Morgan’s Tip of the Week – Medical Necessity Defense

Greetings and welcome to 2019,

In the last week I have had the “3-day” and “10-day” rule argued in two cases, so here is a refresher.

Under 440.13(3)(d) and (i), the carrier has to “respond” to a written request from the authorized provider in 3 days (if the treatment costs less than $1,000) or 10 days ($1,000 +).  If you fail to respond, we waive the defense of medical necessity.

This is very significant.   For most medical care, we only have 2 possible defenses.  The claimant does not need it (not medically necessary) or its not our fault (not major contributing cause).  If you don’t respond, we lose ½ of our defenses.  And many times that is all we have…if there are no priors or unrelated conditions, we really don’t have an MCC defense.  We can buy a major surgery by simply not responding.

What is required in a “response”?   The statute doesn’t say, and neither do the cases.   I recommend a faxed/emailed letter to the provider saying you have received it and it is under review.  That is sufficient if you can’t make the determination in the 3 or 10-day window.

Especially on surgeries, its essential that we respond.

Here is the statute and a good case on the issue:

440.13(3)(d) A carrier must respond, by telephone or in writing, to a request for authorization from an authorized health care provider by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. All such requests must be made to the carrier. Notice to the carrier does not include notice to the employer.

i) Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the department identifies by rule is not valid and reimbursable unless the services have been expressly authorized by the carrier, unless the carrier has failed to respond within 10 days to a written request for authorization, or unless emergency care is required. The insurer shall authorize such consultation or procedure unless the health care provider or facility is not authorized, unless such treatment is not in accordance with practice parameters and protocols of treatment established in this chapter, or unless a judge of compensation claims has determined that the consultation or procedure is not medically necessary, not in accordance with the practice parameters and protocols of treatment established in this chapter, or otherwise not compensable under this chapter. Authorization of a treatment plan does not constitute express authorization for purposes of this section, except to the extent the carrier provides otherwise in its authorization procedures. This paragraph does not limit the carrier’s obligation to identify and disallow overutilization or billing errors.

Elmer v. Southland Corp., 5 So. 3d 754 (Fla. 1st DCA 2009)

Claimant’s authorized treating physician sent multiple requests to the Employer/Carrier for authorization for a referral to a pain management specialist. The Employer/Carrier did not respond to the authorized physicians request at all. The JCC found that not only did the Employer/Carrier fail to timely respond to the repeated requests by the Claimant’s authorized treating physician for a referral to a pain management specialist, but failed to respond at all. Despite this finding, the JCC denied the Claimant’s request for this referral because he found the medical evidence showed the referral was not reasonably and medically necessary.

The first DCA reversed the JCC decision. The Court agreed with Claimant’s position that,  pursuant to either section 440.13(3)(d) or (i), Florida Statutes (2002), the E/C was estopped from arguing the referral was not medically necessary because it failed to timely respond to the doctor’s written referral requests. The Court reasoned that because the E/C here failed to respond to the authorized treating doctor’s written requests for a referral to a pain management specialist, the E/C violated both sections 440.13(3)(d), and (i) and thus it was error for the JCC to deny authorization of a pain management specialist on the ground it was not reasonably and medically necessary.

Morgan Indek | Partner