Washington, D.C., partner Jesse Witten co-authored an article for the BNA Health Care Fraud Report on the pending Department of Justice (DOJ) investigation of hospitals for allegedly billing Medicare for non-covered procedures involving the implantation of implantable cardioverter defibrillators (ICDs).


The article argues that the premise of the DOJ investigation – that Medicare covers only ICD implantations that fit within a National Coverage Determination (NCD) for ICDs issued by the Centers for Medicare & Medicaid Services for – is incorrect.   NCDs can describe indications that are covered, indications that are not covered, or both.  The article argues that the NCD for ICDs describes indications for which Medicare provides coverage, but does not exclude coverage for patients outside the NCD. 


Jesse’s article notes that the CMS National Coverage Determinations Manual does not restrict coverage unless the NCD contains a statement explicitly excluding coverage. Here, the relevant NCD does not explicitly disavow coverage for ICDs that do not fall within the NCD.


“The 2005 NCD deleted an explicit statement of noncoverage which appeared in the 2003 version and which, according to the NCD Manual, is required for an NCD to bar coverage,” Jesse wrote. “In contrast to the 2005 NCD for ICDs, many other NCDs do contain an explicit statement of noncoverage.”

Source: Health Care Fraud Report
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