Kathleen Mason v. State of Delaware: A Double Play on Provider Certification & Reasonable & Necessary (Not)

Kathleen Mason v. State of Delaware: A Double Play on Provider Certification & Reasonable & Necessary (Not)

The Delaware Industrial Accident Board has been a issuing decisions of interest in rapid-fire succession in the New Year and I am remiss to not have caught up on all the great stuff out there to report.  Give me time to get you all up to speed, but in the mean time I am here to share with you a little potboiler of a decision that left me turning the pages breathlessly as though I were reading one of those dirty little Harlequin romance novels.   Are those still in print ? . . . actually I checked online and they are.  And their motto-- "Where a happily ever after is always guaranteed."  Well, perhaps not if your name is Kathleen Mason or Deborah Ruffner.

Enter the ruling of the week in Kathleen Mason v. State of DE, IAB Hrg. # 1198102 (1/15/10) which was brought to my attention by colleague Dennis Menton, who handled the State's representation and was apparently still enjoying the spoils of victory.  And frankly, this opinion was already on the top of my "to do" list, second only to last week's case about the Section 2322F fine.

Here are the facts in terms of what is important:  The case had not been sent out for Utilization Review because the massage therapist (Ms. Ruffner) was not a certified provider.  Claimant filed a DACD for medical bills and for travel expense and massage therapy was one of the items.  The State took the position that the massage therapy bills from Back in Action were not compensable because the provider was not certified and did not obtain pre-authorization for treatment.

Of note,

  • The provider in question was local, distinguishing this case and its proposition of law from Bertha Polk v. Green Acres Pavilion, IAB # 1253843 (12/4/09) which was reported here on 12/28/09 involving out-of-state providers;
  • The treatment in question post-dated 5/23/08 when the provider certification system and Health Care Practice Guidelines went into effect
  • The provider in question did not obtain pre-authorization for treatment from the carrier;
  • The provider was not certified under the Health Care Payment System until two weeks prior to the IAB hearing and two months after the last date of service on the bill;
  • The provider charge per visit for massage was $395.00.

The law of the case according to this author:

  • A Delaware medical provider must either be certified or obtain pre-authorization from the employer or insurer in order to seek payment for services under the Delaware workers' compensation payment system.  The only exceptions are the first occasion of treatment by that provider or for treatment by emergency personnel.  In this particular case the massage therapy rendered by Deborah Ruffner was thus disallowed for payment.
  • This case is distinguishable from Bertha Polk v. Green Acres Pavilion, in which the claimant sought treatment from a non-local, non-certified physician after the claimant moved away from Delaware.  According to the Board in Mason, the language of Section 2322C(6) would suggest that non-certified providers without pre-authorization may seek payment for medical services if they can establish reasonableness and necessity of care in an IAB proceeding.  The distinction is that in Section 2322D the Board interprets the mandatory language of that section to reflect a legislative intent to compel local providers over which it can obtain jurisdiction to submit to the certification process and be subject to the Health Care Practice Guidelines if they want to pursue payment under the Workers' Compensation Act.
  • Massage therapy was deemed outside the Guidelines and not reasonable, noting that it had occurred over a span over several years at a charge of $395.00 per visit; the Board took exception to both the treatment and the charges.

On a collateral note, the Board did award the claimant mileage for three roundtrips per week to the YMCA closest to her home for aqua therapy.

Well, as we all prepare for the coming snowstorm and a potentially housebound weekend, I for one will be scanning the IAB rulings for next week's posts.  I really enjoyed this case.  The thought that keeps coming to mind is that if you want to play on the home team, you need a copy of the rule book.  We now have these Practice Guidelines and certification requirements and if you are a provider who cannot keep up, you ought to be benched.  Good going, IAB!

 Cassandra Roberts

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