National Coverage Determinations (NCDs) are policies issued by the Centers for Medicare & Medicaid Services (CMS) under Section 1869(f) of the Social Security Act. The same section provides that aggrieved parties may seek review of an NCD by filing a complaint with the Departmental Appeals Board (Board). Aggrieved parties must be beneficiaries in need of an item or service for which the NCD denies coverage. The Code of Federal Regulations (C.F.R.), Title 42, Part 426, explain what the requirements are for an acceptable complaint and how the complaints will be heard by the Board. It is required, in 42 C.F.R. § 426.510(f), that the Board provide public notice on its website when an acceptable complaint is filed and specifies a time frame in which interested parties may seek to participate in the review process.
The Board has discretion, under the regulations, to allow participation as amicus curiae under limited circumstances. The conditions for participating include showing that:
- the person requesting to participate has a clearly identifiable and substantial interest in the outcome of the dispute;
- the participation would be helpful to the resolution of the dispute; and
- the participation would not result in substantial delay.
Persons seeking to participate in this way must submit a written petition to do so. The petition should include the name and number of the NCD and the Board docket number assigned to the appeal, which are identified on the posted list giving notice of acceptable complaints filed with the Board. The petitioner should also:
- explain how the conditions for participation are met;
- identify any representative; and
- describe the issues about which the petitioner seeks to present argument.
Petitions should be mailed to the following address:
Department of Health and Human Services
Departmental Appeals Board, MS 6127
Attn: NCD Participation Request
330 Independence Avenue, SW
Cohen Building, Room G-644
Washington, DC 20201
The Board will then notify the petitioner of whether and in what manner participation will be permitted.