Issued and entered December 27, 2002 by Frank M. Fitzgerald, Commissioner

ORDER

I
PROCEDURAL BACKGROUND

On November 2, 2002, XXXXXXXXXXX Petitioner) filed a request for external review with the Commissioner of Financial and Insurance Services (Commissioner) under the Patient’s Right to Independent Review Act (PRIRA) MCL 550.1901et seq. After reviewing the material submitted, the Commissioner accepted the request. The issue involved is medical in nature. The Commissioner therefore assigned it to an independent review organization (IRO) on November 18, 2002. On December 2, 2002, the IRO provided its recommendation to the Commissioner.

II
FACTUAL BACKGROUND

Petitioner is a 54-year-old man who works as a XXXXXXXXX. On April 3, 2002, while he was at work, Petitioner fell approximately 12 to 14 feet, hitting several layers of scaffolding on the way down. He was then seen in the emergency room with extreme back pain and was later discharged. He returned to the hospital on April 5, 2002, for an MRI. On April 9, 2002, he had surgery by a non-participating surgeon, XXXXXXXXXXXXX, M.D. of XXXXXXXXXXXXXXXXXXX XXXXXXX. A physician assistant, XXXXXXXXXXXX, P. A, provided assistance.

Dr.XXXXXXXX’s services for this surgery were billed under procedure code 22808 [arthrodesis, anterior, for spinal deformity, with or without cast; 2 to 3 vertebral segments]; procedure code 63085 [vertebral corpectomy (vertebral body resection), partial or complete, transthoracic approach with decompression of spinal cord and/or nerve root(s); thoracic, single segment]; procedure code 22851 [application of intervertebral biomechanical device(s) (eg. synthetic cage(s), threaded bone dowel(s), methylmethacrylate) to vertebral defect or interspace]; procedure code 22845 [anterior instrumentation; 2 to 3 vertebral segments]; and procedure code 20936 [autograft for spine surgery only; (includes harvesting the graft); local (eg. ribs, spinous process, or laminar fragments) obtained from same incisions)]. Dr. XXXX charged $16,000 for his services. BCBSM paid $5,535.59. BCBSM claims that it actually overpaid $756.40 but that it will not seek to recoup its overpayment.

Physician Assistant XXXXXXXXXXXXXXXXXXXXXXX Surgical Assistance services was billed at a total of $3,375.00. BCBSM entirely denied Mr. XXXXXX charges since it only pays for technical surgical assistance when a physician performs it.

III
ISSUE

Whether Blue Cross-and Blue Shield of Michigan (BCBSM) is required to pay any additional amount for Petitioner’s April 9, 2002 surgery?

IV
ANALYSIS

Petitioner’s Position

Petitioner claims that his surgery was emergency surgery and that he did not have opportunity to seek the services of a participating surgeon.

BCBSM’s Position

Petitioner’s coverage is through XXXXXXXXX, an area rated group. Professional Services Group Benefit Certificate governs his coverage. Rider RAPS (Reimbursement Arrangement for Professional Services) also applies.

Under the Certificate, participating doctors agree to accept BCBSM’s approved amount as payment in full for a covered service. A participating doctor cannot charge the patient the remaining balance even if the BCBSM payment is lower than the amount the doctor normally charges. If the member selects a non-participating doctor, BCBSM will pay the same approved amount it pays to a participating doctor. The non-participating doctor, however, is not bound to accept the BCBSM amount as payment in full and therefore may balance-bill the patient.

The Certificate also provides that if multiple surgeries are performed through the same incision on the same day, payment is 100% of the approved amount for the most costly procedure. Multiple surgeries performed on the same day but through separate incisions are paid at 100% for the more costly procedure and 50% of the approved amount for less costly procedures.

BCBSM determines the payment level for each service by applying a Resource Based Relative Value Scale (RBRVS). This RBRVS reflects the resources required to perform each service. It includes physician time, specialty training, malpractice premiums, practice expenses and overhead. BCBSM claims that it regularly reviews the payment level to address the effects of changing technology, training, and medical practice.

BCBSM claims the amount paid for Petitioner’s surgery was correct except for procedure Codes 22808 and 22851. BCBSM claims that it overpaid by $1,074.50 for Procedure Code 22808 since it should only have paid 50% of its approved amount under its multiple surgeries payment policy. On the other hand, BCBSM states it underpaid by $318.10 for Procedure Code 20931since it should have paid at the 100% rate rather than the 50% rate. BCBSM states that it made no payment for Procedure Code 20936 since it was performed through the same incision as another procedure and is thus included in the other procedure.

CBSM claims that it did not pay for Procedure Codes 22801, 22851 and 63085 performed by Physician Assistant XXXXXXXXXXX because it does not pay for TSA performed by a physician assistant.

