To understand the difference it is helpful to know the regulatory hierarchy.
Last week’s article describing how Local Coverage Determinations (LCDs) are not binding prompted a question: what about National Coverage Determinations (NCDs)?
Are NCDs afforded more weight than LCDs? The answer is a resounding “yes.” NCDs are binding, but people often misunderstand how to apply them.
Before exploring how people misunderstand NCDs, it is helpful to consider the regulatory hierarchy. The U.S. Constitution is the controlling authority, the ultimate “law of the land.” Since both Medicare and Medicaid are federal government programs, they must comply with all constitutional provisions, including the right to due process. It may not always feel this way, but the programs must be fair. Next come statutes, which we would typically call laws. For Medicare, the laws are generally found in the Social Security Act. Since Medicaid is a joint federal and state program, both federal and state laws apply.
Immediately below statutes in the hierarchy are regulations. Federal regulations are found in the Code of Federal Regulations, while their state counterparts appear in something that’s usually called the “state administrative code,” but might also be called state rules, state regulations, or something similar. Regulations are the lowest level of authority that is still binding. Many people will refer to regulations as “rules.” I strongly encourage you to reserve the term “rule” for a regulation. Provisions of materials such as a “program manual” or “policy” should be called “guidance” rather than a rule, because they lack the legal authority conferred upon regulations/rules.
Regulations are typically going to be binding legal authority, while guidance will not. The only time a statute or rule is not authoritative is if it contradicts a higher authority. Statutes can’t violate the Constitution, and regulations can’t violate either the Constitution or a statute. Finally, there are all of the other guidance found in manuals, LCDs, the Medicare Learning Network, and other documents. They are not binding, and shouldn’t be treated as if they are.
Let’s return to NCDs. First, how do we know that NCDs are binding? A federal statute says so. 42 U.S.C. §1395hh(a)(1) says nothing other than an NCD may change benefits unless promulgated as a regulation. Under that statute, NCDs are treated as analogous to regulations. That makes some sense because they go through a comment period, similar to a regulation. This article opened with a claim that people misapply NCDs. What does that mean? People often read an NCD and conclude that particular treatments are not covered. However, unless it explicitly says otherwise, an NCD only extends coverage. It doesn’t limit coverage. If an NCD says “for condition A, treatments 1, 2, and 3 are covered,” that NCD is not limiting the overage of treatment 4. Instead, typical medical necessity rules apply to treatment 4. The NCD limits coverage only if it said something like “treatment 4 is not covered” or “no other treatment can be covered.” Absent that language, treatments or conditions not mentioned by an NCD remain covered. That principle is articulated in the Medicare National Coverage Determination Manual, CMS Pub. 100-03, Chapter 1. The foreword says “where coverage of an item or service is provided for specified indications or circumstances but is not explicitly excluded for others, or where the item or service is not mentioned at all in the CMS Manual System, the Medicare contractor is to make the coverage decision, in consultation with its medical staff, and with CMS when appropriate, based on the law, regulations, rulings, and general program instructions.”
The bottom line is that NCDs are binding, but they are not nearly as limiting as most people think. Unless the NCD specifically states that a service is uncovered, or includes the statement that “all other services are uncovered,” the NCD does not prevent you from billing Medicare for a treatment that the patient’s physician believes is medically appropriate.
Programming Note:
Listen to David Glaser live every Monday during Monitor Monday, 10-10:30 a.m. EST.
Well, it’s what we’ve all been waiting for… In a late-night move last Wednesday, Nov. 12, President Trump signed the Continuing Appropriations Act (CAA) of
Medicare and Medicaid audits differ in process. Yet one thing remains the same, in practice: the administrative process has become so burdensome that many providers
Please log in to your account to comment on this article.
Accurately determining the principal diagnosis is critical for compliant billing, appropriate reimbursement, and valid quality reporting — yet it remains one of the most subjective and error-prone areas in inpatient coding. In this expert-led session, Cheryl Ericson, RN, MS, CCDS, CDIP, demystifies the complexities of principal diagnosis assignment, bridging the gap between coding rules and clinical reality. Learn how to strengthen your organization’s coding accuracy, reduce denials, and ensure your documentation supports true medical necessity.
Denials continue to delay reimbursement, increase administrative burden, and threaten financial stability across healthcare organizations. This essential webcast tackles the root causes—rising payer scrutiny, fragmented workflows, inconsistent documentation, and underused analytics—and offers proven, data-driven strategies to prevent and overturn denials. Attendees will gain practical tools to strengthen documentation and coding accuracy, engage clinicians effectively, and leverage predictive analytics and AI to identify risks before they impact revenue. Through real-world case examples and actionable guidance, this session empowers coding, CDI, and revenue cycle professionals to shift from reactive appeals to proactive denial prevention and revenue protection.
Sepsis remains one of the most frequently denied and contested diagnoses, creating costly revenue loss and compliance risks. In this webcast, Angela Comfort, DBA, MBA, RHIA, CDIP, CCS, CCS-P, provides practical, real-world strategies to align documentation with coding guidelines, reconcile Sepsis-2 and Sepsis-3 definitions, and apply compliant queries. You’ll learn how to identify and address documentation gaps, strengthen provider engagement, and defend diagnoses against payer scrutiny—equipping you to protect reimbursement, improve SOI/ROM capture, and reduce audit vulnerability in this high-risk area.
Only ICD10monitor delivers what you need: updates on must-know changes associated with the FY26 IPPS, including new ICD-10-CM/PCS codes, CCs/MCCs, and MS-DRGs, plus insights, analysis and answers to your questions from two of the country’s most respected subject matter experts.
Get clear, practical answers to Medicare’s most confusing regulations. Join Dr. Ronald Hirsch as he breaks down real-world compliance challenges and shares guidance your team can apply right away.
Federal auditors are zeroing in on Inpatient Rehabilitation Facility (IRF) and hospital rehab unit services, with OIG and CERT audits leading to millions in penalties—often due to documentation and administrative errors, not quality of care. Join compliance expert Michael Calahan, PA, MBA, to learn the five clinical “pillars” of IRF-PPS admissions, key documentation requirements, and real-life case lessons to help protect your revenue.
During this essential RACmonitor webcast Michael Calahan, PA, MBA Certified Compliance Officer, will clarify the rules, dispel common misconceptions, and equip you with practical strategies to code, document, and bill high-risk split/shared, incident-to & critical care E/M services with confidence. Don’t let audit risks or revenue losses catch your organization off guard — learn exactly what federal auditors are looking for and how to ensure your documentation and reporting stand up to scrutiny.
Learn how to navigate the proposed elimination of the Inpatient-Only list. Gain strategies to assess admission status, avoid denials, protect compliance, and address impacts across Medicare and non-Medicare payors. Essential insights for hospitals.
Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →
CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24
