Government Appeals Maximum Comfort Case

SAN FRANCISCO, Calif.–The government has appealed a federal
judge’s ruling that a properly completed certificate of medical
necessity is proof enough for provider reimbursement.

“The ball’s in their court now,” said Maximum Comfort President
Tom Lambert, who filed a lawsuit against the Department of Health
and Human Resources several years ago after a government decision
that Medicare overpaid his company because of inadequate
documentation for power wheelchair claims from 1998 to 1999.

In March of this year, Lambert received a final favorable ruling
from Judge Lawrence Karlton of the Eastern District of California,
who stated that a DME supplier should not be required to submit
additional medical records beyond a CMN for reimbursement.

HHS Attorney Ana Maria Martel filed the appeal May 4, and the
case will now move to the 9th U.S. Circuit Court of Appeals in San
Francisco. According to a court timetable, the case should be
argued in January of next year. Martel declined further
comment.

“If you read [the judge’s] original decision, a lot of his
citings were of cases held in the 9th Circuit,” Lambert said, “and
that’s where this thing’s going.”

The judge’s preliminary decision in his favor, which was issued
in June 2004–nine months before the final decision was handed
down–has been used in claims appeals nationwide, but with limited
success, Lambert said. “A lot of dealers are reporting that the
[Administrative Law Judges] in their regions are ruling … based
on our federal court decision, but that these decisions … are
being overturned by the [Medicare Appeals Council].”

In a recent case over a power chair claim involving Allstate
Medical Equipment of Las Vegas, the Council turned down an appeal
that cited the Maximum Comfort decision, stating that it “is not
controlling in these cases with respect to the authority of the
Medicare program to request additional medical documentation to
determine whether claimed items are reasonable and necessary
….”

After the preliminary ruling in Lambert’s favor, he was
instructed to make a request to get back the money Medicare
recouped from his company during the claims appeals process, an
amount he determined to be $425,000 in principal and interest. But
in his final ruling, Judge Karlton said the court does not have the
power to tell the government how much it owes Maximum Comfort and,
instead, left it up to HHS to determine the amount.

Ironically, since receiving the ruling, Lambert has downsized
his Medicare business and now is sending 60 percent of his business
to Medi-Cal, California’s Medicaid program.

“You may have to submit different paperwork three, four or five
times, but in the end [Medi-Cal] pays you, and they don’t take the
money back and conduct a post-payment audit two years later,”
Lambert explained. He added that, unlike Medicare, the state
Medicaid program requires prior authorizations for most equipment,
not just power chairs.

“When the state of California can do a prior authorization for
claims over $100 in the Medicaid program, why can’t the federal
government do it?” he asked.