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No. CIV02-448TUC(GEE)(D. Ariz.), filed September 10, 2002

Updated: May 3, 2005

Issue: Whether a National Coverage determination (NCD) which is changed should be applied to claims pending in the administrative process, even though the service was received before the change was made.

Relief sought: Declaratory and injunctive relief requiring the NCD at issue (involving enhanced external counterpulsation) to be applied to the plaintiff's claim which was pending at the time that the NCD was changed.

Status: 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 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.  On June 10, 2004, the district court granted the government's motion to clarify.  He did not amend the order, however, leaving intact the broad directive to the Secretary.

After the government unilaterally dismissed its appeal, plaintiffs did the same. The plaintiff's claim was remanded to the ALJ to reconsider in light of the district judge's decision. The government agreed to pay plaintiffs' attorneys' fees under the Equal Access to Justice Act.

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