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Virginia Journal of Social Policy & the Law

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The notion of medical necessity has long been the operative tool through which healthcare coverage determinations in the United States have been rendered and justified. Now, for most people, decisions about coverage translate into decisions about healthcare since few people can afford to pay for their own healthcare. The notion of medical necessity constitutes a necessary component of any healthcare system that is committed to providing high-quality healthcare at a sustainable cost. In practice, however, reliance on medical necessity to determine healthcare coverage is only as productive as the larger health care system within which medical necessity determinations occur. Definitions of both “medical” and “necessity” are flexible and interpretations are varied. As a result, the value of medical necessity determinations depends on the character of a nation’s healthcare delivery and payment structure and on the identity of those rendering medical necessity determinations.

The article examines shifts in the notion of medical necessity through four periods – beginning with a pre- and early-twentieth century world in which medicine was essentially a cottage industry, and continuing through the promulgation and implementation of the Affordable Care Act. The article analyzes relevant legal changes during each period (including the promulgation of Medicare, HIPAA, and the Affordable Care Act) and delineates the social, economic, and political shifts each brought to U.S. healthcare and correlatively, to uses of the notion of medical necessity for determining healthcare coverage. The Article concludes with two sets of suggestions for redesigning the system through which medical necessity determinations occur. The first set assumes the viability of the Affordable Care Act. The second assumes the possibility of more far-reaching healthcare reform.

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