Geisinger Health System and Geisinger Clinic v. Bureau of Workers' Compensation Fee Review Hearing Office (SWIF)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Geisinger Health System and :
Geisinger Clinic, :
Petitioners :
:
v. : No. 1626 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 Peggy
Fuller (Claimant) from August 29, 2014, until her death on September 9, 2014.

1
This opinion was reassigned to the authoring judge on February 29, 2016.
 The Hearing Officer awarded Provider reimbursement for the
treatment and services rendered in its trauma center in the amount of 100% of its
usual and customary charges 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, a carnival ride operator, sustained serious
injuries when her hair became caught in machinery. The machinery dragged
Claimant to the ground and avulsed a large portion of her scalp. Lifeflight
transported Claimant to Provider’s facility. Provider called a Level I trauma alert.
On arrival at Provider’s emergency department on August 29, 2014, Claimant’s
physical examination revealed an exposed skull. There was one small point of
attachment behind the left ear. Claimant underwent emergency surgery for
revascularization and repair of the scalp avulsion. On September 9, 2014,
Claimant developed a necrotizing soft tissue infection. As a result, she developed
septic shock. Claimant underwent debridement of the necrotic tissue. Claimant
continued to worsen and was terminally extubated that evening. There is no
dispute that the treatment was at a Level 1 trauma center for life threatening or
urgent injuries.

2
 Provider then submitted seven HCFA-1500 (claim) forms to Insurer
seeking payment for its physicians’ treatment of Claimant. Provider’s claim forms
include itemized billing charges for treatment rendered to Claimant. Provider
sought full payment for services rendered in a Level I trauma center for its actual
charges.

Insurer responded with 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.)

Provider then filed 30 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:

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 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

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 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 29, 2014, through
September 9, 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
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
 standards of the American Burn Association, or if basic
or advance life support services, as defined and licensed
under the “Emergency Medical Services Act,” are
provided, the amount of payment shall be the usual and
customary charge.

77 P.S. §531(10) (emphasis added.)

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

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 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 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.

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 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Geisinger Health System and :
Geisinger Clinic, :
Petitioners :
:
v. : No. 1626 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