REDDING, Calif.--A federal appeals court has overturned a lower court's ruling that held a certificate of medical necessity was sufficient for Medicare to pay a claim for a power wheelchair, but the plaintiff in the case says he'll appeal the new ruling all the way to the U.S. Supreme Court.
Tom Lambert, owner of Maximum Comfort in Redding, Calif., said Friday he would exhaust every legal option open to him. "I'm not going to throw in the towel now," he said, adding that he and his attorney, Bart Fleharty of Wells Small and Selke in Redding are trying to figure out "whom to complain to now."
The ruling, issued Dec. 21 by the U.S. Court of Appeals for the Ninth Circuit, maintains that other documentation may be required by Medicare in order for a provider to be reimbursed. That ruling negates a June 2004 opinion by the U.S. District Court for the Eastern District of California that Medicare could not require Maximum Comfort to submit more documentation beyond a CMN for reimbursement of a power wheelchair. The court in that decision said Medicare could not require suppliers to obtain beneficiaries' medical records or to make judgments about whether equipment was medically necessary.
The Ninth Circuit court, however, said the CMN was not required and its information was limited. Referring to a Medicare Act subsection about CMNs, it states: "The subsection does not state that the certificate of medical necessity is the sole vehicle for claims reimbursement, nor does it state that a completed certificate, establishes, by itself, a right to reimbursement.
"We conclude," the new opinion reads, "that the applicable provisions of the Medicare Act do not make the certificate conclusive and that the [Secretary of the Department of Health and Human Services] may require additional documentation to establish medical necessity. We accordingly reverse the decision of the district court."
The ruling was a disappointing one for Lambert, who started his fight in 1999. At that time, a claims audit by the then-Region D DMERC determined that Maximum Comfort had failed to submit documentation in addition to the CMN to prove medical necessity for K0011 chairs. Post-payment auditors concluded that the provider owed Medicare $785,000. (See HomeCare, August 2004.)
After the company appealed, two administrative law judges ruled in Lambert's favor, saying that, for the supplier, the CMN was indeed the only medical record necessary, but the Medicare Appeals Council subsequently reversed those decisions. Lambert then filed suit against the Department of Health and Human Services, and the case ended up in U.S. District Court for the Eastern District of California, where he won the decision that was just overturned.
Ironically, the issue itself is moot because CMS has since revised its requirements for PWC reimbursement, and a CMN is no longer necessary.
Indeed, said Lambert, that is likely to be a basis for an appeal, since attorneys for HHS argued that the CMN was an optional document, not a mandatory one.
"That was true as of June 1999," Lambert said. But the claims in question ran from 1998 to June 1999 and thus did not fall under the new rules. "They are taking the new rules and trying to apply it to old business," he said.
The new opinion also says that Maximum Comfort is not "excused from liability." That means Lambert might ultimately have to repay Medicare, but how much is a big question mark. "I don't have a clue," he said.
In the past nine years, he has already lost his home, reduced his business and filed for bankruptcy while contesting the original post-payment audit. But Lambert says things are better these days because he chose to fight Medicare.
"You know what the rules are now. I think the dealers are safer
today than when we thought the CMN was it," he said.