Medicare Affiliate Ducks Suit Over Back Procedure

     HOUSTON (CN) – A medical device-maker seeking Medicare coverage for its minimally invasive spinal procedure cannot sidestep administrative review, a federal judge ruled.
     Vertos Medical sued Novitas Solutions in October over its decision to exclude Vertos’ minimally invasive lumbar decompression procedure, or “mild,” from the list of Medicare-approved treatments in its local coverage determination (LCD).
     Novitas serves as the Medicare administrative contractor for a seven-state region that includes Texas. The contractor is tasked with making local coverage decisions that are in accordance with the national findings of the secretary for the U.S. Department of Health and Human Services.
     Vertos says the mild procedure, which receives zero payments from the national insurance companies, is its only source of revenue. Because most of its patients benefit from Medicare, the company contends that coverage removal would prove financially devastating.
     U.S. District Judge Lee Rosenthal dismissed the complaint without prejudice Tuesday for lack of subject matter jurisdiction.
     “Vertos is neither a beneficiary nor a provider and cannot itself access the administrative-review process to challenge the Novitas LCD,” Rosenthal wrote. “Yet the structure of Medicare makes that administrative-review process necessary to a district court’s subject-matter jurisdiction.”
     The 14-page order states that Vertos has not demonstrated “a complete bar to judicial review,” – a hurdle that the company must clear to proceed in federal court.
     Rosenthal pointed out that Novitas’ predecessor made an about-face in May 2012 after several Medicare beneficiaries successfully challenged its practice of denying Medicare coverage for the mild procedure.
     The judge also denied Vertos mandamus relief, saying it was really looking for an injunction.

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