(a) Elements of the NCD record furnished to the aggrieved party. Except as provided in paragraph (b) of this section, the NCD record consists of any document or material that CMS considered during the development of the NCD, including, but not limited to, the following:

1. (1) The NCD being challenged.

2. (2) Any medical evidence considered on or before the date the NCD was issued, including, but not limited to, the following:

   1. (i) Scientific articles.
   2. (ii) Technology assessments.
   3. (iii) Clinical guidelines.
   4. (iv) Statements from clinical experts, medical textbooks, claims data, or other indication of medical standard of practice.
   5. (v) MCAC transcripts.
3. (3) Public comments received during the notice and comment period.
4. (4) Coverage decision memoranda.
5. (5) An index of documents considered that are excluded under paragraph (b) of this section.

(b) Elements of the NCD record not furnished to the aggrieved party. The NCD record furnished to the aggrieved party does not include the following:

1. (1) Proprietary data or privileged information.
2. (2) Any new evidence.