PA Bureau of Work Comp Fee Review Hearing Office may determine – who is a “medical provider” with standing to pursue a fee review remedy.

Fee Review provides a forum to medical providers to contest the amount or timeliness of the payments received from an employer or insurer. In 2019, The Commonwealth Court issued a decision, allowing jurisdiction to the Hearing Office to address the issue of whether an entity was a provider. The definition of “who is a provider” continues to be disputed.

See: Harburg Medical Sales Co. v. PMA Management Corp. (Bureau of Workers’ Compensation, Fee Review Hearing Office), No. 635 C.D. 2020; August 30, 2021

Harburg Medical Sales Co., appealed two adjudications of the Bureau of Workers’ Compensation, Fee Review Hearing Office, that denied Harburg’s requests for de novo hearings to contest the Bureau’s administrative denial of fee review applications on the ground that Harburg was not a provider within the meaning of Section 109 of the Workers’ Compensation Act and, therefore, lacked standing to invoke the fee review process.

Factual Background

A worker sustained an injury in the course of his employment . After he developed chronic pain, his doctor sent orders for certain pain treatment modalities to Harburg. Upon receiving the orders, Harburg communicated with various distributors (never identified, except—at one point—as Amazon, in these proceedings), advanced payment for the items, and directed them to be delivered to Maximo’s residence via UPS or FedEx. Thereafter, Harburg billed PMA Management Corporation.

Following a dispute between Harburg and PMA as to the amount properly payable for the items, Harburg filed fee review applications with the Bureau.

Upon the Bureau’s denial of the applications, Harburg sought further review by requesting de novo hearings.  PMA moved to dismiss the applications on the grounds that Harburg was not a provider and that the Hearing Office lacked jurisdiction to address the issue of whether an entity was a provider. The Hearing Office denied the motion to dismiss based on the then-controlling case law. The Hearing Office relied on Selective Insurance Co. of America v. Bureau of Workers’ Compensation Fee Review Hearing Office (The Physical Therapy Institute), 86 A.3d 300 (Pa. Cmwlth. 2014), which the Commonwealth Court subsequently overruled.

Subsequently, the Commonwealth Court issued two decisions impacting the instant case. In Armour Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (Wegman’s Food Markets, Inc.), 206 A.3d 660, 671 (Pa. Cmwlth. 2019) (en banc) (Armour I),  the Court held that the Hearing Office had jurisdiction to determine whether a supplier was a provider.

Thereafter,  the Commonwealth Court directed the Hearing Office in a related series of cases to adjudicate the threshold issue of whether Harburg was a provider. See: PMA Mgmt. Corp. v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Harburg Med. Sales, Co., Inc.) (Pa. Cmwlth., No. 1757 C.D. 2017, filed Apr. 12, 2019).  Pursuant to that directive, Hearing Officer David Torrey conducted a hearing and concluded that Harburg was not a provider. Harburg filed this appeal.

Decision and Reasoning of the Court

In determining that Harburg does not meet the definition of provider, the Commonwealth Court noted that Harburg is neither licensed nor authorized by the Commonwealth to provide health care services.

Additionally, there are no government agencies specifically authorizing Harburg to distribute medical supplies, no state or federal quality standards for suppliers of such items, and no continuing education requirements for operating a medical supply company. Review of the facts do not warrant a legal determination that Harburg is an agent of a licensed health care provider.

The Court rejected Harburg’s argument that the Hearing Officer’s decision violated Harburg’s due process rights by depriving it of a forum to contest the amount or timeliness of the payments received from the employer or the insurer.

Even though Harburg may have rendered convenient services or assisted injured workers to obtain equipment or supplies that were part of his or her treatment plan, the pertinent legislation does not dictate that any person or entity which does so be afforded an opportunity to invoke the fee review process.

Pursuant to the clear language of Section 306(f.1)(5) of the Act, only providers have standing to do so. If the General Assembly wishes to expand the definition of provider in legislation pertaining to medical cost containment and the fee review process, then it needs to enact appropriate laws.

The Court concluded that Harburg was not deprived of its due process rights. In Armour I, the Commonwealth Court held that “it offended due process . . . as well as the Act’s careful scheme for resolving fee disputes to place the question of whether a putative provider is actually a ‘provider’ beyond the reach of judicial review.” Armour I, 206 A.3d 670. The Court determined that the Hearing Office has jurisdiction to determine whether a supplier is a provider.

In the instant case, Harburg was given a full hearing on this issue and afforded due process; it simply did not agree with either the result or the consequences necessarily following therefrom—its inability to invoke the fee review process. Determining the legal status of Harburg ends our inquiry. As Hearing Officer Torrey concluded: “It may well be that some medical supply houses are, somehow, providers under the Act, and have standing to file Requests in this forum. However, on the evidence presented in this case, Harburg is not one of them.”

PRACTICE POINTERS:

Carefully review medical billing statements. Is the statement from the medical provider or from another entity? If not a provider, the employer/insurer may seek dismissal of the review request.

2.      Fee Review provides a forum to medical providers to contest the amount or timeliness of the payments received from an employer or insurer.

3.      Utilization Review provides a forum to employers, insurers and claimants to request prospective, concurrent or retrospective review of the reasonableness or necessity of medical treatment expense.

4.      The Employer and Insurer have additional remedies to contest medical expenses. A Petition to Review may challenge the causal relationship of a medical expense and the work injury. A medical expense may be denied outright – but a WCJ may ultimately determine the denial was unreasonable and assess counsel fees.

5.      When reviewing medical expenses, consider your options. What is the focus of your dispute ? Is it the expense amount, the frequency of care or type of care? Discuss your remedies with your work comp counsel.