Biography: Glaser is a health care attorney at Fredrikson & Byron, P.A.
April 11, 2018
2 min read

BLOG: Tools you can use in medical necessity denials

Biography: Glaser is a health care attorney at Fredrikson & Byron, P.A.
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It is relatively common to face medical necessity denials. A recent case offers lessons about challenging a Medicare contractor when it asserts your care is not medically necessary.

The case, which involved the medical necessity of therapy services provided by HCR ManorCare, drew attention because the government’s expert lied and failed to disclose notes, but that isn’t the key fact for orthopedic practices. The court determined that even absent those errors, AdvanceMed’s expert lacked the expertise to testify about medical necessity. The order states that “the Court finds that Rebecca Clearwater does not have the expertise to testify as to the reasonableness and necessity of the medical treatment the patients received. Her qualifications, at best, would allow her only to testify as to obvious mistakes in the billing. Furthermore, Clearwater is not a medical doctor, an occupational therapist, nor a speech language pathologist and she did not personally examine any of the ManorCare patients. The Court finds her simply not qualified.”

Once her testimony was excluded, there was a cascade effect. The statistical extrapolation was based on her review, so the statistical work was also excluded.

According to the order, “The Court also finds that Plaintiff's extrapolation witnesses, Marna Bogan and Donald Edwards, should be excluded. Since Bogan and Edwards reports and testimony are based on evidence from Clearwater, which has now been precluded, their basis for postulation is gone.”

This is a huge lesson about the value of challenging the credibility of experts in cases involving medical necessity. When a contractor uses a reviewer who doesn’t have the same qualifications as the professional rendering the services, it can be worth challenging the reviewer. That statement applies in a variety of situations, including when a nurse reviewer is used to deny physician services.

In addition, there is language in the Medicare manuals that indicate that if the contractor uses a physician to conduct a medical necessity review, the contractor shouldn’t be recouping money in the case because the fact that a physician was necessary suggests the issue was ambiguous and therefore education, rather than recovery of an overpayment, was the proper response. Finally, courts have adopted the “treating physician rule” when analyzing medical necessity. Under this principle, if reasonable physicians can differ about the need for a service, the court should defer to the opinion of the patient’s treating physician.

The bottom line is that if you face a Medicare medical necessity argument, there are many powerful tools you can use to defend yourself.


Disclosure: Glaser reports no relevant financial disclosures.