BCBSM claims that there was one participating neurosurgeon in Petoskey where Petitioner’s non-participating neurosurgeon practiced.

BCBSM takes issue with Petitioner’s claim that his surgery was emergency surgery. First, BCBSM claims that Petitioner’s surgery did not take place until 6 days after his accident. Also, BCBSM claims that the operative report of XXXXXXXXXXXXXXX states under the subheading “BRIEF HISTORY” as follows: The patient was given the option of bed rest...After a long discussion with he and his family and understanding the risk and benefits he wished to have the surgical intervention.” BCBSM claims this shows that Petitioner had options beside surgery and that surgery was his decision. BCBSM claims that this hardly comports to an emergency situation where such decisions are normally out of the hand of the patient.

BCBSM claims that under the terms of Petitioner’s health care coverage, it correctly applied its maximum payment level for Petitioner’s surgical procedures. BCBSM claims there were no extenuating circumstances or complications that might have merited additional payment to its approved amount.

Independent Review Organization (IRO) Recommendation

The IRO indicates that Petitioner suffered a T-10 fracture in his fall. The IRO indicated that Dr. XXXXX’s reported a 50% destruction of the anterior column and facet and ligamentous injuries, which would be consistent with an unstable thoraco-lumbar fracture. The IRO indicates that the surgery consisted of an anterior corpectomy at T-10 with a fusion/fixation.

The IRO indicated that he had been requested to determine if the surgical services could have been performed within the health plan’s network. The IRO indicated that BCBSM provided only four names in its physician search and only one of these was a neurosurgeon and the other three were neurologists. The IRO indicated neurologists do not perform surgery and not all surgeons perform this type of procedure. The IRO states that BCBSM needs to provide a list of surgeons before the question could be answered.

The IRO also reviewed the issue of whether the incisional approach was appropriate for the multiple surgeries and included it was. The IRO concluded that whether BCBSM pays for technical service assistance by non-physician assistants is an administrative issue.

Commissioner’s Review

The Certificate of Coverage controls the analysis of this matter. It defines the term “Non-participating Provider” as:

Any provider who has not signed a participation agreement with BCBSM to accept the approved amount as payment in full. However, nonparticipating providers may agree to accept the approved amount on a per claim basis.

This language places a subscriber on notice that BCBSM pays an “approved amount” and that a non-participating provider is not bound to accept it as payment in full.

Section 2 of the RAPS Rider informs a member that he may be affected when a non-participating provider is used. It states:

When you receive services from a non-participating provider, you should expect to pay charges to a non-participating provider at the time you receive the care. It is then your responsibility to submit a claim to us. If we approve the claim, we will send the payment directly to you. Because non-participating providers may charge more than the approved amount, our payment to you may sometimes be less than the amount charged by the provider… [Emphasis added]

The highlighted portion above is a clear warning that using a non-participating provider may lead to a reimbursement lower than the charged amount.

Petitioner claims that his operation should be considered an emergency and therefore a participating surgeon should not have been necessary. The surgery however was not an emergency since it was not performed until six days after the accident. This would have allowed time for Petitioner to seek a participating surgeon and to have had the surgery performed outside the Petoskey area if necessary.

In this case, XXXXXXXXXXXXXXXXXXXXX is a non-participating provider with BCBSM. As such, it is not bound to accept the BCBSM approved amount and is free to charge a reasonable and competitive amount. There is no proof that XXXXXXXXXXXXXXXXXXXXXXXX charges were unreasonable or excessive.

The Certificate also clearly stated that non-participating providers are not bound to accept the approved amount and may charge more. The excess charges are Petitioner’s responsibility. Petitioner is therefore responsible for the balance.

The IRO concluded that the surgery could have been provided by participating neurosurgeons. Thus, there was no basis for Petitioner to have gone outside the network of participating providers. The Commissioner agrees with these conclusions. The Commissioner also finds the $5,535.39 paid by BCBSM for the surgeries is the maximum allowable under its system of payments.

V
ORDER

Therefore, the Commissioner ORDERS that the final adverse determination of BCBSM dated October 28, 2002 should be upheld. BCBSM is not required to pay an additional amount for Petitioner’s April 9, 2002 surgery.

This is a final decision of an administrative agency. Under MCL 550.1915, any person aggrieved by this Order may seek judicial review no later than sixty days from the date of this Order in the Circuit Court for the county where the covered person resides or in the Circuit Court of Ingham County. A copy of the petition for judicial review should be sent to the Commissioner of the Office of Financial and Insurance Services, Health Plans Division, Post Office Box 30220, Lansing, MI 48909-7720.