CMS eliminated the oxygen CMN when it posted its final decision memo updating the Home Use of Oxygen National Coverage Determination (NCD) in September 2021. Curiously, the MACs have yet to update the related local coverage determination (LCD), policy article, or claims processing logic to incorporate the sweeping change. In fact, their current position is that suppliers should follow the old rules for the time being. Suppliers are understandably conflicted about deviating from habit given the conflicting guidance. For confidence, suppliers need to know: What happens when an NCD conflicts with an LCD?
In the hierarchy of authoritative Medicare guidance, the NCD rules. Full stop.
According to Title 42 of the Code of Federal Regulations (CFR), the DME MACs and the agencies managing all levels of appeal – Maximus, administrative law judges (ALJs), and the Council for second, third, and fourth level appeals, respectively – must follow an NCD when it governs a service date. 42 CFR § 405.1060(a)(4) spells it out:
“An NCD is binding on fiscal intermediaries, carriers, QIOs, QICs, ALJs and attorney adjudicators, and the Council.”
Further still, 42 CFR § 405.1062(a) states:
“ALJs and attorney adjudicators and the Council are not bound by LCDs, LMRPs, or CMS program guidance, such as program memoranda and manual instructions, but will give substantial deference to these policies if they are applicable to a particular case.”
Medicare contractors and all other authorities have an obligation to follow the NCD. LCDs are not binding at higher levels of appeals. While nothing in the rules precludes the MACs, auditors, and others from relying on LCDs and other lower-level guidance, the NCD governs when there is a conflict.
The NCD is effective September 27, 2021, and it eliminates the oxygen CMN. Ipso facto, suppliers do not need oxygen CMNs for new setups or restarts with service dates on or after the effective date.
SOURCE LINKS
https://www.law.cornell.edu/cfr/text/42/405.1060 - 42 CFR § 405.1060 - Applicability of national coverage determinations (NCDs)
https://www.law.cornell.edu/cfr/text/42/405.1062 - 42 CFR § 405 1062 Applicability of local coverage determinations and other policies not binding on the ALJ or attorney adjudicator and Council
In the hierarchy of authoritative Medicare guidance, the NCD rules. Full stop.
According to Title 42 of the Code of Federal Regulations (CFR), the DME MACs and the agencies managing all levels of appeal – Maximus, administrative law judges (ALJs), and the Council for second, third, and fourth level appeals, respectively – must follow an NCD when it governs a service date. 42 CFR § 405.1060(a)(4) spells it out:
“An NCD is binding on fiscal intermediaries, carriers, QIOs, QICs, ALJs and attorney adjudicators, and the Council.”
Further still, 42 CFR § 405.1062(a) states:
“ALJs and attorney adjudicators and the Council are not bound by LCDs, LMRPs, or CMS program guidance, such as program memoranda and manual instructions, but will give substantial deference to these policies if they are applicable to a particular case.”
Medicare contractors and all other authorities have an obligation to follow the NCD. LCDs are not binding at higher levels of appeals. While nothing in the rules precludes the MACs, auditors, and others from relying on LCDs and other lower-level guidance, the NCD governs when there is a conflict.
The NCD is effective September 27, 2021, and it eliminates the oxygen CMN. Ipso facto, suppliers do not need oxygen CMNs for new setups or restarts with service dates on or after the effective date.
SOURCE LINKS
https://www.law.cornell.edu/cfr/text/42/405.1060 - 42 CFR § 405.1060 - Applicability of national coverage determinations (NCDs)
https://www.law.cornell.edu/cfr/text/42/405.1062 - 42 CFR § 405 1062 Applicability of local coverage determinations and other policies not binding on the ALJ or attorney adjudicator and Council
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