State of North Carolina s47

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF JOHNSTON 03 DHR 0834

Pamela Powell ) Petitioner ) ) vs. ) DECISION ) DMA Outpatient Therapy ) Respondent )

On September 9, 2003, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Fayetteville, North Carolina. By Order dated September 16, 2003, the undersigned ruled that Respondent: (1) properly determined that physical therapy for Petitioner at the current Medicaid authorization was not medically necessary, and (2) properly reduced Medicaid’s authorization for physical therapy to one time per month. Pursuant to the September 16, 2003 Order, on October 1, 2003, Respondent filed a proposed Decision.

APPEARANCES

For Petitioner: James Holt Caretaker of Petitioner

For Respondent: Emery E. Milliken Assistant Attorney General NC Dept of Justice PO Box 629 Raleigh, NC 27602

Whether Respondent Division of Medical Assistance’s (“DMA”) decision to reduce the Medicaid reimbursement to Petitioner for physical therapy sessions from two times monthly, to one time monthly was medically necessary and supported by sufficient evidence?

APPLICABLE LAW

Sections 1905(d); 1905(a)(15); 1902(i)(1) of the Social Security Act N. C. Gen. Stat. Ch. 108A, Article 2, Parts 1 and 6 N. C. State Plan for Medical Assistance 10 N.C.A.C. 26C .0005 10 N.C.A.C. 26D .0006 10 N.C.A.C. 26G .0104(d) DMA Outpatient Specialized Therapies, Medical Policy No. 8F FINDINGS OF FACT

1. The parties received notice of the administrative hearing more than 15 days prior to the hearing date, and notice of the hearing was in all respects proper.

2. Petitioner is a forty-one (41) year old female with multiple sclerosis, incontinence, and hypoglycemia.

3. Respondent is the agency responsible for administering North Carolina’s medical assistance (Medicaid) program under the federal Medicaid law. Respondent’s DMA administers this program for Respondent.

4. DMA contracts with Medical Review of North Carolina (“MRNC”) to review requests for outpatient therapy services to determine if continued medical treatment is medically necessary.

5. On August 19, 2002, MRNC first approved Medicaid reimbursement for outpatient physical therapy for Petitioner for two times per week. This authorization was effective for a nine-week period beginning October 2, 2003, and ending December 6, 2002. Subsequent reviews by MRNC maintained Petitioner at those same services until April 5, 2003. (Resp Exh 1, pp 17, 30, 36)

6. On April 2, 2003, Petitioner again requested prior approval for Medicaid coverage for outpatient physical therapy at the frequency of two times per week for the period covering April 6, 2003 through June 4, 2003. (Resp Exh 1, pp 1-16)

7. MRNC reviewed Petitioner’s request. By letter dated April 10, 2003, MRNC denied Petitioner’s request for Medicaid reimbursement for outpatient physical therapy for two times per week, but approved Medicaid reimbursement for outpatient physical therapy at the frequency of one time per month. (Resp Exh 1, p 1)

8. Dianne Pierson, a MRNC employee and licensed physical therapist, reviewed all the documentation Petitioner submitted to support her April 2, 2003 request for prior approval for outpatient physical therapy.

9. When reviewing requests for prior approval for outpatient physical therapy services, MRNC and its employees are required to utilize the Guide to Physical Therapist Practice (Second Edition) to determine whether or not such services are medically necessary, and therefore, covered by Medicaid. Ms. Pierson reviewed Petitioner’s prior Medicaid authorizations, the information provided by Petitioner’s provider, and the progress notes of Petitioner’s physical therapist. Pierson reviewed the progress notes to determine if Petitioner had progressed towards her physical therapy goals, and if her condition had changed.

10. Ms. Pierson determined that the frequency requested by Petitioner exceeded the frequency permitted pursuant to the Guide to Physical Therapist Practice (Second Edition). According to Pierson, six to fifty (6-50) physical therapy visits are the “expected range of number of physical therapy visits per episode of care” required to achieve anticipated goals and expected outcomes for physical therapy. (Resp Exh 1, p 60) DMA had approved 52 physical therapy visits for Petitioner, and thus, had already exceeded the allowable frequency of physical therapy visits.

11. The success of a layperson in performing physical therapy on Petitioner also affected Pierson’s determination whether Petitioner’s medical needs meet the criteria enumerated in the Guide to Physical Therapist Practice, and if it is medically necessary for Medicaid to pay for Petitioner’s physical therapy services. Given Petitioner’s physical therapy goals, Pierson thought that she could train a layperson to perform physical therapy on Petitioner, and Petitioner could still meet such goals. (Pierson testimony)

12. For the above reasons, and per her practice, Pierson submitted her findings to a licensed physician for review. The physician then independently renders an opinion as to whether or not the requested frequency of service is medically necessary.

