What’s So Interesting
About Medical Necessity?
Interesting Case Presentation
Saint Francis Hospital & Medical Center
Dept. of Pediatrics
October 30, 2009
Jay E. Sicklick, Esq.
Center for Children’s Advocacy
Hartford, Connecticut
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Interesting Case – The Parameters

Patient is a Medicaid Recipient

Medicaid = HUSKY= Title XIX
Patient is birth through 20
 Patient’s pediatric/family
medicine/psychiatric, etc. clinician has
requested a medically related treatment,
care or service o/b/o patient
 This request is subject to some sort of
review by the insurance carrier/primary
payer

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What is Medical Necessity?
AN Interesting Case
AN Interesting Case
7 y.o. girl - seen in primary care since birth.
 Primary diagnosis is Pervasive Developmental
Disorder (PDD).
 Autistic tendencies & very low IQ
 Diet is extremely limited – like sweet and salty
foods only (chips, etc.)
 PCP believes that nutrition is compromised
 Would like to prescribe an OTC nutritional
supplement (Ensure/Pediasure)
 R/Q made to MCO
 R/Q “denied” as not “medically necessary”
 It this “medically necessary” care and treatment?
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
ANOTHER Interesting Case
ANOTHER Interesting Case
14 y.o. boy with dx of spina bifida
 Mobility in h/h is at issue
 Lives alone with mother
 Treating provider and PT believe “track”
system in house will provide better
mobility in h/h
 Request made to MCO as a DME
 Request DENIED?
 Is this “medically necessary?”

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Medical Necessity:
The Threshold Questions
What is Medical Necessity (“MN”)?
 Is there a standard for defining MN?
 Are pediatric patients evaluated under the
same MN standard as adults?
 What is the definition of MN?
 Who/What is the gate keeper for MN?
 Is there anything I (the pediatric provider)
can do to ensure my medical judgment is
deferred to in the “ask” for MN care?

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Medical Necessity:
The Threshold Questions
If my “ask” is denied, what is my recourse
for the patient?
 Can legal assistance be helpful in the
event the request is denied?
 What is the “appeal” process?
 Are appeals usually successful?
 What can I do next time to ensure that
the original request is granted (if
anything)?

mlpp
Medicaid: A Refresher
Medicaid: A Refresher
Title XIX of the Social Security Act for =
Medical Assistance for the Poor
 Not Medicare - Title XVIII = Federal
Health Insurance Linked to Social Security
 Categorical Eligibility = Elderly, Blind,
Disabled, Pregnant women & Children
 De-linked from Cash Assistance &
Resources

Medicaid: A Refresher
Vendor Payment
System - hospitals,
nursing homes,
pharmacies,
doctors & dentists
are reimbursed
 Participation by
provider voluntary
 No cost sharing
allowed theoretically

How Medicaid Works:
The Federal-State Partnership
How the Partnership Works:
The Federal Side
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Federal oversight
through central
agency = CMS
Promulgates
regulations, guidelines
& statutes
Issues waivers
Reimburses from 50%
to 83% of state costs
Legal principles = due
process
The Partnership:
State Administration
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State Agency Designated in Conn.
As DSS
The “Medicaid Plan”
Must conform to
federal law and
apply statewide
Medicaid Advisory
Committee req’d
(MMCC)
Managed Care: Medicaid’s Panacea

State’s may contract with managed care
entities to provide services (per CMS
waiver):
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PCCM – case management w/monthly fee by
M.D.’s, group practices, APRN’s, PA’s or
nurse midwives
MCO’s – contracts w/HMO’s, etc. w/capitation
payment per enrollee
State’s can r/q most individuals to enroll in
managed care programs (need choice of at
least 2 entities
Managed Care Players
The Return to Managed Care:
Connecticut’s Grand Experiment
Children eligible for MA coverage must
elect MCO for “coverage” or may be part
of a PCCM practice through DSS
 MCO’s contract with State DSS
 Three MCO’s presently provide managed
care coverage for state’s HUSKY
population:
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CHN
AETNA Better Health
AmeriChoice by United Healthcare
The Return to Managed Care:
Connecticut’s Grand Experiment

PCCM available in:
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Waterbury
Windham

Hartford & New Haven expansion planned
MCO’s are at-risk.
 Approve or deny coverage for services
pursuant to DSS contract and state and
federal regulations.
 Fee for service (“Straight Title XIX”) still
available in limited circumstances …

HUSKY Basics

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Connecticut’s
Children’s Medicaid
Plan (“A”)
Birth up to 19 y.o.
Income based (family
or self) – no resource
test
98% Insured through
MCO’s (BCFP, Health
Net & CHN)
Straight Title XIX
available
HUSKY Basics (cont)

