On April 11, 2017, the American Association of Nurse Anesthetists (AANA), an organization representing more than 50,000 Certified Registered Nurse Anesthetists (CRNAs), filed a complaint for declaratory and injunctive relief in federal court in the Northern District of Illinois against Medicare Administrative Contractor (MAC) Novitas Solutions, Inc. (Novitas) and Administrator of CMS Seema Verma in her official capacity.  The lawsuit alleges that a Novitas local coverage determination (LCD) to become effective on May 4, 2017 prevents CRNAs from being reimbursed for their treatment of Medicare beneficiaries suffering from chronic pain.  Novitas’ jurisdiction spans Washington D.C., Pennsylvania, New Jersey, Maryland, Delaware, Colorado, Oklahoma, New Mexico, Arkansas, Texas, Louisiana, and Mississippi.

AANA alleges in its suit that CMS engaged in proper rulemaking in 2012 that clarified 42 C.F.R. § 410.69, which provided that CRNAs will be reimbursed for anesthesia and related care, including chronic pain management care if the performance of such care is permitted by the scope of practice of the state in which the services are performed.  AANA further alleges that Novitas LCD L36920 (Epidural Injections for Pain Management), which is set to take effect on May 4, seeks to block proper reimbursement for CRNA pain management services by creating several new training requirements that must be satisfied before epidural injections can qualify for reimbursement.  However, CRNAs cannot fulfill these requirements because there are allegedly no training programs that exist for non-physician practitioners to meet those requirements.  The suit alleges that the LCD “provides a path for CRNAs that leads nowhere.” 

AANA alleges that Novitas exceeded its proper authority and engaged in improper rulemaking.  AANA also alleges that the Defendants’ use of the LCD deprives CRNAs of their constitutionally-protected property interest (i.e., their right to Medicare reimbursement) and violates their rights under the Due Process Clause of the Fifth Amendment.  AANA seeks a declaratory judgment that (1) the CRNAs are entitled to due process, including a hearing before an impartial decision maker and a meaningful appeal process before the LCD deprives them of their property interest, and (2) the LCD is an improper attempt at rulemaking and that Defendants have exceeded their authority to make Medicare coverage determinations.  AANA also seeks an injunction prohibiting enforcement of the LCD as it relates to CRNAs.

The lawsuit is American Association of Nurse Anesthetists and Lisa Pearson, CRNA v. Novitas Solutions, Inc., and Seema Verma, in her official capacity as Administrator of CMS, No. 1:17-cv-02753 (N.D. Ill. April 11, 2017).  The complaint is attached here, and the LCD is attached here.