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Orwell alert--"Medically necessary" now includes "fair utilization"

A recent court decision on the interpretation of federal Medicaid law sounds an ominous note on the rationing front. The 11th Circuit Court has ruled that even though Medicaid is supposed to provide all "medically necessary" treatment, this phrase can be interpreted by the states (since states contribute to Medicaid) using cost-containment considerations to limit utilization. In other words, "medically necessary" doesn't really mean "medically necessary." It also can include completely non-medical considerations. Said the 11th Circuit,

While it is true that, after the 1989 amendments to the Medicaid Act, the state must fund any medically necessary treatment that Anna C.Moore requires, Pittman v. Department of Health and Rehabilitative Services, 998 F.2d 887, 891-92 (11th Cir. 1993), it does not follow that the state is wholly excluded from the process of determining what treatment is necessary. Instead, both the state and Moore’s physician have roles in determining what medical measures are necessary to “correct or ameliorate” Moore’s medical conditions. Rush v. Parham, 625 F.2d 1150, 1155 (5th Cir. 1980);1 42 C.F.R. § 440.230 (“(d) The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.”); see 42 U.S.C. § 1396d(r)(5). A private physician’s word on medical necessity is not dispositive. [My emphasis]

You get that? "Medically necessary" includes "utilization control procedures" as well as determinations of what is, you know, medically necessary.

Wesley J. Smith notes that this decision is unpublished. As far as I can gather (legal eagles, correct me if I'm wrong), this means that lower courts will not officially regard themselves as required to follow this interpretation of the law as precedent. On the other hand, three states didn't join in appealing this case for nothing when a lower court ruled in favor of Mrs. Moore. Clearly, they regard this as a "precedent" in some sense: They believe that they can now limit Medicaid outlays based on something other than medical necessity even though the law says they are supposed to use only medical necessity.

P.S. The term "fair" in my title comes from this analysis by Jeffrey Emanuel, who says,

However, Georgia officials argued Callie’s care was subject to rationing, as the state bureaucrats’ need to ensure Medicaid resources were allocated “fairly” superseded her doctor’s care prescription or her personal medical needs.
HT Secondhand Smoke

Comments (11)

"utilization control procedures"

Well, that's a creepy phrase.

"Well, that's a creepy phrase." Yep

, that's one of the things that makes it so Orwellian, the (mis)use of language . . .

Hi Lydia,

Under the current health care system are poor people turned away from hospitals?
Also, are there programs to help people with large medical bills?

Under the current rules governing the U.S. health care system poor people, including illegal immigrants cannot be turned away from hospitals

Sure, that's not the issue. The issue is that there is a particular phrase in the law: "Medically necessary." It would prima facie refer to what is medically necessary, which is a consideration regarding what is best for the individual medically. The reinterpretation the court suggests is a gross misuse of language and a rather creepy one--it encourages, in effect, a lie. Considering that there is a very real possibility that all or at least far more of us will be forced into government medical care, it behooves us to keep an eye on the ball as far as these reinterpretations of phrases that _sound_ legitimate. Emanuel reports explicitly that the state in its brief objected to the doctor's say-so in the payment for this girl's treatment on the grounds that--heaven forbid--her own individual doctor would advocate her best interests as an individual.

The collectivism in all of this is being swept under the rug by a blatant reinterpretation of phrase that sounds, and was presumably intended by Congress to be, individualistic--"medically necessary."

Thanks for the answers.
One of my teachers is pretty much saying that anyone not for government controlled health care doesn't want poor people to get any medical help when they need it.

Then she went on to say that after having a kid she and her husband were stuck with a large medical bill of $50000, and that if she would have known they would have been stuck with that they probably wouldn't of had children. I didn't know if that was true or not. But I replied, "I'd just hope that my parents wouldn't think that $50000 would be too much to pay for me when I was born." Which got her pretty mad at me.
I'm pretty certain my parents get tax breaks for having me and my sister to file as dependents (I might be saying that wrong, I'm not too familiar with taxes to be honest).

Oh well. THanks for helping.

If the proposal in this article comes to pass, the next bubble economy could be based on life insurance policies. This should be no reason for concern, Wall Street's profit margins dependent on substandard health care and medical research. Between this and the debate over rationing among those the free markets have pronounced uninsurable, we seem to be racing for the bottom.


his means that lower courts will not officially regard themselves as required to follow this interpretation of the law as precedent.

That is what unpublished opinions used to mean---local rules in I believe every Circuit prohibited the citing of unpublished opinions. The Supreme Court struck down those local rules just a couple of years ago (I think on free speech grounds, that litigants have a right basically to make any argument they want). Since then the status of unpublished opinions (many of which now appear in a West reporter dedicated to publishing unpublished opinions---wrap your mind around that and then please explain it to us legal professionals---is somewhat uncertain.

It would still be generally correct to say that an "unpublished" decision has far less precedential value than a published one, although it is not the case that it has absolutely none.

Thanks, Titus. Useful info. Glad I wasn't too far off.

Interestingly, private insurers (the reputed profit-mongering demons of the health care reform debate), explicitly require evidence-based opinions derived from professional experience and literature review to establish medical necessity in cases of disputed coverage claims. And they explicitly prohibit independent reviewers from referencing utilization control or cost when rendering their opinions. This isn't to say they're pristine in their methods; the process of dispute itself sometimes raises barriers that seem designed to discourage those who disagree with their insurance provider from following through with an appeal. But the criteria for those reviews, when they take place, remain based on a strict interpretation of "medical necessity." It looks from this case that federally-funded health care is getting a foot in the door that would otherwise protect us from ideologically based criteria.

This is part of why Obama's notion of establishing a new "effectiveness panel" for Medicare sounds so fishy. An broad commitment to evidence-based medicine, initiated by clinicians and public health experts to improve quality of care and its scientific basis, and informing medical training curricula, has been transforming how health care is delivered for many years now. Why do we need a new body (beyond the FDA, beyond the medical academy, and beyond independent efforts like the Cochrane Database of Systematic Reviews) to arbitrate effectiveness? Why, indeed, unless someone has a mind to insert political and ideological criteria into the equation and resulting policies. Medical Effectiveness Czar, anyone?

I would say that "evidence based medicine" is becoming the latest fad. (Anybody remember when it was "outcome based education"?) I literally heard a reference to it on the phone while I was on hold with my doctor's office the other day, in their recorded advertisements. I'm willing to believe that to some extent this has involved stricter examination of things rather than trying them willy nilly. On the other hand, I see plenty of flying off the handle still going on in the medical profession, some of it at the governmental level (as in the massive swine-flu vaccination effort without, to my mind, sufficient concern and _evidence_ that the problems of 1976 will not be repeated), so I'm a bit skeptical. Any fad can go in pretty much any direction. In some given case a commitment to "evidence based medicine" might prevent a doctor from doing something totally pointless. In another case it might restrain him from doing something "not worth the cost" even when he knows it will help. And I completely agree that putting any such thing in the hands of yet another government committee is a dreadful idea.

Your comment about the HMO reviewers is supported, I should add, by an article Wesley Smith cited recently by one such person who talked expressly about how all the pressure on him was to find out about medical necessity, not about costs.

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