Judge William D. Browning of the United States District Court for the District of Arizona issued a decision on January 30, 2004 ordering the Medicare administration to apply liberalized National Coverage Rules to claims pending in the appeal process.

The case, Wallis v. Thompson, CIV 02-448-TUC-WDB, was brought by a Medicare beneficiary who received treatments called Enhanced External Counterpulsation (EECP or ECP) for his severe angina in 1997 and 1998. The treatments were prescribed by his cardiologist as the only effective treatment for him. Medicare denied coverage based on a National Coverage Determination (NCD) that had been adopted in 1984 because there was not yet enough "published clinical evidence" of the utility of EECP. Mr. Wallis appealed the denial.

Before the administrative hearing in Mr. Wallis’ appeal, Medicare reversed its NCD rule that EECP was not a covered service. In 1998 it found that EECP is "reasonable and necessary", and on February 25, 1999 Medicare announced EECP would be covered, but only for beneficiaries who received the service after July 1, 1999. Under Medicare policy, Mr. Wallis’ treatments continued to be denied throughout the administrative appeal process based on the NCD in effect at the time he received his treatments, despite the agency’s finding that EECP meets all the statutory requirements for coverage.

This case, filed on October 7, 2002, challenged the Medicare policy of continuing to apply restrictive NCDs to pending cases after the restrictive rules have been withdrawn. The Court agreed with Mr. Wallis that liberalized NCDs should be applied retroactively to claims in the appeal process. The Court’s Judgment prohibits the Defendant Secretary of Health and Human Services from: 1. refusing to apply the less restrictive NCD adopted in 1998 to authorize coverage of Plaintiff’s pending EECP claims; and 2. refusing to apply revised NCDs authorizing Medicare coverage of services formerly ruled "not reasonable and necessary" to claims that are pending at the time of revision.

© Copyright, Center for Medicare Advocacy, Inc. 05/02/2008