STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BERTIE 09 INS 6817

______________________________________________________________________________

TAMMY A LEE )

Petitioner, )

)

vs. )

) DECISION

BLUE CROSS BLUE SHIELD OF )

NORTH CAROLINA )

)

Respondent. )

______________________________________________________________________________

This contested case was heard before Administrative Law Judge Donald W. Overby, on April 20, 2010, in Elizabeth City, North Carolina.

APPEARANCES

For Petitioner: Tammy A. Lee

2940 Wakelon Road

Colerain, NC 27924

For Respondent: Lotta Crabtree

Assistant Attorney General

North Carolina Department of Justice

PO Box 629

Raleigh, NC 27602

EXHIBITS

For Petitioner: 1 – 7

For Respondent: 1 – 5

WITNESSES

For Petitioner: Tammy Lee

Vernon Lee

Robert Hearn

For Respondent: Dr. Andrew Bonin

ISSUE

Whether Respondent deprived Petitioner of property and acted erroneously by processing Petitioner’s claims for treatment from the Laser Spine Institute at an out of network level where the provider is not a participant in the Blue Cross Blue Shield Provider Network and in network providers were available to treat Petitioner’s condition?

FINDINGS OF FACT

Based on a review of the witness testimony, exhibits, and the records as a whole, it is found as a fact that:

1. Respondent is an agency of the State of North Carolina, and offers health care benefits to eligible active and retired employees and their enrolled dependants in accordance with the applicable North Carolina General Statutes, the benefit booklet for Respondent’s preferred provider organization (hereinafter “PPO”) plan, and Respondent’s health care policies.

2. Petitioner, Tammy A. Lee, is a covered state employee and member of the State Health Plan’s North Carolina Smart Choice Blue Options PPO Plan.

3. Blue Cross Blue Shield of North Carolina (BCBSNC) is the claims processor for Respondent’s Smart Choice Blue Options PPO Plan.

4. Petitioner suffers from chronic back pain related to degenerative disc disease and foraminal stenosis among other conditions. On June 1, 2007, Dr. John Partington performed surgery to treat her condition. That surgery did not completely relieve her pain and over the course of the next 14 months her pain increased to the point that Dr. Partington recommended additional surgery with spinal fusion. Dr. Partington explained to Petitioner that there would be a prolonged recovery period for spinal fusion surgery and that she would be out of work for six months to a year.

5. Petitioner was distressed by the long recovery, pain and other limitations associated with such an aggressive surgery and began to research alternative surgeries and treatment. Petitioner’s search led her to the Laser Spine Institute.

6. The Laser Spine Institute (LSI) is located in Tampa, Florida and offers minimally invasive spine surgery to treat certain spine conditions. LSI utilizes laser technology for some aspects of the surgeries performed.

7. Petitioner decided to seek treatment from LSI. On March 19, 2009, Dr. Robert Gruber and Dr. Kevin Scott performed spinal surgery on Petitioner. The surgery included “destruction by thermal ablation parvertebral facet join nerves bilateral L4/4 and L5/S1” and “lumbar laminotomy (Hemilaminectomy) with foraminotomy including partial facetectomy and decompression of the nerve roots right L5/S1, with percutaneous lysis of adhesions/caudal epidural steroid injection.” Petitioner’s Exhibit 6. Petitioner was also informed by LSI that she may yet require the fusion surgery as recommended by Dr. Partington.

8. Following surgery, LSI submitted claims to BCBSNC for payment totaling $65,282.06. Petitioner’s Exhibit 7.

9. The claims were paid according to the terms of Respondent’s PPO Benefit booklet regarding out-of-network benefits. LSI received payment of the “allowed amount” after Petitioner met her co-pay and deductibles. The allowed amount is the charge that BCBSNC determines is reasonable for covered services provided to a member. Respondent’s Exhibit 2 and 5.

10. As an out-of-network provider, LSI could hold Petitioner responsible for the difference between its charges and the allowed amount. In this case, LSI collected $30,000 from Petitioner.

11. According to the terms of the benefit booklet if in-network providers are not reasonably available as determined by BCBSNC’s access to care standards a member may receive in-network benefits from an out-of-network provider.

12. Petitioner’s condition required the specialty of either a neurosurgeon or orthopedic surgeon. There were numerous in-network providers available to her, including those that perform minimally invasive spine surgery.

13. Petitioner’s argument that because there are no in-network providers that utilize lasers for spine surgery, and therefore, LSI should have been treated as an in-network provider is unfounded. A review of the operative report coupled with the credible testimony of Dr. Bonin reveals that the laser portion of the surgery was a very small part of the overall surgery. The nerve ablation that was achieved by the laser could have been achieved by other methods including radiofrequency or scalpel.

14. Petitioner submitted over Respondent’s objection information on laser spine surgery from several centers across the country. Careful reading of this information shows that these various centers rely primarily on the minimally invasive techniques, and the role of the laser appears to be minimal. From the Atlantic Spinal Care, location unknown, the “laser back surgery is a same day, minimally invasive procedure,” with no further mention of the use of lasers. From the Spine Universe site, the information concentrates of the benefits of minimally invasive surgery versus the more traditional, more invasive surgery. It does state “laser technology can also be used to separate or eliminate tissue formations in some types of minimally invasive procedures.” Of particular note, the information provided about LSI, who performed Petitioner’s procedure, touts its experience in minimally invasive surgeries and does not mention use of lasers at all.

15. The current procedural technology (CPT) codes submitted by LSI for payment of the claims are the standard codes that would have been submitted by in-network physicians for the same surgery. Use of lasers in minimally invasive spine surgery does not have a particular CPT code in that the laser is an instrument used during the surgery as opposed to a description of the procedure itself.

CONCLUSIONS OF LAW

From the foregoing findings of fact, the undersigned Administrative Law Judge, finds as a matter of law:

1. Respondent did not commit error when it processed Petitioner’s claims from the Laser Spine Institute at out-of-network levels where in-network physicians were available to treat Petitioner’s condition.

2. Petitioner has not met her burden of proof. LSI is not entitled to be reimbursed as an in-network provider.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the decision of the North Carolina State Health Plan for Teachers and State Employees to deny reimbursement of Petitioner’s claims from LSI at in-network benefit levels be upheld.

NOTICE

The agency that will make the final decision in this contested case is the Board of Trustees of the North Carolina State Health Plan for Teachers and State Employees.

The agency making the final decision in this contested case is require to give each party an opportunity to file exceptions to this Recommended Decision and present written arguments to those in the agency who will make the final decision.

The agency is required by N.C. Gen. Stat 150B-36 to serve a copy of the final agency decision on all parties and to furnish a copy to each party’s attorney of record and to the Office of Administrative Hearings.

This the 3rd day of May 2010.

________________________________

The Honorable Donald W. Overby

Administrative Law Judge Presiding

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