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Notice of Proposed Settlement and Fairness Hearing

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We are giving notice that if you are a medicare beneficiary you may be a member of a class action lawsuit involving local coverage policies. This case challenges, among other things, the notice given when claims are denied by Medicare based on local coverage policies. The United States District Court for the District of Arizona has certified a nationwide class action in this case, Erringer v. Thompson, No. CV 01-112 TUC BPV (D. Ariz.), and the parties have submitted a proposed Settlement Agreement to the Court for its approval. You may request a copy of, and comment on, the proposed settlement agreement. To receive a copy of the Agreement, please write or email class counsel at one of the addresses listed below. A copy of the proposed Agreement is also available on the Web at:​legalnews.html. If you want to comment on the proposed Agreement, you must submit written comments to the Court.

Summary of Agreement

The proposed Agreement settles all claims relating to the initial notice provided to Medicare beneficiaries, whose claims for payment are denied in whole or in part based on application of a Local Medical Review Policy (LMRP) or a Local Coverage Determination (LCD), regarding: (i) The use of such policies in the determination of a beneficiary's claim for benefits, and (ii) the beneficiary's opportunity to provide additional evidence or information in support of his/her claim for benefits. In exchange for Plaintiffs releasing all such claims, Defendant agrees to provide beneficiaries whose claims are denied based on an LMRP or LCD notice that: (1) An LMRP or LCD was used in making the decision to deny their claim; (2) an LMRP or LCD provides a guide to assist in determining whether a particular item or service is covered by Medicare; (3) a copy of the LMRP or LCD is available from the local intermediary or carrier by calling the toll free telephone number listed on the beneficiary's Medicare Summary Notice; (4) the beneficiary can compare the facts in his/her case to the guidelines set out in the LMRP or LCD to see whether additional information from his/her physician might change Medicare's decision; and (5) the beneficiary may also send any additional information regarding any appeal. The Agreement also provides for a way that beneficiaries may receive a copy of the LMRP or LCD used in their case, provides for monitoring of Medicare contractors' compliance with the proposed Agreement's provisions, and provides for a payment of $23,061 in attorney's fees and costs to Plaintiffs' counsel.

Fairness Hearing

The Court will conduct a fairness hearing before Magistrate Judge Bernardo P. Velasco, at the United States District Court, Evo A. DeConcini U.S. Courthouse, 405 W. Congress Street, Tucson, Arizona 85701, on February 3, 2003, at 9 a.m., to determine whether to approve the proposed Agreement as fair, adequate and reasonable. Objections to the proposed Agreement will be considered by the Court if such objections are filed in writing with the Clerk of Court at the above address, on or before December 31, 2002. Attendance at the hearing is not necessary to have an objection considered; however, class members wishing to be heard orally in opposition to the proposed Agreement should indicate in their written objection their intention to appear at the hearing.

Class Counsel

The attorneys representing the plaintiffs and the class as class counsel are:

Sally Hart, Arizona Center for Disability Law and Center for Medicare Advocacy, Inc., 100 N. Stone Ave., Suite 305, Tucson, AZ 85701, (520) 327-9547,

Dina Lesperance, Arizona Center for Disability Law, 3839 N. Third St., Suite 209, Tucson, AZ 85012-2069.

Gill Deford, Center for Medicare Advocacy, Inc., P.O. Box 350, Willimantic, CT 06266, (860) 456-7790.

Counsel for Defendant

Counsel for Defendant is: Ori Lev, United States Department of Justice, P.O. Box 883, Washington, DC 20044.

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Dated: November 6, 2002.

John P. Burke, III,

Paperwork Reduction Act Team Leader, CMS Reports Clearance Officer, Office of Strategic Operations and Strategic Affairs, Division of Regulations Development and Issuances.

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[FR Doc. 02-29128 Filed 11-21-02; 8:45 am]