13. Ms. Pierson contacted Linda Robinson, M.D. Dr. Robinson, a North Carolina licensed physician, is self-employed as a family practitioner at Coats Medical Clinic. She also serves as a paid physician consultant for MRNC. She has served as a consultant numerous times in cases such as Petitioner’s case.

14. Dr. Robinson is familiar with Petitioner’s medical condition. In evaluating Petitioner’s case, Dr. Robinson asked herself, does a patient like this require physical therapy be performed by someone with a physical therapist’s skills. That is, when a layperson can learn to do stretching, and range of motion exercises, is it appropriate for that layperson to perform the physical therapy exercises at a patient’s home and under the physical therapist’s supervision.

15. Petitioner’s goals for outpatient physical therapy were prevent contracture, maintain flexibility, and increase sitting time. Both Petitioner’s goals and her condition have remained the same for some time. (Resp Exh 1, physical therapy notes) The physical therapy notes indicated that Petitioner had been meeting her physical therapy goals.

16. Robinson opined that the type of physical therapy exercises that Petitioner was receiving (stretching and range of motion exercises), was the type that could be administered by a nonprofessional person. Based upon her review of the documentation, Robinson thought that Petitioner’s physical therapy exercises could be taught to a friend or other care person who, in turn, could administer these exercises to Petitioner. In other words, Petitioner’s condition could be maintained with a lower level of care, administered with a physical therapist’s once-a-month supervisory visit. The frequency of physical therapy sessions one time per month is consistent with community practice standards for a patient with medical conditions similar to Petitioner’s conditions.

17. Based upon Petitioner’s current condition, Petitioner’s physical therapy goals and needs would be met by receiving outpatient physical therapy services from a physical therapist one time monthly. For those reasons, Dr. Robinson opined that outpatient physical therapy services two times per week, for the requested period of April 6, 2003 through June 4, 2003, was not medically necessary in Petitioner’s case.

18. There are persons in Petitioner’s home who can assist Petitioner with her physical therapy exercises.

19. DMA has not eliminated Petitioner’s outpatient physical therapy sessions, but determined that medical necessity only supports authorizing these outpatient physical therapy sessions at the frequency of one time monthly.

20. On May 16, 2003, Petitioner filed a petition for a contested case hearing appealing Respondent’s decision. On her petition, Petitioner wrote, “Medicaid has cut therapy back from 3 times per week to once a month.” Petitioner attached to her petition, letters from Dr. Albert R. Hinn and Dr. Kim Shaftner, supporting her grounds for appeal. Because these letters constituted hearsay, and those doctors did not appear at the administrative hearing, those letters were not considered as evidence at the administrative hearing.

21. A preponderance of the evidence proved that Respondent had never approved Medicaid reimbursement for outpatient physical therapy sessions for Petitioner for three times per week.

22. Due to her physical condition, Petitioner did not appear at the administrative hearing. Instead, Mr. James Holt, Petitioner’s caretaker, appeared on Petitioner’s behalf at the hearing. Mr. Holt neither presented any witnesses nor introduced any evidence supporting Petitioner’s petition.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings (OAH) and OAH has subject matter jurisdiction over this contested case.

2. Medicaid Policy No.: 8F provides that Medicaid will cover or reimburse outpatient physical therapy services for a Medicaid-eligible individual, but such services “must be medically necessary.” (Resp Exh 1, p 62)

3. Medicaid Policy No.: 8F, Section 3.1 provides that:

Medicaid accepts the medical necessity criteria for beginning, continuing, and terminating treatment as published by the American Physical Therapy Association in their most recent edition of Physical Therapy: Guide to Physical Therapist Practice, Part Two: Preferred Practice Patterns.

4. DMA properly determined that the number of outpatient physical therapy sessions medically necessary for Petitioner, and therefore, covered by Medicaid for Petitioner, should be reduced from two times weekly to one time monthly.

DECISION Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s decision to reduce the frequency of Petitioner’s outpatient physical therapy services to one time monthly is AFFIRMED.

ORDER AND NOTICE

The North Carolina Health and Human Services, Division of Medical Assistance, will make the Final Decision in this contested case. N.C.G.S. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C.G.S. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C.G.S. § 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714.

This the 13th day of October, 2003.

______Melissa Owens Lassiter Administrative Law Judge