Samuel Ison v. Department of Health Services

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 14, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2260 Cir. Ct. No. 2018CV16

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

SAMUEL ISON,

PLAINTIFF-APPELLANT,

V.

DEPARTMENT OF HEALTH SERVICES AND DIVISION OF
MEDICAID SERVICES,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Forest County:
JAMES R. HABECK, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2260

¶1 PER CURIAM. Samuel Ison appeals an order denying his WIS.
STAT. ch. 227 (2017-18)1 appeal from the administrative denial of a Medicaid
claim. Ison challenges his health maintenance organization’s (HMO) use of
InterQual criteria to deny his requested prior authorization for back surgery and a
decision by the Department of Health Services to uphold the denial of the prior
authorization request as medically unnecessary. We conclude Ison forfeited the
first issue regarding the use of InterQual criteria and there is substantial evidence
in the record to support the Department’s decision. We therefore affirm.

BACKGROUND

¶2 Doctor Andrew Beaumont, a neurosurgeon who was seeing Ison for
ongoing back pain related to multiple lumbar disc problems, recommended Ison
undergo a laminectomy with fusion. Ison sought Medicaid coverage for the cost
of the recommended surgery. As part of the process, Ison’s primary care
physician submitted a prior authorization request on Ison’s behalf to Ison’s HMO,
Network Health Plan. Ison also obtained a second opinion from another doctor
recommending the surgery.

¶3 The HMO obtained opinions from two neurological surgeons
through a referral to Centene Corporation regarding whether the proposed
procedure was medically necessary. The Centene doctors concluded Ison did not
meet the criteria for a laminectomy with fusion set forth in a set of proprietary,
commercially available InterQual guidelines used by health care providers to
determine the appropriate care for given medical situations. After reviewing the

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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surgeons’ reports and Ison’s case file, the HMO’s medical director concluded the
proposed surgery was medically unnecessary and denied the request for prior
authorization.

¶4 Ison sought administrative relief through the HMO’s grievance
procedure and by an appeal to the Department of Health Services, Division of
Medical Services. When those efforts were unsuccessful, he filed the present
lawsuit seeking judicial review pursuant to Chapter 227 of the Wisconsin Statutes.
The circuit court upheld the Department’s decision approving the denial of prior
authorization, and Ison appeals.

DISCUSSION

¶5 Ison raises two issues on appeal. First, he contends the HMO and
the Department’s reliance on InterQual criteria constituted a material restriction of
the general definition of medical necessity as set forth in WIS. ADMIN. CODE
§ DHS 101.03(96m) (May 2019), such that 42 U.S.C. § 300gg-15(d)(4) (2018)
required the HMO to predisclose the InterQual criteria as an amendment to its
contract to provide Medical Assistance benefits. Second, Ison argues the evidence
in the record does not support the Department’s determination that the proposed
back surgery was not medically necessary as defined by § DHS 101.03(96m).

¶6 As a threshold matter, the Department asserts Ison forfeited his
challenge to the use of InterQual criteria without predisclosure by not raising the
issue in the administrative proceedings until his petition for a rehearing, which
was after the Department had already rejected his claim. See generally, State v.
Outagamie County Bd. of Adjustment, 2001 WI 78, ¶55, 244 Wis. 2d 613, 628
N.W.2d 376 (to preserve an issue for judicial review, a party must timely raise it
before the administrative body). Ison acknowledges that he raised his

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predisclosure argument for the first time in his rehearing petition, but he argues
that the issue was preserved because the relevant portion of the HMO contract was
placed in the record prior to the hearing. We agree with the Department that a
new legal theory does not provide grounds for a rehearing in an administrative
proceeding, which can be granted only upon a showing of a material error of law
or fact or the discovery of new evidence. See WIS. STAT. § 227.49(3).

¶7 Moreover, because Ison did not raise his predisclosure argument
prior to the hearing, the Department had no opportunity to present evidence
showing that the InterQual criteria did not restrict—but rather were consistent
with—the administrative code definition of “medically necessary,” which includes
generally accepted standards of care such as those InterQual purports to quantify.
For instance, the Department could have presented evidence regarding the sources
and reliability of the criteria and how medical care providers use them. We
therefore conclude Ison has forfeited the predisclosure argument by not raising it
in a timely manner, and we will limit our consideration to whether the evidence
supports the Department’s determination that the proposed back surgery was not
medically necessary, taking into account the InterQual criteria.

¶8 Judicial review of administrative proceedings pursuant to WIS. STAT.
ch. 227 is akin to common law certiorari review. See Williams v. Housing Auth.
of the City of Milwaukee, 2010 WI App 14, ¶10, 323 Wis. 2d 179, 777 N.W.2d
185 (2009). We review the decision of the administrative agency rather than that
of the circuit court, applying the same standards of review set forth in WIS. STAT.
§ 227.57. See Morgan Drexen, Inc. v. DFI, 2015 WI App 27, ¶¶4, 6, 361 Wis. 2d
271, 862 N.W.2d 329.

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¶9 We may not substitute our judgment for that of an administrative
agency as to the weight or credibility of the evidence on a finding of fact.
WIS. STAT. § 227.57(6). Rather, we must examine the record for any substantial
evidence that supports the agency’s determination. Id. The substantial evidence
test does not require a preponderance of the evidence, merely that “reasonable
minds could arrive at the same conclusion as the agency” based on the record
before the agency. Kitten v. DWD, 2002 WI 54, ¶5, 252 Wis. 2d 561, 644 N.W.2d
649.

¶10 Here, the Department determined Ison’s proposed back surgery was
not medically necessary based upon the medical opinions the HMO obtained
through its referral to Centene. The first Centene doctor opined Ison did not meet
the criteria for a laminectomy with fusion because he did not have lumbar
radiculopathy (radiating pain), loss of motor or sensory functions, neurogenic
claudication (inflammation of nerves), failure of six weeks to six months of
conservative treatment within the past year, spinal stenosis with spondylolisthesis
(instability of the vertebrae resulting in compression of the spinal cord), infection,
fracture, tumor, recurrent herniated discs following surgery, or progressive
scoliosis (curvature of the spine); and because surgery was not likely to relieve his
pain. The second Centene doctor opined that a laminectomy with fusion was not
medically necessary because Ison had not attempted an adequate trial of
conservative treatment, and imaging did not indicate any abnormal motion of the
vertebrae.

¶11 In addition to his forfeited challenge to the criteria employed by the
Centene doctors, Ison argues the Department erred in placing weight on the
Centene doctors’ opinions because they had not personally examined Ison and
because their names were redacted from their reports. Conversely, Ison faults the

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Department for failing to adequately consider the opinions of his own named
doctors that surgery was appropriate. However, this is precisely the sort of
comparison of conflicting evidence that is outside our scope of review on an
administrative review. The opinions of the Centene doctors rationally explained
their conclusions based upon objective criteria. The Department was entitled to
rely upon those opinions as substantial evidence.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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