.13 be fore apply ing the CCR. The Provider did not pr esent evidence or provide an a lternative explanation of how th e $20,649 .75 amount f or the “ sum of all packaged co sts ” was derived without utilizing the $47,250 amou nt that was billed for C182 0

. Nevertheless, the A LJ concluded that the “ Carrier failed to c a rry it s burden that Provider i s not entitled to $ 20,495.78 in addit i on al reimburse m ent. ” Based upon th e Carrier ’ s evidence and argument , we conclude that the Carrier met its appell ate burden to demonstrate that subs tantial evidence did not support the ALJ ’ s
conclusion that the Carrier failed to carry its burden reg arding t he calculati on of the amount of

a dditional rei mbursement due

. See Tex. Gov ’ t Code § 2001.174(2)

. Accordingly , we sustain the
Carrier ’ s fourth iss ue.
T he Carrier also challenged the calculated reimbursement amount based on other specified cod ed billing items , inclu d ing for codes 95972, 62273, C1778 , and C1883. But
b ecause we do not have the power to render the decision that the ALJ should have re ndered in
the SOA H Order, see id. ; Freightliner Corp. , 255 S.W.3d at 367 (“Although courts are

emp owe red to a ffirm, rever se, or remand agency decisions, we do not find a power in this type of

s ituation to render a decision that the agency should have rende red.”), we need not address the Carrier’s other challenges to the reimbursement calculations withi n t his issu e to reverse and remand the case for further p roceedings

. Our remand is limited to the Carrier ’ s fourth issue on27 appeal, and we leave it to the agency to decide how to conduct its review of the remanded issue. See Freightliner Corp. , 255 S.W.3 d a t 362 ( “ Alt hough courts may not be autho rized to dicta te
how an agency conducts its review of remanded issues or decides them, the express power to affirm in p art necessarily means that courts have some control over what issue s the agency can
reconsider on remand subject to the l imitations of judicial authori ty over agencies. ” ).

C ONCLUSI O N
For thes e r easo ns, w e (1) reverse the SOAH Order in part insofar as i t concludes
that “ Carrier failed to carry its burden that Provider is not entitled to $20,495 .78 in addi tional
reimburse ment ” and order s re imbursement in that amou nt , (2) affirm the SOAH Ord er in all other respects , and (3) remand the case to the Division for further proceedings consistent with this opinion

. See Tex. Gov ’ t Code § 2001.1 74 ( 2)

.

__ ___ ______ __ ______ _

____ _____ __ ___________ Melissa Goodw in , Justice
Before Justices Good win, Triana, and Kelly
Affirm ed in Part; Reversed and Remande d in Part on Remand
Filed: September 8, 2022