Goodman v. Sullivan

• Citation: 891 F.2d 449
• Decision Date: 12 December 1989
• Docket Number: D,No. 230,230
• Parties: , Medicare & Medicaid Guide P 38,306 Ben GOODMAN, Plaintiff-Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee. ocket 89-6112.
• Court: U.S. Court of Appeals — Second Circuit

Page 449

891 F.2d 449

28 Soc.Sec.Rep.Ser. 120, Medicare & Medicaid Guide

P 38,306

Ben GOODMAN, Plaintiff-Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services Defendant-Appellee.

No. 230, Docket 89-6112.

United States Court of Appeals Second Circuit.

Argued Oct. 24, 1989.

Decided Dec. 12, 1989.

John F. McHugh, New York City, for plaintiff-appellant.

Linda A. Riffkin, Sp. Asst. U.S. Atty., Benito Romano, U.S. Atty., S.D. of N.Y., Edward T. Ferguson, III, Asst. U.S. Atty., New York City, for defendant-appellee.

Before OAKES, Chief Judge, and KEARSE and ALTIMARI, Circuit Judges.

PER CURIAM:

Plaintiff, Ben Goodman, appeals from an order of the United States District Court for the Southern District of New York, John M. Walker, Jr., Judge, dismissing plaintiff's challenge to a regulation under the federally funded health insurance program commonly known as "Medicare Part B," see 42 U.S.C. §§ 1395j-1395w-3 (1982 & Supp. V 1987), that excludes coverage for experimental, investigative, or unproven procedures. See Medicare Part B Carrier's Manual, Coverage Issues Appendix; Medicare Part B Intermediary Letter, No. 77-7, cited in Decision of Medicare Hearing Officer (No. 8801301001) (May 11, 1988). We affirm the district court's order.

Goodman alleges that he underwent a magnetic resonance imaging ("MRI") procedure as a matter of medical necessity in order to diagnose the cause of his speech impediment problem. Unable to determine from X-rays or CAT scans whether the speech impediment was traceable to a mild stroke, Goodman's doctor determined that further diagnostic procedures were required. Because he considered an angiogram too risky, the doctor recommended Goodman's claim for $675 in reimbursement for the MRI procedure was denied on May 11, 1988 by a hearing officer. Subsequently, he filed an action in the district court, seeking review of the denial of benefits pursuant to 42 U.S.C. § 405(g) (1982). The district court dismissed the action by judgment on the pleadings on April 17, 1989. 712 F.Supp. 334.

                that Goodman undergo an MRI procedure.   Goodman underwent the MRI procedure on February 8, 1985, even though he was aware that MRI was not then covered under the Medicare Part B program.   See Medicare Part B Carrier's Manual, Coverage Issues Appendix § 50-12(E) (June 1985).   Several months later, on November 22, 1985, the Secretary of Health and Human Services ("the Secretary") extended coverage to MRI procedures.   See Medicare Part B Carrier's Manual, Coverage Issues Appendix § 50-13 (Nov. 1985), reprinted in 54 Fed.Reg. 34,584 (Aug. 21, 1989)
                

On appeal, Goodman contends that the Secretary's regulation violates statutory mandates requiring the Secretary to provide coverage for all medically necessary services and prohibiting the Secretary from using the Medicare program to supervise or control the practice of medicine.

DISCUSSION

Under the Medicare program, Congress has excluded from coverage all items and services "not reasonable and necessary for the diagnosis or treatment of illness or injury." 42 U.S.C. § 1395y(a)(1)(A) (Supp. V 1987). In interpreting this provision, pursuant to his authority to prescribe regulations, see 42 U.S.C. § 1395hh(a) (Supp. V 1987), the Secretary of Health and Human Services has prohibited payment of benefits for any experimental, investigational, or unproven treatment or diagnostic method not yet generally accepted in the medical profession. See Medicare Part B Carrier's Manual, Coverage Issues Appendix; Medicare Part B Intermediary Letter, supra, No. 77-7.

Goodman's first ground of appeal is that because Congress requires Medicare to cover all medically necessary services, the Secretary may not deny coverage for experimental or unproven procedures that a physician determines to be medically necessary. We are not directed to any provision in the Medicare statute expressly requiring coverage for all medically necessary services. Moreover, we do not think that such coverage is mandated by implication. The prohibitory language of § 1395y(a)(1)(A), which bars benefits for services "not reasonable and necessary" for diagnosis or treatment, is not reasonably interpreted as an affirmative mandate to extend coverage to all necessary services.

Goodman relies heavily on Rush v. Parham, 625 F.2d 1150 (5th Cir.1980). Although the Rush court drew some parallels between the two programs, the case before it was a challenge under the Medicaid program, not the Medicare program. The court never reached the issue of whether Medicaid must cover all medically necessary procedures. See id. at 1155 & n. 9. ¹ Rather, it found that even if Medicaid required such coverage, a regulation "may adopt a definition of medical necessity that places reasonable limits on a physician's discretion ... [such as] a ban against reimbursement for experimental forms of treatment...." Id. at 1154-55 (footnote omitted). Moreover, the court nowhere stated, as Goodman contends, that a policy banning reimbursement for experimental forms of treatment must be subject to an exception for exigent circumstances. Exceptions were permissible only if the policy itself provided for exceptions. See id. at 1157. Finally, the court acknowledged that Congress intends the physician to be a key figure in determining what services are needed and consequently reimbursable, but deference to a physician's judgment is appropriate only in the absence of a policy barring coverage for experimental procedures. See id. ²

Because we find the Medicare statute does not require coverage for all medically necessary procedures, it is not necessary to consider, as Goodman urges, whether the Secretary's regulation prohibiting coverage for experimental procedures impermissibly establishes an irrebuttable presumption that such procedures are not medically necessary, and whether the regulation must allow exceptions based on individual...