REDDING, Calif.--The U.S. Supreme Court refused last week to review an appeals court decision that further documentation beyond a CMN could be required for Medicare to pay a claim for a power wheelchair. But petitioner Tom Lambert said he'll continue the fight and will likely pursue another appeal.
Lambert, the owner of Redding, Calif.-based Maximum Comfort, said he was not surprised by the Oct. 6 decision.
“I didn't think they would bother with it. I figured our chances were slim to none, and slim already left town,” Lambert said. “We'll appeal … we'll go back to where it was started, federal court, is my understanding.”
Lambert said there were some issues that had not even been considered in the earlier court decision, including the means--called extrapolation--by which CMS determined how much his company owed Medicare in repayment for the wheelchairs in question. It is probable that his next appeal will focus on that and perhaps other issues included in the original complaint, he said.
“We've already paid them $400,000 or $500,000,” said Lambert, whose company was originally told it owed $785,000. “We don't even know who owes who what. Based on the original numbers, there would still be money owed [CMS].”
But if the extrapolation does not stand under a future appeal, “then they owe us money,” Lambert said.
Lambert started his fight in 1999 after a post-payment audit by the-then Region D DMERC determined Maximum Comfort had failed to submit documentation in addition to the CMN that would prove medical necessity for K0011 chairs sold from 1998 to June 1999.
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 again won the decision. The court said Medicare could not require suppliers to obtain beneficiaries' medical records or to make judgments about whether equipment was medically necessary. The U.S. Court of Appeals for the Ninth Circuit subsequently overturned that decision.
Lambert then petitioned the U.S. Supreme Court for a review, claiming that a provider has no way of compelling a physician to release a beneficiary's medical records to support the equipment prescription.
“We're not medical professionals, we don't claim to be and we never were,” Lambert said. “Don't make us make the decision as to whether or not the equipment is medically necessary.”
However, in its Oct. 6 decision to deny, the Supreme Court upholds the Dec. 21, 2007, ruling issued by the Ninth Circuit Court, which maintains that other documentation beyond a CMN may be required by Medicare in order for a provider to be reimbursed.
Ironically, the issue itself is moot because CMS no longer requires a CMN for reimbursement of power wheelchairs. Still, Lambert believes his is a battle worth fighting.
“The problem with Medicare is that they won't give you a good enough definition of what they want to see in your files in a post-payment audit, so what you have might not be good enough,” he said.
Also, by the time the post-payment audit occurs, which can be two years out from the time the equipment was provided, it might be impossible to get the information CMS is suddenly requiring. “When the patient's dead or the doctor's dead, you're out of business,” Lambert said.
No matter what might happen with a future appeal, Lambert is basically out of the Medicare business. In the past nine years, he has lost his home, reduced his business and filed for bankruptcy as he's fought with CMS over the CMN issue. He now does mainly Medi-Cal, and he's happy with that.
“Before we buy the equipment, we have a prior authorization, so they've seen the reports from the physical therapists and the physicians in the pre-payment audit. If they don't approve it, we don't deliver it. It's simple,” he said.
“We thought we were doing everything by the book with our CMNs,” he added. You have to be nuts to do Medicare.”
To read how it all started, see HomeCare, August 2004.