Will the Centers for Medicare and Medicaid Services (CMS) ever decide to change the national policy regarding medical necessity documentation? I doubt it, at least not in the near future.
CMS has had the ability to recoup much of providers' hard-earned reimbursement by holding them responsible for what is written in physician's progress notes. Have you ever read those notes? I have boxes of examples in my office from working on provider audits, and I can tell you that most are useless.
Why not revise the Certificate of Medical Necessity (CMN) so it contains the information required by the Durable Medical Equipment Regional Carriers (DMERCs) and CMS? Per Judge Lawrence Karlton's preliminary ruling in the Maximum Comfort case in the Eastern District of California, “[The existing statute] plainly specifies that Congress intended that whatever information may be required by carriers from suppliers to show the medical necessity and reasonableness of DME must be contained in a CMN.”
The final ruling will only be binding in the Eastern District of California. CMS will most likely file an appeal since the agency feels it needs to see physician notes to determine medical necessity. I am sure they feel they cannot police fraud and abuse otherwise.
But since the physician has always been considered the “captain of the ship” who determines medical necessity, how can CMS expect a provider to do the same? CMS' response has always been, “The providers are the ones receiving reimbursement for the item from Medicare, so they are responsible.” Can you imagine walking into a doctor's office and telling him you do not feel he is correct in prescribing particular equipment for his patient? It would not take long for you to be thrown out of the same door you came in!
To be sure, the CMN needs improvement. For example, it asks no questions regarding clinical evaluations by a physical or occupational therapist, or on physician progress notes. Although one coverage criterion states that the patient must be capable of safely operating power wheelchair controls, the CMN doesn't address the issue.
Why isn't there a question that asks, “Without the use of a power wheelchair, would this patient be bed- or chair-confined?” or, “Is this patient non-ambulatory?” The CMN should ask physicians to note any special conditions or problems relating to a patient's medical needs. Oddly enough, Medicare does not see a physician's Letter of Medical Necessity (LMN) as meaningful in the decision-making process, even with a physician's signature.
A well-written CMN should make it possible for CMS to be assured that the physician answers questions detailing all criteria per Medicare policy, and that the patient qualifies.
The Maximum Comfort ruling states that Congress, not CMS, sets the criteria and documentation necessary to demonstrate Medicare eligibility for DME items. Since Congress states the CMN is sufficient for reimbursement purposes, why have things gotten so out of control? Providers must stand up for their business and our industry. Work all of your denials. If you have to go through all five steps of the appeals process to receive reimbursement for items you delivered, then go for it!
I strongly believe providers in all four regions should and will use this court ruling as precedent when faced with overpayment. This case is the eye-opener that providers have needed for some time. Thanks, Maximum Comfort, for a job well done.
For more information on the California court case involving Maximum Comfort, see the August 2004 issue of HomeCare.
Jane Bunch is CEO of Kennesaw, Ga.-based JB&CS. A reimbursement specialist, Bunch delivers educational seminars worldwide, helps develop corporate compliance plans and serves as a consultant for fraud and abuse cases. She can be reached at 678/445-1221 or via e-mail at BILLHME@aol.com.
