Medical Necessity: You Snooze You Lose

Workers’ compensation defense attorneys and adjusters in Florida are constantly pressed to meet statutory deadlines. 30 days for filing the Response to PFB …. 14 days for issuance of a total denial… 5 days for responding to the one-time change… and the list goes on. But one of the most important, and most forgotten deadlines, is that for denying a medical benefit based on medical necessity.

Claimant treats with the authorized doctor. Authorized doctor recommends injections. Request for injections is sent in writing to the insurance company. Weeks later, and sometimes after a utilization report is completed, the insurance company wants to deny based on medical necessity. What’s missing? Has the insurance company lost the right to deny based on medical necessity? To answer that questions we must take a closer look at F.S. 440.13(3)(d) and (i).

Florida statute section 440.13(3)(d) provides that “A carrier must respond, by telephone or in writing, to a request for authorization 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.” Additionally, section 440.13(3)(I) holds that a claim for a medical benefit costing more than $1,000 must be responded to within 10 days or denial based on medical necessity may be waived. In other words, the carrier has 3 days to notify the provider if the value of the recommendation is less than $1,000 and 10 days if it is more than $1,000. If notification was not sent to the provider, it is deemed to be medically necessary. However, the insurance company does not necessarily have to authorize the requested benefit within 10 days, but it must respond to the request for treatment within 10 days or defenses may be waived.

A recent JCC case was heard by the First DCA on Appeal regarding this very issue. See Terry Pearson v. BH Transfer and Chartis Claims, DCA#: 14-4560. In this case, the Court held that the carrier failed to respond to the request for surgery within 10 days and therefore, the carrier had forfeited their right to contest whether the referral was medically necessary. Therefore, where there is any question regarding the medical necessity of a recommended benefit we recommend responding immediately to the provider indicating that the request has been denied at the present time pending further review. This ensures that the carrier timely denies the requested benefit thereby maintaining the defense, while still allowing time for additional investigation such as utilization review, peer to peer review, conference with the provider, etc.

Of course, workers’ compensation cases can be very complex and interpretation of the statute is often fact specific to the case at hand. If you have a specific claim that you would like to discuss further, please contact our office so we may advise how to respond to the requested benefit.

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