Thursday, November 14, 2019

The Odd History and Placement of a Statutory Clause about NCD Transparency

This is a footnote; see master article here.


The language on NCDs being required to show and present all evidence is a little quirky.  

First, the language is just plugged in before 1862(b) with no clear rationale for placement there.

Where did it come from?   This paragraph appears in draft versions of Medicare Modernization Act / MMA in 2002/2003 that can still be found via Google.  OK so far so good.  But weirdly - It does not seem to appear in the final version of MMA at in December 2003. 

However, the language appears in the SSA at least as old as 2005, again based on cloud files via Google.   

Here at

Not here, in  PL 108-391 "as signed by President"
But yes, visible in contemporary versions of SSA 1862 such as 2005.


The language is:

^ In making a national coverage determination (as defined in paragraph (1)(B) of section 1869(f)) the Secretary shall ensure consistent with subsection (l) that the public is afforded notice and opportunity to comment prior to implementation by the Secretary of the determination; meetings of advisory committees with respect to the determination are made on the record; in making the determination, the Secretary has considered applicable information (including clinical experience and medical, technical, and scientific evidence) with respect to the subject matter of the determination; and in the determination, provide a clear statement of the basis for the determination (including responses to comments received from the public), the assumptions underlying that basis, and make available to the public the data (other than proprietary data) considered in making the determination.

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