U.S. Supreme Court Sides with CMS in Maximum Comfort Case

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.