Are CMS’ Local Coverage and National Coverage Determinations the Final Word?

RAC, CERT, ZPIC, MAC. These are acronyms that send shudders through most hospital’s C-Suites, given their perpetually increasing aggressiveness of “un-paying” hospitals, and now physicians1.

Understanding LCD’s and NCD’s

A majority of these “un-payments” are made on the basis that the service provided was not medically necessary and quite often cites an LCD or NCD as the basis for denying care. At first glance, LCD’s and NCD’s seem to be rigid and inflexible tools inserted into the doctor-patient relationship and used to usurp a physician’s judgment that a procedure was medically indicated. However, closer scrutiny of CMS’ language around these determinations shows that LCD’s and NCD’s may not be as bullet proof as they appear to be.

CMS states about LCD’s (emphasis added):

“To meet Medicare’s reasonable and necessary (R&N) threshold for coverage of a procedure, the physician’s documentation for the case should clearly support both the diagnostic criteria for the indication (standard test results and/or clinical findings as applicable) and the medical need (the procedure does not exceed the medical need and is at least as beneficial as existing alternatives & the procedure is furnished with accepted standards of medical practice in a setting appropriate for the patient’s medical needs and condition). Lacking compelling arguments for an exception in the supporting documentation, the hospital (FISS claim) and physician services (MCS claim) can be denied. If in certain circumstances the patient does not meet all of the required criteria outlined in the local coverage determination (LCD) for a procedure, but the treating physician feels that the procedure is a covered procedure, given the current standards of care, then the documentation must clearly outline the patient’s episode of care that supports the major procedure and must clearly address the reason(s) for coverage. For example, if clinical findings (or lack of) for an indication are not consistent with the LCD criteria, it should be directly addressed in the pre-procedure documentation. For instance, if certain conservative therapies are not necessary for a given patient, it should be directly noted in the pre-procedure documentation. In other words, if lumbar fusion for multiple levels for pure DDD is the planned intervention, the pre-procedure documentation should address this debated indication. The clinical judgment of the treating physician is always a consideration if clearly addressed in the pre-procedure record and if consistent with the episode of care for the patient as documented in patient records and claim history.”

Educating your staff

Hospitals with high rates of denials related to prepayment reviews for current areas of focus by CMS reviewers, such as total joints, cardiac devices and spinal procedures, should consider educating their medical staff as to this language and develop pre-operative procedures. Specific checklists that incorporate the LCD or NCD precisely to the planned surgery, as well as a reminder for the physician to document in the pre-operative note how the planned procedure is within the current standards of care, all work toward reducing the risk of future take backs. Capturing this information as part of the inpatient medical record prior to the surgery is key to demonstrating medical necessity and ultimately keeping the auditors at bay.