James Weisman
SVP & General Counsel
United Spinal Association
Power wheelchair users take notice – a Federal District Court in Vermont has decided a case against a power wheelchair user which is a sign of things to come.
As part of United Spinal’s www.rightwheelchair.org website and our campaigns to reform systemic practices which make it difficult to obtain high tech wheelchairs we’ve indicated that third party payers including private insurance companies, state Medicaid agencies and the Dept. of Veterans Affairs will emulate Medicare if we allow the agency to deny people necessary equipment.
It’s happening and here’s a good example: the plaintiff in the case, Richard Durgin, sued Blue Cross Blue Shield of Vermont (BCBS). Mr. Durgin’s doctor had prescribed a motorized chair with a “standing” feature. Mr. Durgin operates a small business and buys his own health insurance. The court found that the “standing” feature was not a medical necessity despite the testimony of the plaintiff’s doctor. Mr. Durgin’s contract of insurance provided durable medical equipment that is “medically necessary”. It defined “medically necessary” as:
- Requiring a prescription from a physician
- Primarily and customarily used only for medical purposes
- appropriate for use in the home
- Designed for long and repeated use and
- Not generally useful to a person who is not ill or injured.
BCBS, the insurer, took issue with Durgin’s physician stating the “standing” feature is not primarily and customarily used only for medical purposes, however his physician 
stated that the component was necessary because it reduced shearing of the skin, preventing dicubitis ulcers (bed sores), decreased back pain, decreased spasticity in the legs and maintained bone density. BCBS stated that there was not sufficient literature to prove the medical necessity of the benefits of the “standing” option. BCBS also found that the standing option provided comfort and convenience beyond what was medically required. The court upheld the decision of the insurer.
The Court felt that the contract of insurance between Mr. Durgin and BCBS should control the situation. It states “even if a provider prescribes, …. recommends or approves a service or supply, (BCBS) may not consider it medically necessary”. The court went on to say that the only standard that the court can use to review the BCBS’s decision was whether the insurer’s determination was arbitrary and capricious. The court found that it was not because an independent medical reviewer supported the insurance company’s determination. A consulting physician hired by BCBS determined the standing feature was “not medically indicated” because it had “no proven therapeutic benefit”. The court found that reasonable people could disagree about the result but the insurer’s behavior was not arbitrary and capricious because it was supported by the consultant. The testimony of Mr. Durgin’s physician about the benefit to Mr. Durgin was negated by the consultant who did not know Mr. Durgin but reviewed the literature available regarding the “standing” feature.
Medicare’s restrictive policies coupled with unreviewable insurance company decisions will drive manufacturers of high tech equipment out of the business. Research and development of new products will be reduced as the market shrinks. Mobility and independence are the goals of consumers only, it appears.
