Cascade Physical Therapy v. Hartford Casualty Insurance

310 P.3d 1156, 258 Or. App. 612
CourtCourt of Appeals of Oregon
DecidedSeptember 25, 2013
Docket0900090H; A148032; 0900015H; A148033; 0900016H; A148034; 0900107H; A148036; 0900009H; A148037; 0900085H; A148039
StatusPublished
Cited by2 cases

This text of 310 P.3d 1156 (Cascade Physical Therapy v. Hartford Casualty Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cascade Physical Therapy v. Hartford Casualty Insurance, 310 P.3d 1156, 258 Or. App. 612 (Or. Ct. App. 2013).

Opinion

ORTEGA, P. J.

This case involves a medical fee dispute in which Cascade challenges the fees paid by insurer for medical services that Cascade provided to injured workers between January 2006 and May 2008.1 Cascade seeks judicial review of a final order in which the director of the Department of Consumer and Business Services (DCBS) concluded, after a contested case hearing, that insurer was not required to pay Cascade any additional amounts for the medical services at issue.2 On review, Cascade asserts that the director reached that conclusion based on an erroneous interpretation of OAR 436-009-0040(1) (01/01/08).3 We conclude that the director’s interpretation of OAR 436-009-0040(1) was plausible, and we therefore affirm the order.

The relevant background facts were stipulated before the agency. At the time of the medical services at issue, Cascade had an existing contract (the provider contract) with First Health Group Corporation or its successor (the PPO organization) to participate in its preferred provider panel. Under the provider contract, Cascade agreed to accept a reduction in its usual and customary fees for clients of the PPO organization. The provider contract stated that the PPO organization intended to market its agreement to “various health insurance plans, indemnity insurers and workers’ compensation insurers.” At the time of the medical services [616]*616in question, insurer was a client of the PPO organization; that is, it “had a valid contract with [the PPO organization] under the terms of which a percentage of, or all of, the discounted fees agreed to by [Cascade] and [the PPO organization] were made available to” insurer (the PPO contract).

Between January 2006 and May 2008, pursuant to compensable workers’ compensation claims, Cascade provided reasonable, necessary, and authorized medical services to injured workers. Cascade then billed for those services at its usual and customary rate. However, insurer paid Cascade’s bills at a lesser rate in accordance with the provider and PPO contracts. The differences between the amount billed by Cascade and the lesser amount paid by insurer are the basis for the dispute in this case — “whether insurer [was] authorized to discount payments to [Cascade] for billed fees based on a fee discount contract between [Cascade] and [the PPO organization].”

The Workers’CompensationDivision’sResolution Team (resolution team) issued an administrative order in which it concluded that insurer had properly applied the discounts based on the provider and PPO contracts and, therefore, did not owe Cascade any additional payment. Cascade then requested a hearing.

Ultimately, the director, like the resolution team, resolved the dispute in favor of insurer, concluding that “fee discount contracts between providers and insurers were permitted” under the applicable version of OAR 436-009-0040(1). Under that rule,

“[t]he insurer must pay for medical services at the provider’s usual fee or in accordance with the fee schedule whichever is less. Insurers must pay for medical services that have no fee schedule at the provider’s usual fee. For all [managed care organization (MCO)] enrolled claims, the insurer must pay for medical services at the provider’s usual fee or according to the fee schedule, whichever is less, unless otherwise provided by the MCO contract. Where there is no maximum payment established by the fee schedule, an insurer may challenge the reasonableness of a provider’s billing on a case by case basis by asking the director to review the billing under OAR 436-009-0008. If the director [617]*617determines the amount billed is unreasonable, the director may establish a different fee to be paid to the provider based on at least one of, but not limited to, the following: reasonableness, the usual fees of similar providers, the services provided in the specific case, fees for similar services in similar geographic regions, and any extenuating circumstances.”4

As noted, the director concluded that “fee discount contracts between providers and insurers were permitted” under the rule. He explained that “the rule does not expressly prohibit fee discount contracts. Nor does it include exclusive language, such as the word ‘only.’” Furthermore, “the rule must be read in the context of its authorizing statute, ORS 656.248(2).” The “clear intent of [that] provision is to set an upper limit on what medical fees may be paid, the fee schedule.” The statute, however, “deliberately does not set a minimum or a floor for medical fee payments.” In the director’s view,

“[s]etting maximum fees contains costs. Not setting a floor helps to contain costs, by allowing insurers and providers to negotiate fees less than the fee schedule. Permitting discount contracts allows providers to determine how much less than the fee schedule they can charge while still providing quality medical services. Enforcing fee discount contracts is consistent with the wording of the rule and the statute, and with the policies of the workers’ compensation system.”

In addition, the director observed,

“the rule and statute authorize payment of the provider’s ‘usual fee.’ When a provider and insurer sign a contract authorizing an agreed-upon discount for a given service, the parties have essentially agreed on what the provider’s ‘usual fee’ is for each covered service. The provider is therefore being paid their ‘usual fee’ within the meaning of the statute and the rule.”

Based upon his interpretation of OAR 436-009-0040(1), the director concluded that insurer had “paid the amounts owed and [was] not required to pay any additional amounts for the bills at issue in this matter.”

[618]*618On judicial review, Cascade contends that the department incorrectly interpreted OAR 436-009-0040(1) to “allow insurer [] to apply private [fee-discount contracts] to payments owed to medical providers for services to injured workers.” In Cascade’s view, the “amounts actually paid were less than the amounts *** insurer was required to pay under the Oregon workers’ compensation fee schedule and rates.” Insurer and DCBS respond that the director has interpreted OAR 436-009-0040 as permitting the fee-discount contracts, and that interpretation is plausible and entitled to deference. We agree with insurer and DCBS.

Under ORS 183.482(8)(a), we are authorized to reverse the department’s order if it was based on an erroneous interpretation of the law. We must, however, defer to an “agency’s plausible interpretation of its own rule.” Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994); see also SAIF v. Donahue-Birran, 195 Or App 173, 181, 96 P3d 1282 (2004) (“The rules in OAR chapter 436 were promulgated by the director of [DCBS] * * * and we defer to DCBS’s plausible interpretation of its rules.”); SAIF v. Eller, 189 Or App 113, 119, 74 P3d 1093 (2003) (the appellate court defers to DCBS’s interpretation of its rules “if that interpretation is plausible, that is, consistent with their wording, their context, or any other source of law”).

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Related

State v. Campbell
438 P.3d 448 (Court of Appeals of Oregon, 2019)
Back in Action Physical Therapy v. Liberty Northwest Insurance
316 P.3d 324 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
310 P.3d 1156, 258 Or. App. 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cascade-physical-therapy-v-hartford-casualty-insurance-orctapp-2013.