Chapter 3.D.2: Determining What Is Medically Appropriate

Here are links for Medicare Guidance Documents, Coverage Manual, and Coverage Determinations:

http://www.cms.hhs.gov/center/coverage.asp
https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs.html
[cms.hhs.gov]http://www.cms.hhs.gov/mcd/index_list.asp?list_type=ncd

For a review these issues, see American Health Lawyers Association, Medical Necessity: Current Concerns and Future Challenges (2005).

The following compelling narrative about how one medical director recalls making medical necessity decisions is excerpted from Congressional testimony given by Linda Peeno, M.D., May 30, 1996. She is an outspoken critic of managed care who testified regularly for plaintiffs:

I am a former medical reviewer and medical director for three managed care organizations. . . . I wish to begin by making a public confession: In the spring of 1987, as a physician, I caused the death of a man. No person or group has held me accountable for this--for this was a half million dollar savings to my employer. In fact, this act secured my reputation as a "good" company doctor, and insured my advancement in the health care industry--in little more than a year I went from making a few hundred dollars a week to an annual six-figure income. In all my work, I had one primary duty: to use my medical expertise for the financial benefit of the organization. According to the managed care industry, it is not an ethical issue to sacrifice a human being for a "savings." I was told repeatedly that I was not denying care, I was only denying payment. . . .

I am here today to tell you about the dirty work of managed care. . . .

I turned pre-existing exclusions into a game, as I tried to connect almost any medical complaint or visit into a reason to deny payment for some requested surgery or service based on "pre-existing" conditions; for example, I commonly used this to deny gynecologic surgery . . .
I was only as "good" as the doctors in my network, for it was their numbers that I needed to prove I was doing my job. That means that I did whatever it took to "control" them -- intimidation, hassling, humiliation -- I have done it all. I have used inaccurate data to create reports to get doctors to make their "numbers" better (i.e. lower their usage). I have used "economic credentialing" to select the least expensive physicians, rarely correlating these figures with corresponding assessments about clinical practice. I have helped design contract provisions to ensure our payment and monitoring schemes got the results we wanted at the plan. I have threatened deselection to those who were especially "difficult," or costly.

There is one last activity, though, which deserves a special place in this list. This what I call the "smart bomb" of cost-containment: "medical necessity" denials. Let me take you to the heart of managed care. Even if a plan denies using all of the above to control members and physicians, it is impossible to deny their use of the practice vital to managed care: making medical decisions about access, availability, and use. Even when medical criteria is used, it is rarely developed through traditional clinical processes, and it never standardized across the field. The criteria is never available for prior review by physicians or members. So, even if a plan has a clear benefit package, a few perks like free eye exams, screening tests for cancer, or other marketing ploys, the member's physician will NEVER be the final authority on what his or her patient will get. This might go unnoticed with the simple needs -- the yearly visit, the flu and simple surgery, but when something unexpected and expensive happens, e.g. trauma out of network; a major medical or surgical condition; cancer; conditions needing extensive services, like rehabilitation or technology; something experimental or rare, then--like a bucolic pasture turn battlefield, the landmines start exploding everywhere.

Somewhere in every coverage booklet for every managed care plan is a claim that establishes the plan as the final authority for determination of medical necessity. What that means is that there is some physician making that decision, someone like who:

was not practicing, but sitting behind a desk making decisions about a patient I would not see or touch, completely removed from the consequences of my decisions
was getting paid by someone to make decisions for the benefit of a plan, not for the benefit of its members; had a job defined by how much I saved the company (or how many denials I made); in one job I had to meet a certain denial quota, in another, no number was ever high enough
had no code of ethics for my hybrid role between executive and physician
had no one challenging my medical decisions or my authority, especially when they involved denials.

What kind of system have we created when a physician can receive lucrative income for adding to the suffering of patients? I became a physician to care for, not bring harm to, my patients. Since leaving my last job, I live with the pain of what I have done. I am haunted by the thousand of pieces of paper on which I have written that deadly word: DENIED. Those papers -- including at least one death sentence I know about -- are the evidence that managed care is inherently unethical.

Problem: Appealing Adverse Coverage Decisions by HMOs

This problem is adapted from a real case history developed by the Center for Health Care Rights in California. What procedural remedies does the patient likely have under private insurance and under Medicare or Medicaid? Are they adequate?

Mr. H. was a diabetic and had severe ulcers on his feet. He was a member of an HMO, and his primary care physician had prescribed a treatment regimen that was proving ineffective. In response, the primary care physician offered Mr. H. an amputation below the knee as his only option. Mr. H. went out-of-plan to a local wound care center that specialized in diabetic wound treatment where he was advised that vein by-pass surgery would likely take care of his problem. The HMO denied such surgery because Mr. H. referred himself to the specialist without permission. The HMO advised Mr. H.'s family that its utilization review department was reviewing the case, but that it would take at least a month to review. Subsequently, the HMO agreed to approve such surgery, but only if done by Mr. H.'s current medical group, which did not have any physician who had ever performed vein by-pass surgery. Mr. H.'s family asked for him to be transferred to a primary care physician at the medical group which staffs the wound care center. The HMO responded that although they sometimes approve such requests, they would not do so in Mr. H.'s case and that they had already granted enough of his requests. They gave as their reason a provision in the plan documents that prevent referrals outside the plan's network when the network's physicians have the capability to perform the required procedure.