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Medical Necessity—Speak Now or Forever Lose the Right

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By: Mary Frances Nelson, Partner, Fort Myers

The Florida Legislature recently wrapped up its 2017 session with no new workers’ compensation laws. One of the bills presented attempted further regulation of medical necessity and responses by a carrier. A bill proposed by the House actually required that a decision to accept or deny must be made within three days, rather than just acknowledgement of the request/referral. As the law stands, FS 440.13(3)(d) requires a carrier to respond to a written request for authorization within 3 days of receipt or waive medical necessity. This response time is increased to 10 days if the procedure costs more than $1,000. FS 440.13(3)(i). Understandably, adjusters are often inundated with medical reports, either by fax, email, or receipt from a scan system. It is time-consuming to review fully each report or request for authorization that crosses the desk; however, this very task may make or break a claim.

Earlier this month, the First DCA issued an opinion in AT &T Communications v. Rosso, Case No. 1D16-3971, that once again should remind us all of the importance of reviewing requests for authorization. The claimant made multiple requests for benefits including lawn care and home modifications. The bulk of the opinion addresses the home modification issues; however, the DCA did affirm the award of authorization for attendant care, podiatrist, an AFO brace, and an evaluation for special shoes, based solely on the E/C’s waiver of medical necessity for failure to respond to the request timely. Certainly, an award of attendant care can be quite costly, and difficult to dispute on the amount of time and nature of the care provided since medical necessity has been presumed. These facts highlight the importance of protecting the right to defend a claim based on medical necessity.

As it stands, a request for authorization must be in writing, and sent to the carrier by the authorized physician. The law specifically states that notice to the employer is not sufficient to start the clock. The statute also specifically states that the request must come from the physician, so a request from the claimant’s attorney does not start the clock. With that said, it is better to err on the side of caution. No one wants their deposition to be taken to find out when a request was received and when the response was given.

Medically necessary is defined as “appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe.” FS 440.13(1)(l). By failing to respond within the time limits, carriers can lose the ability to address problem situations such as expensive compounding creams, controversial treatments, experimental procedures, or alternative medications. There is no stop gap in place in the statute to ensure that the treatments are legitimate. The statute simply imputes “consent” to medical necessity for failing to act.

Carriers are still entitled to dispute the causal connection for treatment that has been presumed to be medically necessary. Assuming no response to a request was provided in a timely manner, the carrier must then demonstrate a lack of causal connection between the treatment and the accident. This will require medical evidence, and must be presented at the time of the hearing on the issues. Often this becomes a bigger hurdle once necessity is presumed; however, with careful litigation, the defenses can be restructured to accommodate the loss of the medical necessity defense.

From a practical standpoint, document the file when a request is received. To do so, you will need to review every piece of paper that comes in from a physician’s office to determine if there is treatment recommended. If a nurse case manager is acting on behalf of the employer/carrier, the nurse should immediately contact the adjuster to discuss the treatment recommendations. Although not required, written confirmation of your investigation should be sent to the provider within the necessary time frames. Even if the procedure could fall within the 10 day guidelines, do not take a chance. Advise that the recommendation is under investigation. Failure to do so can be costly, from a legal standpoint, as well as a financial standpoint. Losing a defense to medical necessity on issues such as attendant care, or compounding creams can cost thousands of dollars for a claim. Even if there are other defenses available, the ability to preserve a defense for medical necessity is key to cutting down exposure.