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No. 03-1346 (6th Cir.), appeal filed March 6, 2003

Final Update: September 19, 2005

Amicus information: Amici are the Center for Medicare Advocacy and AARP.  They are supporting the claim of the plaintiff, a Medicare beneficiary who is seeking coverage.  Amici did not participate in the district court.

Issues: (1) Whether a beneficiary could only review a national coverage determination (NCD) based on evidence available at the time that it was adopted, as opposed to at the time of the beneficiary's claim. (2) Whether an NCD that was changed while the beneficiary's administrative claim was pending (but after the surgery had been performed) should be applied retroactively to authorize Medicare coverage.

Relief sought: Reversal of the district court's decision (234 F.Supp.2d 724 (E.D.Mich. 2003)) and coverage for the surgery that was not considered covered by the NCD at the time that it took place.

Status: Oral argument was held on April 28, with Center attorney Sally Hart arguing on behalf of the amicus.  On June 25, 2004, the Court, in a 2-1 unpublished decision, reversed the district court.  It held that, because the Secretary had formally determined before the surgery in question that that type of surgery was reasonable and necessary, he could not deny reimbursement by relying on the fact that the new NCD's effective date was after the date of the surgery.  The Court also held that the Secretary's position was not substantially justified and that therefore plaintiff was entitled to attorneys' fees under the Equal Access to Justice Act.

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