Updated on: September 26, 2019

Court decision upholds provider sovereignty over determinations of medical necessity: Part II 

Original story posted on: September 25, 2019

The ruling focused on key hospice admissions.

A recent RACmonitor article focused on the AseraCare case, wherein the 11th Circuit Court of Appeals concluded that if reasonable physicians differ about the medical necessity of care, a claim can’t be false.

There were two other elements of the case worth emphasizing. Regular readers will have seen these points before. They both reflect advice that Fredrikson & Byron colleagues and I have been giving for years. However, because it is common to hear people claiming to be “experts” taking the contrary position at conferences and in litigation, it is good to focus on language directly from the unanimous 11th Circuit decision to correct two major myths.

The first involves the enforceability of local coverage determinations or LCDs. In AsceraCare the government’s expert mechanically compared each patient to the LCD. By contrast, Aseracare’s experts did not formulaically apply the LCD, instead taking a holistic approach, asking whether the patient seemed terminally ill. Who was right? The AseraCare expert. The Court said that “the district court correctly stated in its instructions to the jury that LCDs are ‘eligibility guidelines’ that are not binding and should not be considered ‘the exact criteria used for determining’ terminal illness.”

This should be perfectly clear from the decision: LCDs are not binding. You should not be refunding money simply because care didn’t meet an LCD. If your physicians thought the care was appropriate, the fact that it fell outside the LCD doesn’t render the care uncovered.

The second question relates to the role of documentation. Hopefully, you understand that the expression “if it isn’t written, it wasn’t done” is not legally correct. (If not, please send me an email and I can send you information explaining the law.) Missing documentation in an evaluation and management (E&M) service doesn’t require denial of the claim if the service was provided as billed. In AsceraCare the 11th Circuit looked at the documentation of the patient’s terminal illness. The Court asserted that “to conclude that the supporting documentation must, standing alone, prove the validity of the physician’s initial clinical judgment would read more into the legal framework than its language allows.” The Court went on to say that “Congress said nothing to indicate that the medical documentation presented with a claim must prove the validity of the clinical judgment on an after-the-fact review.”

Even if the medical record doesn’t give clear, conclusive proof of the basis for coverage, the claim can still be payable.

Neither of these principles are revolutionary. We have made these points for years on these broadcasts. But people don’t always agree. To those people, I would offer a short poem quoting rock legend Ric Ocasek of the Cars, who died last week: “you might think I’m foolish, or maybe it’s untrue,” but documentation isn’t essential, and towards an LCD you needn’t be reverential.

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.


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