The Cures Act did not Cure the Local Coverage Decision Issues

The Cures Act ( ) does many things for improving biomedical research and advancing clinical trials.  Subtitle E – Local Coverage Decision Reforms addresses the requirements for local coverage decisions (LCD).  This section specifies the required documentation to support coverage policies and that the policy must be posted on the CMS website 45 days before implementation.  Unfortunately, that is a distinction without a difference, in my opinion.  In reviewing multiple Medicare Contractor (MAC) websites, the almost verbatim requirements are already required and stated.

So what would a meaningful LCD cure look like?  The Healthcare Business Management Association (HBMA) believes LCDs are long past any relevant and useful purpose.  In fact, the organization advocates for LCD elimination.  How can you have valid quality or care comparison metrics when what is medically necessary in one jurisdiction is not medically necessary in another?  Once a national coverage determination (NCD) has been made, it should suffice for the nation.  Multiple interpretations of what that means are not necessary.  Diagnoses that support medical necessity could easily be incorporated into the final determination and thus remove all ambiguity and idiosyncratic interpretations.  In addition, in some cases, the MAC will not respond to LCD reconsideration requests because they must wait for clarification from CMS on the policy.  As a result, from October 1, 2016 until an estimated date of January 1, 2017, providers in one jurisdiction do not know if some services will or will not be covered.  They know it was covered on September 30.  There is just no information about why it was not covered on October 1 and no reconsideration will be addressed.

I strongly believe this type of confusion and unclear local coverage creates great angst among beneficiaries and their providers.  It is very difficult to explain why the test or service was covered at the time it was ordered but is not covered, or coverage is unknown, by the time service is provided; even if it is one day later.  Is it even possible to issue a valid advance beneficiary notice with the reason for expected non-coverage stated as, “No one has any earthly idea what Medicare will decide”?

The very LCD process is fraught with errors.  As we have discussed in previous articles and presentations, we have seen numerous examples of 2015 ICD-10 conversion errors and 2016 update errors and omissions.  Sadly, it appears the procedure and incredible onus to have these errors corrected falls on the providers.  In addition, when errors are made in an NCD they permeate the entire program and even trickle down to some commercial payors and Medicaid plans.  Although MACs have the ability to interpret correct national policies, it seems they are not permitted to have an LCD interpretation that overrides obvious and admitted errors in national coverage policies.  A real cure would be an expedited process to correct errors promptly in national coverage policies, rather than waiting many months for rectifying mistakes and even longer for them to be implemented locally.

The Cures Act did not cure local coverage decisions.  Perhaps because they cannot be cured.  They are the equivalent of the most virulent antibiotic resistant organisms.  Let’s hope it does not worsen with the implementation of all the new procedure codes and MIPS on January 1.  Let’s really address the cure and eradicate local coverage determinations.


Holly Louie, RN, CHBME, is the compliance officer for Practice Management Inc. and the 2016 HBMA president.

HBMA Washington Report – November Issue

Washington Report – November, 2016

(Covers activity between 11/1/16 and 11/30/16)

Bill Finerfrock, Matt Reiter, Nathan Baugh, Asad Karamally, Carolyn Bounds

Washington Report – November Issue

  • Republican Party Sweeps 2016 Election
  • Congressional Leadership to Remain Largely Unchanged
  • What’s Hot for 2017?
  • Trump Announces Picks for HHS and CMS
  • CMS Publishes 2017 Medicare Physician Fee Schedule Final Rule
  • CMS Announces 2017 Medicare Parts A and B Premiums and Cost Sharing Increases
  • Congress Passes 21st Century Cures Act
  • Court Delays New Federal Overtime Rule
  • OIG Fraud Recoveries Top $5 Billion in 2016
  • Medicare, Medicaid, and CHIP Enrollment and Revalidation Fee for 2017
  • CMS Publishes List of New Quality Measurements under Consideration
  • Date Correction: California’s “Surprise” Medical Bill Law
  • CMS Transmittals

Ober | Kaler Health Law Alert: 2016 Issue 20


New POS Code for Telehealth Distant Site Providers

A new Place of Services or POS code for Telehealth services (POS 02) will go into effect on January 1, 2017. The descriptor for the code, which is for use by the physician or other clinician furnishing telehealth services from a distant site, is as follows, “The location where health services and health related services are provided or received, through telecommunication technology.” MLN Matters MM9726 [PDF]. Use of the new code does not impact the requirement for GT or GQ modifiers; they are still required. Claims for telehealth billed without the new POS and the applicable GT or GQ modifier will be denied. The code does not apply to the billing originating site, i.e., the site where the patient is located, and, in effect, CMS will not have information as to the patient’s location or any details regarding the originating site. Potentially this focus on the distant site provider v. the originating site could forecast more flexibility within Medicare’s policies as to what sites may qualify as originating sites. Only time will tell. — Emily Wein


Ober|Kaler will be combining with the well-respected national law firm Baker Donelson as of January 1, 2017.

The combined firm will have the third largest health practice in the country and will rank among the 50 largest law firms in the country, with more than 800 attorneys and advisors across 25 offices in nine states as well as Washington, D.C.

“This combination will bring together two strong firms with national reputations, particularly in health care, financial services and construction, for exceptional client service. We were drawn to Baker Donelson’s outstanding reputation and the chance to offer our clients a significantly expanded platform with a broader reach, both geographically and in terms of the range of legal counsel that a firm of more than 800 attorneys and advisors brings.” — Ober|Kaler CEO S. Craig Holden

Learn more about the joining of Ober|Kaler with Baker Donelson.

  Ober|Kaler Workplace Law Breakfast Series

Donna Glover and Jennifer Curry of Ober|Kaler’s Employment Group are pleased to present Ober|Kaler’s First Annual Workplace Law Breakfast Series. This program is designed to cover many of the most pressing issues facing employers of all sizes today. Whether you are a small business owner, human resource professional, a finance professional with human resources responsibilities, or in-house counsel, this program will help you to successfully navigate the ever-complex world of employment law. We welcome you to sign up today to take advantage of this invaluable educational opportunity.

Credits available.

Part 3 of 3
December 8, 2016
Ober|Kaler, 100 Light Street, Baltimore, MD 21202
8:00AM – 10:30AM
Registration: $30

Learn more and register here.

Health Law Alert® is not to be construed as legal or financial advice, and the review of this information does not create an attorney-client relationship.

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