The law firm Reed Smith LLP, filed a class action lawsuit in U.S. District Court for the District of Columbia, Civil Division, last Friday on behalf of nursing-home resident Louise Bailey and other diabetic Medicare Part B beneficiaries in skilled nursing facilities. The suit alleges that Michael Leavitt, Secretary of the Department of Health and Human Services, Leslie V. Norwalk, Acting Administrator of the Centers for Medicare and Medicaid Services, and Mutual of Omaha Insurance Company in its role as a medical contractor enforce policies that deny coverage for medically necessary blood glucose tests to institutionalized diabetic patients. The complaint asks the court to recognize that decisions concerning the medical necessity and frequency of blood glucose tests for Medicare nursing home residents be made only by physicians.
In October 2005, Mutual of Omaha denied coverage for Bailey to get four blood glucose tests a day for her advanced diabetes. According to the complaint, CMS allowed Mutual of Omaha’s enforcement of a Local Coverage Determination that denied coverage for blood glucose tests for diabetics under Medicare Part B. When Bailey challenged the LCD before the HHS Departmental Appeals Board, Mutual of Omaha withdrew the LCD. But Bailey’s lawyers claim that Mutual of Omaha will continue to apply the LCD coverage policies to future claim reviews, even though they are now invalid” and that “neither Mutual nor CMS have taken any action to suggest that any of Mutual’s previous denials of blood glucose testing coverage for thousands of other Medicare beneficiaries in the proposed class will be reopened or reviewed as a consequence of the LCD withdrawal.” The complaint also references a letter from Senators Susan Collins and Blanche Lincoln to HHS Secretary Leavitt on December 7, urging CMS to revise a newly issued rule that establishes different glucose testing regulations for Medicare Part A and Part B and requires a separate order and certification for each test. The senators say the rule is confusing and burdensome and could prevent diabetics in skilled nursing facilities from having their blood glucose adequately monitored.
