Medicare Policy Deeming CGM Precautionary Not Supported by Evidence

A Type1 diabetic Medicare beneficiary challenged Medicare contractor NHIC’s practice of denying claims for her continuous glucose monitor (“CGM”) and supplies. NHIC has denied covering CGM and supplies asserting that they are “precautionary.” The Medicare contractor first tried to argue that the judge had no jurisdiction to consider the challenge.   The judge, a member of the Civil Remedies Division of the Departmental Appeals Board, a component of HHS specifically created to hear such challenges, rejected that assertion. NHIC then argued that Medicare did not consider CGM durable medical equipment. The judge ruled, “The contractor and CMS have not produced any record in the form of peer-reviewed literature, medical opinions, or even any analysis from an individual with a medical background that supports a conclusion that a CGM is never reasonable and necessary irrespective of the beneficiary’s condition.” The Medicare beneficiary had submitted numerous peer-reviewed articles and consensus statements in support of coverage of CGM.

The judge noted that Medicare has a long-standing policy of broadly construing the durable medical equipment benefit consistent with Congressional intent. The judge found the policy of not covering CGM “inconsistent with the broad construction of DME intended by Congress and overly restrictive.” He further found that CGM meets to four criteria to be durable medical equipment.

The judge noted that NHIC did not argue that CGM did not meet the definition of a home blood glucose monitor under National Coverage Determination 40.2. He found it inconsistent to deem CGM to be precautionary as all blood glucose monitors simply alert a Medicare beneficiary that medical intervention may be necessary. He implicitly rejected the statement made in a letter to a manufacturer of a CGM device, proffered by NHIC in support of its position, that a confirmatory finger stick deprives CGM of DME status.

The judge found the policy declaring CGM to be “precautionary” and therefore not durable medical equipment, not supported by evidence. Before striking the policy, consistent with Medicare regulations, the judge is required to allow the Medicare beneficiary to conduct discovery against the Medicare contractor NHIC. The Beneficiary must serve discovery requests by November 2, 2015

CGM is widely accepted both nationally and internationally as the standard of care for diabetics with hypoglycemic unawareness, frequent hypoglycemia, and A1C below 7. Based on the judge’s ruling, the Medicare policy, which should be based on the peer-reviewed literature and medical opinion, is inconsistent with the same.

Click here to read the decision

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