Proposed legislation may provide some relief for frustrated physicians

From international law firm Arnold & Porter LLP comes a timely column that provides views on current regulatory and legislative topics that weigh on the minds of today's physicians and health care executives.

In response to concerns expressed by physicians throughout the country, legislation recently was introduced in the House of Representatives that would hold Medicare Administrative Contractors (MACs) more accountable for their reimbursement and coverage decisions. H.R. 5721, known as the Local Coverage Determination Clarification Act of 2016, was introduced by Reps. Lynn Jenkins, R-Kan., and Ron Kind, D-Wis. It is anticipated that H.R. 5721 will generate broad bipartisan support.

The preamble of the bill states that its purpose is "to improve the process whereby Medicare Administrative Contractors issue local coverage determinations under the Medicare program … ." Specifically, the bill would require that whenever a MAC proposes to issue a local coverage determination (LCD), it must take the following steps:

1. Publish a proposed version of the LCD on its website and include a written rationale for the proposal, as well as the description of all evidence relied upon in developing the LCD.

2. No more than 60 days after publication of the draft LCD, the MAC must convene at least one open public meeting to review the draft, as well as receive comments from the public. The MAC also must secure advice of an expert panel.

3. Within 14 days of the public meeting, the MAC must post a record of the meeting minutes on its website.

4. The MAC must provide a period for submission of written public comments with respect to any proposed LCD.

The legislation has several other provisions, including a reconsideration process for specified LCDs, in which an interested party may request that the MAC reconsider any LCD determination or portion of such of new LCD. Significantly, the legislation also provides for a process in which the MACs reconsideration determination is subject to appeal to the secretary of HHS. In addition, the legislation specifically prohibits MACs from adopting an LCD from another jurisdiction without first conducting its own independent evaluation of the evidence.

The LCD process has generated significant frustration for physicians and providers across the Medicare program. Lack of transparency, inconsistent policy from contractor to contractor, and unreasonably restrictive coverage and reimbursement decisions have been a source of concern for many years. Although this proposed legislation may not solve all of these problems, it is a start. Those in favor of such reform should contact their respective congressional representative and urge support of the legislation.

Alan E. Reider, JD, MPH, a partner at Arnold & Porter LLP, can be reached at alan.reider@aporter.com.

Matthew T. Fornataro, JD, an associate at Arnold & Porter LLP, can be reached at matthew.fornataro@aporter.com