Medical necessity
Encyclopedia
Medical necessity is a United States
legal doctrine
, related to activities which may be justified as reasonable, necessary, and/or appropriate, based on evidence-based
clinical standards of care
. Other countries may have medical doctrines or legal rules covering broadly similar grounds. The term clinical medical necessity is also used.
pays for medical items and services that are "reasonable and necessary" for a variety of purposes. By statute, Medicare may only pay for items and services that are "reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member", unless there is another statutory authorization for payment.
Medicare has a number of policies, including National Coverage Determination
s (NCDs) and Local Coverage Determinations (LCDs), formerly known as Local Medical Review Policies (LMRP), that describe coverage criteria.
In a small number of cases, Medicare may determine if a method of treating a patient should be covered on a case-by-case basis. Even if a service is medically determined to be "reasonable and necessary," coverage may be limited if the service is provided more frequently than allowed under Medicare coverage policies.
(also known as marijuana) for medical purposes is a notable 'medical necessity' case. Cannabis is a plant whose active ingredients are widely reported by sufferers to be effective in pain control for various conditions, usually neuropathic in nature, where common painkillers have not had great benefit; however as a Schedule I drug under the Controlled Substance Act, it is illegal and is targeted by government, police, and anti-drug campaigners: in some states, possession is decriminalized for even non-medical purposes, wherein other states possession is a felony offense. In this case the doctrine of medical necessity would be used by a patient who believed marijuana was beneficial to them if charged with use or growing/production of illegal controlled substance relating to marijuana.
In several medical marijuana cases, the patients' physician has been willing to state to the court that the patient's condition requires this medicine and thus that the Court should not interfere. However, the Supreme Court
of United States has outrightly rejected this defense in the landmark case United States v. Oakland Cannabis Buyers' Cooperative
, in which the Court ruled that there was no medical necessity exception to drug laws, and federal government is free to raid, arrest
, prosecute, and imprison patients who are using medical marijuana no matter if the medicine is crucially necessary to them. On the other hand, in Gonzales v. Raich
, the Ninth Circuit Court of Appeals told a sufferer in extreme pain that they could not rely on state law allowing medical use, but if arrested they could seek to use medical necessity as a defence.
In the state of Maryland
, a bill signed by former governor Robert Ehrlich
became law in 2003 permitting patients to use medical necessity defense to marijuana possession in the state. The maximum penalty for these users cannot exceed $100. However, this law does not prevent federal prosecution of patients, as the federal law does not recognize medical necessity. http://www.safeaccessnow.org/article.php?id=2050
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
, related to activities which may be justified as reasonable, necessary, and/or appropriate, based on evidence-based
Evidence-based medicine
Evidence-based medicine or evidence-based practice aims to apply the best available evidence gained from the scientific method to clinical decision making. It seeks to assess the strength of evidence of the risks and benefits of treatments and diagnostic tests...
clinical standards of care
Standard of care
In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care.The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually...
. Other countries may have medical doctrines or legal rules covering broadly similar grounds. The term clinical medical necessity is also used.
USA (Medicare)
MedicareMedicare (United States)
Medicare is a social insurance program administered by the United States government, providing health insurance coverage to people who are aged 65 and over; to those who are under 65 and are permanently physically disabled or who have a congenital physical disability; or to those who meet other...
pays for medical items and services that are "reasonable and necessary" for a variety of purposes. By statute, Medicare may only pay for items and services that are "reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member", unless there is another statutory authorization for payment.
Medicare has a number of policies, including National Coverage Determination
National coverage determination
A national coverage determination is a nationwide determination of whether Medicare will pay for an item or service. For more information see http://www.cms.hhs.gov/mcd/overview.asp....
s (NCDs) and Local Coverage Determinations (LCDs), formerly known as Local Medical Review Policies (LMRP), that describe coverage criteria.
In a small number of cases, Medicare may determine if a method of treating a patient should be covered on a case-by-case basis. Even if a service is medically determined to be "reasonable and necessary," coverage may be limited if the service is provided more frequently than allowed under Medicare coverage policies.
Medical use of marijuana
The use of cannabisCannabis
Cannabis is a genus of flowering plants that includes three putative species, Cannabis sativa, Cannabis indica, and Cannabis ruderalis. These three taxa are indigenous to Central Asia, and South Asia. Cannabis has long been used for fibre , for seed and seed oils, for medicinal purposes, and as a...
(also known as marijuana) for medical purposes is a notable 'medical necessity' case. Cannabis is a plant whose active ingredients are widely reported by sufferers to be effective in pain control for various conditions, usually neuropathic in nature, where common painkillers have not had great benefit; however as a Schedule I drug under the Controlled Substance Act, it is illegal and is targeted by government, police, and anti-drug campaigners: in some states, possession is decriminalized for even non-medical purposes, wherein other states possession is a felony offense. In this case the doctrine of medical necessity would be used by a patient who believed marijuana was beneficial to them if charged with use or growing/production of illegal controlled substance relating to marijuana.
In several medical marijuana cases, the patients' physician has been willing to state to the court that the patient's condition requires this medicine and thus that the Court should not interfere. However, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
of United States has outrightly rejected this defense in the landmark case United States v. Oakland Cannabis Buyers' Cooperative
United States v. Oakland Cannabis Buyers' Cooperative
In United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 , the United States Supreme Court rejected the common-law medical necessity defense to crimes enacted under the federal Controlled Substances Act of 1970, regardless of their legal status under the laws of states such as...
, in which the Court ruled that there was no medical necessity exception to drug laws, and federal government is free to raid, arrest
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
, prosecute, and imprison patients who are using medical marijuana no matter if the medicine is crucially necessary to them. On the other hand, in Gonzales v. Raich
Gonzales v. Raich
Gonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
, the Ninth Circuit Court of Appeals told a sufferer in extreme pain that they could not rely on state law allowing medical use, but if arrested they could seek to use medical necessity as a defence.
In the state of Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, a bill signed by former governor Robert Ehrlich
Robert Ehrlich
Robert Leroy "Bob" Ehrlich, Jr. is an American politician who served as the 60th Governor of Maryland from 2003 to 2007. A Republican, he became governor after defeating Democratic opponent Kathleen Kennedy Townsend, a member of the Kennedy family, 51% to 48% in the 2002 elections...
became law in 2003 permitting patients to use medical necessity defense to marijuana possession in the state. The maximum penalty for these users cannot exceed $100. However, this law does not prevent federal prosecution of patients, as the federal law does not recognize medical necessity. http://www.safeaccessnow.org/article.php?id=2050
External links
- Your Medicare Coverage from medicare.gov
- Medicare Coverage Database which includes NCDs, LMRP/LCDs, as well as NCAs & CALs, from cms.hhs.gov
- Physician Fee Schedule lookup at cms.hhs.gov
- What is medical necessity? by Nancy W. Miller, as found in the Physician's News Digest