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Written by: Matt Marriott
Over the last year, we have seen an uptick in claimant attorneys requesting a second opinion on treatment options under N.C. Gen. Stat. § 97-25(b) and that defendants 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit.
Claimant attorneys argue there are not any medical providers in North Carolina who will accept payment of just the fee schedule amount for second opinion visits and do not require any prepayment. Therefore, they contend they are being deprived of their right to a second opinion on treatment options under N.C. Gen. Stat. 97-25(b) if defendants do not pay a prepayment as well as more than the fee schedule amount for the visit. Additionally, many attempt to argue that the NCIC Fee Schedule does not specifically lay out a billing code for second opinion on treatment options visits under N.C. Gen. Stat. 97-25(b).
While there is no binding case law from the NC Court of Appeals or Supreme Court on these issues, the Full Commission issued a decision in May 2022 that provides a comprehensive analysis explaining:
Commissioners Taylor, Phillips, and Goodman explained in Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), that N.C. Gen. Stat. § 97-90 continues to prevent medical providers from forcing defendants to pay any kind of prepayment for a visit. The Commission specifically stated:
The charges assessed by healthcare providers for medical compensation under the Act are subject to the approval of the Commission. N.C. Gen. Stat. § 97-90(a) (2021). No “physician or hospital or other medical facilities shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission in connection with the case.” Id. “[A] request for a specific prior approval to charge shall be submitted to the Commission for each such fee or charge.” Id. Any health care provider who willfully or intentionally undertakes to submit charges for health care that was not furnished is subject to an administrative penalty, assessed by the Commission, not to exceed ten thousand dollars. N.C. Gen. Stat. § 97-88.3(a)(1) (2021). The clear intent of N.C. Gen. Stat. §§ 97-26 and 97-90 “is to assure that medical and related expenses incurred by an injured employee for which the employer or his insurance carrier is to be liable shall be kept within reasonable and appropriate limits, and the responsibility for the enforcement of these limits rests upon the Industrial Commission.” Morse v. Curtis, 20 N.C. App. 96, 99, 200 S.E.2d 832, 834 (1973), cert denied, 285, N.C. 86, 203 S.E.2d 58 (1974). Wyatt at 9-10.
In addition to confirming in Wyatt that N.C. Gen. Stat. § 97-90 prevents defendants from being compelled to pay a prepayment for a second opinion, the Commission also confirmed N.C. Gen. Stat. § 97-26 prevents defendants from having to pay beyond the fee schedule for a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options. The Commission held:
N.C. Gen. Stat. § 97-26(a) requires the Commission to adopt by rule a schedule of maximum fees for medical compensation. The Commission, pursuant to that mandate and in compliance with the North Carolina Administrative Procedure Act, 150B et seq., has adopted 11 NCAC 23 Subchapter J Fees for Medical Compensation. 11 NCAC 23J .102(b)(1) sets the maximum reimbursement rate for professional services for evaluation & management at 140 percent of the Medicare base amount. While the Act also contemplates instances in which the fee schedule does not apply to a particular type of service and in those instances, the maximum reimbursement to which the provider is entitled is “the usual, customary, and reasonable charge for the service or treatment rendered,” this option is only available when the Fee Schedule does not apply. See N.C. Gen. Stat. § 97-26(c) (2021). The Commission, in its discretion, takes judicial notice of American Medical Association, Current Procedural Terminology (CPT®) (4th ed. 2019) and specifically the full description of CPT code 99456. Id. at 43. Pursuant to the North Carolina Rules of Evidence, the Commission concludes that this information is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. See N.C. Gen. Stat. §8C-1, Rule 201(b) and (c). In this instance, the fee schedule’s enumeration of services for “evaluation & management” and the CPT code 99456 description in its entirety contemplates examination by a non-treating physician with a medical history, exam with a diagnosis, assessment of capabilities and impairment, “development of future medical treatment plan; and completion of necessary documentation . . . .” A 97-25(b) second opinion examination encompasses an extensive medical history, a physical exam, diagnosis, assessment of capabilities and impairment, and development of future medical treatment plan. Thus, the Medical Fee Schedule and specifically CPT code 99456 contemplate and encompass the professional services involved in a second opinion examination. Wyatt at 8-9.
After verifying that defendants do not have to pay beyond the fee schedule for a second opinion evaluation on treatment options under N.C. Gen. Stat. § 97-25(b), the Commission established that $301.23 was the correct amount under the fee schedule for a second opinion under N.C. Gen. Stat. § 97-25(b), as laid out in CPT code 99456.
A decision from the Full Commission is not binding case law in the same way an opinion from the NC Court of Appeals or Supreme Court would be. With that said, Wyatt establishes that the Full Commission sides with defendants about not being responsible for any kind of prepayment when a plaintiff requests a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options, and about not being responsible for payment beyond the fee schedule for such a visit.
While this issue remains a hot topic and could evolve in the future once the appellate courts address the issue, for now, defendants are within their rights to not issue any prepayment or pay beyond the fee schedule when a plaintiff attorney is demanding that those conditions be met.
Finally, based on Wyatt, CPT code 99456 is the correct billing code to apply to a second opinion evaluation under N.C. Gen. Stat. § 97-25(b), and the correct fee schedule amount is $301.23 for such a visit.