Erringer et al v. Thompson
- The subject of this lawsuit is the Medicare program’s use of Local Coverage Determinations
(LCDs) or Local Medical Review Policies (LMRPs) as rules in denying beneficiary claims for coverage of medical care. The plaintiffs are six individuals and a nationwide class of Medicare beneficiaries who are harmed by defendant’s unlawful practices with respect to both promulgation of LCDs and
LMRPs, and the form of notice given to beneficiaries when LCD/LMRPs are used to deny them services.
LCDs and LMRPs are Medicare coverage rules created by the private intermediaries and carriers that administer the Medicare program under contract with the defendant. The rules vary from contractor to contractor throughout the country. There is no regulation that establishes standards and procedures to bind the contractors in enacting their
LCD/LMRPs. Furthermore, the criteria for LCD/LMRPs set out in internal agency manuals restrict coverage in ways not authorized in the Medicare statute. As a result, Medicare beneficiaries are denied services to which they are entitled based on the restrictive
LCD/LMRPs. The LCD/LMRPs are binding at both the reconsideration and hearing officer stages of administrative appeal, so beneficiaries lack remedies when services are denied.
The parties have reached a tentative agreement to settle the claim concerning inadequacy of notice given to beneficiaries when their claims for payment are denied in whole or in part based on application of a Local Medical Review Policy
(LMRP) or a Local Coverage Determination (LCD). The Medicare administration has agreed to give beneficiaries specific notice that: (1) an LMRP or LCD was used in making the decision to deny their claim; (2) an LMRP or LCD provides a guide to assist in determining whether a particular item or service is covered by Medicare; (3) a copy of the LMRP or LCD is available from the local intermediary or carrier by calling the toll free telephone number listed on the beneficiary’s Medicare Summary Notice; (4) the beneficiary can compare the facts in his/her case to the guidelines set out in the LMRP or LCD to see whether additional information from his/her physician might change Medicare’s decision; and (5) the beneficiary may submit any additional information regarding any appeal. The Agreement also provides for a mechanism by which beneficiaries may receive a copy of the LMRP or LCD used in their cases, provides for monitoring of Medicare contractors’ compliance with the proposed Agreement’s provisions, and provides for a payment of $23,061.00 in attorney’s fees and costs to Class Counsel.
The remaining claims in the lawsuit, that the Medicare administration’s failure to promulgate its criteria for
LCD/LMRPs with public notice and comment violates constitutional and statutory requirements, has not been settled. The parties are currently briefing these issues for resolution by the court.
Notice Of Proposed Settlement (PDF only)
Settlement Agreement (PDF only)