DAB Draws Fence Around Categorical vs R&N Decisions and Appeals Processes

Medicare ALJs are allowed to review LCDs for validity, and prior decisions have held this is true even if the LCD is couched in other formats such as an "article."   DAB has ruled that in some cases the articles are de facto LCDs and therefore they reach legal review channels as LCDs.

However, not every published adverse coverage decision gets to ALJ review under this concept of the broad category of LCD and de facto LCD.

In case 2782 in April 2017, the Department Appeals Board rules that a MAC published viewpoint that CGMs are considered "precautionary and non covered under the DME benefit" could not be reviewed as if it were an LCD. 

Link here.
https://www.hhs.gov/sites/default/files/board-dab-2782.pdf

The risk, of course, is that MACs could be wily and insulate non coverage decisions from review by tactially saying that XYZ, whatever XYZ is, is "precautionary or screening and therefore not a benefit," rather than stating that it is not reasonable and necessary.  For any topic.  Because DME category decisions include findings of fact about medical purpose, the category decision can have areas of conceptual overlap with an R&N decision.  And I agree with the poor over-ruled ALJ that "precautionary" is a weird concept, not found in CMS manuals or regulations.   Even regular  glucose blood tests could be seen as "precautionary" to find out if your insulin dose must be raised or lowered, and things like INR testing in warfarin patients is "precautionary" to find out if the INR level is too high or low.   For a patient with severe unilateral headaches, an MRI is "precautionary" to see if there is a brain tumor.

Brain teaser for the reader.  Since ALJ's are only allowed to review LCDs based on "reasonable and necessary" decisions, can a MAC frame its decisions in an Article and as "investigational and experimental" and thereby evade ALJ review?   In this hypothetical, MACs could stop putting out LCDs that services are "not reasonable and necessary" and instead put out articles that  services are "investigational and experimental," wording that is not reviewable by an ALJ...Perhaps double insulating its decision by stating the service is "not a benefit category" because it is "experimental and investigational."