Helping SHIPs Help Medicare Beneficiaries
National Coverage
Determinations (NCD)
Notice & Appeal Issues for
Medicare Beneficiaries
July 2010
Goals for Session
• Provide Context: ―Troubleshooting
Medicare Project‖
• Highlight how Systemic Issues Arise in
SHIP Casework
• Define National Coverage Determinations
– What do NCDs mean for Medicare Appeals?
• Identify Lessons Learned, Implications for
SHIPS, and Resources
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Troubleshooting Medicare
• Retirement Research Foundation project
• Identify persistent, systemic issues that
affect access to care
– QMB Cost-sharing
– Annual Enrollment Period
– MA and Part D Marketing
– Medicare Notices (MSN, ABNs, NOMNC)
• Make recommendations
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Case Study: Mrs. B
• Mrs. B received several diagnostic tests to
determine the cause of diminished control
of her right foot.
• A neurologist ordered a ―Magnetic
Resonance Angiography‖ (MRA) test with
dye to assess blood flow in the spine.
• The provider did not accept assignment on
the claims to Medicare.
• Mrs. B called Oregon’s SHIBA for help
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Case Study: Mrs. B
• The Medicare Summary Notice (MSN) for
the MRA procedure said:
– Amount charged: $2,502.33
– Medicare approved: $0.00
– Medicare paid you: $0.00
– You may be billed: $2,502.33
– See Notes Section: ―a‖
– ―Medicare does not pay for this item or
service‖
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NCD 220.3
• NCD 220.3: Magnetic Resonance
Angiography
– Covered indications
• Head & neck
• Peripheral arteries of lower extremities
• Abdomen & pelvis
• Chest
– Non-covered indications
• All other indications, including spine
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National Coverage Determinations
(NCD) Defined
National Coverage Determinations (NCD) are CMS’s national policy
statements granting, limiting, or excluding Medicare coverage for
a specific medical service, procedure, or device.
An NCD is binding on all Medicare payment contractors (A/B MACs,
DME-MACs, etc.), Quality Improvement Organizations (QIOs), and
Medicare Advantage (MA) plans.
In addition, NCDs may not be disregarded, set aside, or otherwise
reviewed by an Administrative Law Judge (ALJ) during the
administrative appeals process (emphasis added).
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National Coverage Determinations
• Medicare National Coverage Determinations
Manual (Pub. No. 100-03)
– www.cms.hhs.gov/Manuals/IOM/list.asp
• 31 coverage categories or groupings
– Run the gamut of Medicare coverage policy
– Examples: Complementary & Alternative Medicine,
Nervous System, Radiology, Skin
• 300+ National Coverage Determinations
– Examples: Acupuncture, Electrical Nerve Stimulation
Therapies, Actinic Keratosis
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National Coverage Determinations
• NCDs and Local Coverage Determinations
(LCD) are different
• NCDs are binding on all Medicare
Payment Contractors and MA plans
• NCDs are binding on Administrative Law
Judges (ALJ)
• Special appeals procedure directly to the
Departmental Appeals Board
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Appealing a Coverage Denial
Based on an NCD
• Special Appeal: DAB Review of an NCD
– File a written ―complaint‖
– 6 months from date of a physician statement
certifying that the beneficiary ―needs the
service that is the subject of the NCD.‖
– DAB uses the ―reasonableness standard‖ to
review the NCD
– CMS’s Office of Clinical Standards may open
(or re-open) its own review of the NCD
– See 42 CFR §426.500-570
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Appealing a Coverage Denial
Based on an NCD
• Regular Appeals Process
– Redetermination by Payment Contractor
– Reconsideration by QIC
– ALJ Hearing
– Departmental Appeals Board (DAB) Review
– Judicial Review
• Remember! NCD is binding on decision-
makers through the ALJ level
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The Systemic Issue:
Inadequate Notice
• Here’s how the Carrier’s Initial
Determination notice (the MSN) explained
the coverage denial:
Medicare does not pay for this item or
service
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§ 405.921 Notice of initial determination.
(a) Notice of initial determination sent
to the beneficiary. (1) The notice must
be written in a manner calculated to be
understood by the beneficiary, and sent
to the last known address of the
beneficiary;
(2) Content of the notice. The notice of
initial determination must contain—
(i) The reasons for the determination,
including whether a local medical review
policy, a local coverage determination,
or national coverage determination
was applied;
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The Systemic Issue:
Inadequate Notice
• Here’s how the Carrier’s Redetermination
letter explained the reason for the
coverage denial:
The procedure code 72159 is a non-covered
service based on the code status of N found in
the Medicare Physicians Fee Schedule Data
Base (MPFSDB).
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§ 405.956 Notice of a redetermination.
(b) Content of the notice for affirmations,
in whole or in part. For decisions
that are affirmations, in whole or in
part, of the initial determination, the
redetermination must be written in a
manner calculated to be understood by
a beneficiary, and contain—
(3) An explanation of how pertinent
laws, regulations, coverage rules, and
CMS policies apply to the facts of the
case;
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The Systemic Issue:
Inadequate Notice
• Here’s how the QIC’s Reconsideration letter
explained the reason for the coverage denial:
Reconsideration has carefully reviewed your appeal
request with findings that the beneficiary should be
responsible for payment on this service. The Medicare
physician fee schedule database status indicators are
grouped into different categories. The "N" status
indicator is for a non-covered service. The procedure(s)
identified on the appeal has been identified, by the CMS,
as a service that has no payment under the fee
schedule.
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§ 405.976 Notice of a reconsideration.
(b) Content of the notice. The reconsideration
must be in writing and contain—
(3) An explanation of how pertinent
laws, regulations, coverage rules, and
CMS policies, apply to the facts of the
case, including, where applicable, the
rationale for declining to follow an
LCD, LMRP, or CMS program guidance;
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What Have We Learned?
• MSNs don’t explain when an NCD is used to
deny coverage
• Redetermination and Reconsideration letters
don’t explain how an NCD applies to the facts of
the case
• Federal regulations state that notices must give
reasons for a coverage denial, including how an
NCD, coverage rules and policies, apply
• Medicare Claims Processing Manual contains
model MSN language for notes explaining
decisions based on LCDs, but not for NCDs
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What Have We Learned?
• Call Center and QIC staff seemed unfamiliar
with differences between NCD and LCD
• Call Center and QIC staff did not know about
special DAB review procedure for NCDs.
• Special NCD appeals procedure worked for Mrs.
B; regular appeals procedure did not
• CMS-MEAG has been open to hearing our
concerns about the systemic issues.
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What Does it Mean for SHIPS?
• SHIPs can be eyes and ears, and
advocate for system level improvements
– NCD case is one ―tip of the iceberg‖ example
– Advance Beneficiary Notices (ABN)
• Specific reason for required
• ―Blanket ABNs‖ prohibited
• Routine use prohibited
– Service Termination Notices
• Home Health ABN
• Skilled Nursing Facility ABN
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Resources for SHIPs
• Center for Medicare Advocacy
– www.medicareadvocacy.org
– Sally Hart, shart@medicareadvocacy.org
• Office of Medicare Ombudsman
– John Vorhees, john.vorhees@cms.hhs.gov
• Medicare Claims Processing Manual
– MSNs: Chapter 21
– ABNs and Waiver of Liability: Chapter 30
– www.cms.gov/Manuals/IOM/list.asp
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