The Massachusetts Appeals Court recently vacated and remanded a Massachusetts Superior Court decision which allowed MassHealth to reject a request for a surgical procedure purely on the grounds that they found it to be a "retroactive request." The plaintiff, 15-year-old Ashley Shaw, suffered from a fat pad on her neck and shoulder area known as a "buffalo hump" as a side effect of medications used in treating her life-long HIV-AIDS. In addition to being disfiguring, the hump caused Ashley to have abnormal posture, difficulty in swallowing, back and neck pain, headaches, and an inability to sleep without medication.
In May of 2004, Ashley's doctor's determined that removing her hump was a medical necessity and subsequently requested authorization from MassHealth to perform the surgery. Attached to the request were photos of Ashley's hump, a note observing that the request was for a minor child under the age of 18 with "extenuating medical circumstances," a letter from Ashley's attending physician at Children's Hospital Medical Center stating that the surgery was a medical necessity, and a letter from another one of Ashley's doctors providing additional clinical information and further stating that the surgery was scheduled for May 27, 2004. While the appeal was pending, Ashley's mother, believing the surgical procedure to be medically necessary, assumed financial responsibility.
At the hearing before the Division of Medical Assistance on November 1, 2004, Dr. Gail LoPreste, who testified for MassHealth, stated that the request was initially denied because it was not found to be within their definition of a "medical necessity." Dr. LoPreste further stated that the request would have been denied regardless of its status due to the fact that the procedure had already been completed, making the request retroactive. The hearing officer made no findings on the medical necessity of the request because the procedure occurred without prior authorization and hence in his view the claim was properly denied. The Superior Court disagreed.
"To treat prior authorization as overriding all other considerations is not consistent with the regulation's purpose. . . . While we give deference to an agency's interpretation of its own regulations, 'courts will not hesitate to overrule agency interpretations when those interpretations are arbitrary, unreasonable, or inconsistent with the plain terms of the regulation itself." The court rejected MassHealth's interpretation of the regulation, noting that by reading the plain language of 130 Code Mass.Regs. 443.408(A)(1) & (2), "it is apparent that it principally is concerned with the medical necessity of a request as the controlling prerequisite for payment of services for certain procedures not otherwise covered by MassHealth." The court also recognized that since the request was filed prior to the provision of services, and is still pending, it can't be considered a "retroactive request."
Ultimately the Appeals Court stated that "since there was no hearing on the merits by MassHealth as to the medical decision, the matter is remanded to MassHealth for a review of the medical necessity of the procedure."
Shaw v. Secretary of the Executive Office of Health & Human Services, et al. (Mass. Ct. App., No. 06-P-1599, Feb. 19, 2008).
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