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No co-pays or
premiums
“Medically
necessary services”
must be covered
EPSDT requires
periodic screening,
diagnosis & treatment
Rights of appeal &
legal challenges
inviolate
Who is NOT Eligible for HUSKY?
Children in U.S. on vicarious visas (e.g.
parent work visas)
 Undocumented (illegal) Immigrant
children
 Families income > 185% FPL

Immigrants and HUSKY

Eligibility based on residency status:
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Application Process

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Lawful Permanent Resident (LPR)
Refugees and asylees
Certain battered spouses & children
Same for legal immigrants as they are for US
Citizens
CT Resident
Income guideline (185% child, 150% parent
Will NOT be considered Public Charge
Changes in the AIR
Medical Necessity:
Defining The Playing Field

Two Part Analysis of Medical Necessity:

Definition of MN in State Regulations

Definition of MN in EPSDT
Medical Necessity – State Regulations
Previous Definitions (before 10/1/09):

"Medical Necessity or Medically Necessary" means
health care provided to correct or diminish the
adverse effects of a medical condition or mental
illness; to assist an individual in attaining or
maintaining an optimal level of health; to diagnose
a condition; or prevent a medical condition from
occurring.

"Medical Appropriateness or Medically
Appropriate" means health care that is provided in a
timely manner and meets professionally recognized
standards of acceptable medical care; is delivered in
the appropriate medical setting; and is the least
costly of multiple, equally-effective alternative
treatments or diagnostic modalities.
Medical Necessity – State Regulations
Language change – October 2009
 Definition is:
“Medically necessary services” means those health services
required to prevent, identify, diagnose, treat, rehabilitate
or ameliorate a health problem or its effects, or to maintain
health and functioning, provided such services are:

1.
2.
3.
4.
consistent with generally accepted standards of medical
practice
clinically appropriate in terms of type, frequency, timing, site
and duration;
demonstrated through scientific evidence to be safe and
effective and the least costly among similarly effective
alternatives, where adequate scientific evidence exists;
efficient in regard to the avoidance of waste and refraining
from provision of services that, on the basis of the best
available scientific evidence, are not likely to produce benefit.
Tracking the Changes

PRE-CHANGE:

to assist an individual in
attaining or maintaining
an optimal level of health

POST CHANGE:

to prevent, identify, diagnose,
treat, rehabilitate or
ameliorate a health problem
or its effects, or to maintain
health and functioning


demonstrated through
scientific evidence to be safe
and effective and the least
costly among similarly
effective alternatives, where
adequate scientific evidence
exists;
efficient in regard to the
avoidance of waste and
refraining from provision of
services that, on the basis of
the best available scientific
evidence, are not likely to
produce benefit.
What Does It All Mean?
MCO’s & DSS (fee for service cases)
review each request pursuant to the MN
standards
 Provide a written response to the patient if
denied
 Allow opportunity for an internal review
and, if necessary, an impartial hearing
pursuant to Due Process requirements
 Requests must also be reviewed pursuant
to federal EPSDT standard

EPSDT
The problem is to discover, as early as possible, the
ills that handicap our children. There must be
continuing follow-up treatment so that handicaps
do not go untreated. . . . We must enlarge our
efforts to give proper eye care to a needy child.
We must provide health to strengthen a poor
youngster’s limb before he becomes permanently
disabled. We must stop tuberculosis in its first
stages before it causes serious harm.
- - President Lyndon B. Johnson Introducing the
EPSDT Legislation 90th Cong., 1st Sess. (1967).
What is EPSDT, or;
Why does it make better pediatricians?

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Early periodic screening, diagnosis, and
treatment
Federal mandates for screening at periodic
intervals
Medical, vision, hearing & dental, immunizations,
lab tests (including PB), health education
Mandate for coverage of treatment to “correct or
ameliorate” physical/mental illness during the
periodic or interperiodic screens
Outreach & transportation
Medical Necessity Under Federal Law

Medical necessity Definition requires
coverage of

“necessary health care, diagnostic services,
treatment, and other measures . . . to correct
or ameliorate defects and physical and mental
illnesses and conditions[.]
42 U.S.C. § 1396d(r)(5)

Applies to physical and behavioral health
EPSDT Scope of Benefits
42 U.S.C. §§ 1396d(r)(5), 1396d(a)

Mandatory services:
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Inpatient hospital services
Outpatient hospital services
Rural health clinic services
Federally-qualified health center services
Laboratory and X-ray services
Nursing facility services for adults
EPSDT services
Physician services
Family planning services and supplies
Physician services
Medical and surgical services furnished by a dentist (with
limitation)
Nurse-midwife services
Pediatric nurse practitioner or family nurse practitioner
services
Home health services for persons eligible to receive nursing
facility services
EPSDT Scope of Benefits – cont.

