Federal Court Considers Appeal Of Government’s Denial of Medicare Coverage for “Experimental” Prostate Cryosurgery
In December of 1999 client (Plantiff) filed an administrative appeal to the Northern District of Illinois Eastern Division in Case No. 00-CV-8196, Fred Smith v. Tommy G. Thompson, etc., assigned to U.S. District Court Judge Joan Gottschall, and Magistrate Judge Martin Ashman. Plaintiff appealed Defendant's decision denying Medicare coverage of cryosurgery, percutaneous cryoablation of the prostate at the Rush-Presbyterian St. Lukes Medical Center, and also the denial of the bill of the urologist who had performed the procedure. The charge by the urologist was $3,500.00 (Part B of Medicare), and the charge for the hospitalization was $14,718.46 (Part A of Medicare). A hearing officer for the Medicare carrier decided in 1996 that the procedure was considered experimental or investigational and was therefore not covered under Medicare.
In 1996, this decision was appealed an Administrative Law Judge with the Office of Hearings and Appeals in Oakbrook Terrace who heard the case. He ruled against Plaintiff, finding that the surgery was not medically reasonable and necessary under Section 1862(a)(1)(5) of the (Social Security) Act, despite the positive results. Plaintiff argued, to no avail, that the evidence in the record overwhelmingly demonstrated that cryosurgical ablation of the prostate is safe and effective, and furthermore the medical community generally accepts it as being such. Thus, Plaintiff argued that it was incorrect for Defendant to assert that the procedure is anything other than reasonable under the circumstances. Furthermore, he argued that it was arbitrary and capricious for the Administrative Law Judge to ignore this overwhelming weight of medical evidence and rule against Plaintiff under the circumstances.
As for the necessity of the procedure, the local extension of the cancer led to his treating physician aborting radical prostatectomy in 1994, and to concluding that conventional radiation therapy was not viable.
An issue in the ALJ's decision was whether a National Coverage Decision concerning this procedure existed at the time of the procedure. As it turns out, there was no then-existing National Coverage Decision denying coverage, and that the decision that came into effect denying coverage did not take effect until after the ALJ's 1996 decision (in 1997). Thus, it was not in effect at the time of Plaintiff's surgery on March 19, 1995. Interestingly, in 1999 the1997 National Coverage Decision was reversed, and procedures like Plaintiff's are now approved by Defendant's National Coverage policy.
The parties have filed cross motions for summary judgment. Plaintiff has filed a brief and his reply brief was filed July 17, 2001, in response to Defendant's Brief. As of the September 10, 2001 writing of this article, Magistrate Judge Ashman had not yet issued his ruling.
The issue of what is and isn't an investigational or experimental procedure is of considerable interest to all Medicare advocates. Likewise, the question of National Coverage Decisions is a matter of frequent concern. Accordingly, the progress of this case is likely to be of interest to advocates and the Government alike.