Optional services (for adults, mandatory under EPSDT when necessary to
correct or ameliorate an illness or condition):

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Home health care services (includes nursing services, home health aides,
medical supplies and equipment, physical therapy, occupation therapy,
speech pathology, audiology services)
Private duty nursing services
Clinic services
Dental services
Physical therapy and related services
Prescribed drugs
Dentures
Prosthetic devices
Eyeglasses
Other diagnostic, screening, preventive, and rehabilitative services, including any medical or
remedial services recommended for the maximum reduction of physical or mental disability
and restoration of an individual to the best possible functional level
Intermediate care facility for the mentally retarded services
Inpatient psychiatric hospital services for individuals under age 21
Hospice care
Case-management services
TB-related services
Respiratory care services
Personal care services
Primary care case management services
Any other medical care, and any other type of remedial care recognize under state law,
specified by the Secretary (of DHHS)
So – What Does it All Mean?
Advocacy Strategies:
Making the Case for Medical Necessity

Three part strategy:

Anticipate

Advocate

Appeal
Reminder – AN Interesting Case









7 y.o. girl - seen in primary care
since birth.
Primary diagnosis is Pervasive
Developmental Disorder (PDD).
Autistic tendencies & very low IQ
Diet is extremely limited – like
sweet and salty foods only (chips,
etc.)
PCP believes that nutrition is
compromised
Would like to prescribe an OTC
nutritional supplement
(Ensure/Pediasure)
R/Q made to MCO
R/Q “denied” as not “medically
necessary”
It this “medically necessary” care
and treatment?

ANTICIPATE
MN Advocacy – Anticipate


What Do you Need to do to make sure your
patient receives the care/treatment requested?
What are the facts that make this patient’s case
compelling?
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Previous treatments tried, results produced, etc.
Think of alternatives and how you can address those
(HMO response)
Document successes in other patients
Think about how this case might be unique/special
MN Advocacy – Advocate

Write a Letter Advocating for Your Request


Explain who you are
State the language of the law … i.e. why this
service/treatment is medically necessary


“Pat Patient needs this nutritional supplement
because I expect that it will enable her to maintain
health an functioning, it is consistent with generally
accepted standards of practice, and it is clinically
appropriate in terms of type, frequency, etc …
Include specifics & details relating to the
patient’s illness or disability
MN Advocacy – Advocate

Write a Letter Advocating for Your Request

The details:



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Explain how the treatment will prevent an illness or
disability, or
Explain how it will ameliorate a health problem or its
affects, or
Explain how it will maintain health or functioning
(maintain functional capacity)
Conclude by indicating the medical
consequences which you believe will result if
the care/treatment/prescription is denied.
Sample Letter MN Letter
October 30, 2009
Community Health Network
11 Fairfield Boulevard
Wallingford, CT 06492
Re: Pat Patient, 2/22/2004, Plan # 11111
Greetings:
I am writing to request authorization for Pat Patient to receive Pediasure for the
diagnosis of failure to thrive. This request is medically necessary because:
KEY FACTS FOR PP INCLUDED HERE …
The provision of this important supplement will, or is reasonably expected to allow Pat to
maintain health and functioning at her present level. Specifically (INCLUDE FACTS
ABOUT PAT’s DIET ETC.)
If you need any further information, please do not hesitate to call me at (860) 714-1000.
Very truly yours,
PCC Provider
License # 123456789
Phone
Fax
MN Advocacy – Appeal
Responses to Denials:
 HMO’s

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Informally advocate with the UR rep.
Informally advocate with the medical director
(usually not a pediatrician)
Advise family to request an informal review
Refer the family to the MLPP for formal appeal
Formal appeal with DSS hearing officer (fair
hearing)
MN Advocacy – Appeal

Responses to Denials:

DSS

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Call the Medical Director (Rob Zavoski)
Refer the case to the MLPP
Initiate process of formal appeal (fair hearing)
Medical Necessity – A Review
The standard by which Medicaid care and
treatment is judged
 NOT a subjective standard – but subject
to clinical judgment
 Clinician has tools to advocate before the
decision is made
 Advocacy shifts burden to the decision
maker
 Make your case based on facts & details –
don’t assume a denial is appropriate
