CMN Stands Alone in California
DME industry advocates are applauding a June 28 California Federal District Court ruling that distinguishes the certificate of medical necessity (CMN) as the only document required for confirming medical necessity information for processing Medicare claims. At the same time, those industry activists are warning that dealers cannot count on this decision to be upheld nationwide.

Timothy Webster, JD

“Although the decision is not binding outside of the Eastern District of California, it is certainly a positive development for providers,” says Timothy Webster, JD, an attorney with the Health Care Group of Brown & Fortunato PC, Amarillo, Tex. “However, it is not time to break out the champagne just yet.”

The verdict came in response to a case brought by Maximum Comfort Inc, a DME supplier with stores in Redding and Sacramento that had been subject to two audits by the Region D durable medical equipment regional carrier, CIGNA. The audits alleged that Medicare had overpaid Maximum Comfort more than $785,784 during 1998 and 1999 for claims that “insufficiently documented the medical necessity of wheelchairs,” even though appropriate CMNs had been submitted, according to the court report.

Senior Judge Lawrence K. Karlton ruled that the CMS could not require suppliers to submit patient medical records in addition to the CMN to document the medical necessity for a power wheelchair payment.

The Restore Access to Mobility Partnership (RAMP) hailed the verdict as unprecedented and is urging DME suppliers nationwide to cite the decision in their own appeals of similarly denied or delayed claim payments. The ruling “sends another clear message to CMS that its method of processing claims is seriously flawed and that the current Medicare coverage policy is both confusing and inconsistent,” says a press release issued by RAMP.

Webster notes, though, that the case likely will be appealed and may face further scrutiny if used in testimony in front of other regional US courts.

“If other courts find the reasoning of the Maximum Comfort decision unpersuasive, then the decision may turn out to have little impact,” Webster says. “Providers have won this round, but it is much too early to declare a victory.”

The court, says Bryan Dylewski, CEO of Holly Hill, Fla-based Mobility Products Unlimited LLC, a member of RAMP, “has fixed one problem, in one small area of the country. The reality is that we need for CMS to fix the problems across the entire country. That’s the only way that we can be sure that Americans with disabilities have access to the equipment that can increase their mobility.”

For now, DME providers can rejoice in at least one small victory as they continue to work with CMS to develop new power mobility coverage standards and possibly revise the CMN, a solution the judge suggested might solve CMS’ contention of a lack of sufficient medical information.

“The Power Mobility Coalition (PMC) has always maintained that physicians are the ones who should be making the determination as to whether or not an individual needs the use of a motorized wheelchair,” says PMC Director Eric Sokol. “This ruling helps cut through the bureaucratic red tape and allows those in need to receive their chairs as quickly as possible.”

OIG Says Scully Broke No Laws
While former CMS Administrator Tom Scully may have kept some of the financial details of the Medicare prescription drug bill under wraps, he did not break the law in doing so, according to a recent Office of Inspector General investigation (OIG).

Tom Scully

A report issued by Dara Corrigan, acting principal deputy inspector general, Department of Health and Human Services, says that Scully warned CMS Chief Actuary Richard Foster that he would discipline him if he released certain Congress-requested information about the cost of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). Scully told other staff members that he would fire Foster if he disregarded his warning. However, Scully initiated no disciplinary actions, and his conduct violated no criminal laws, the investigation revealed.

“If Scully were still employed as the administrator of CMS, we would have referred this matter to the Department for possible administrative action associated with the Department’s Standards of Ethical Conduct,” Corrigan wrote in the report. “Since Scully is no longer a federal employee, such a referral is not being made.” In December 2003, Scully left CMS to work at Alston Bird, a Washington law office.

Until January, Congress knew only of the Congressional Budget Office’s cost estimate of $395 billion over the next decade; meanwhile, Foster had been predicting a cost of $500 billion to $600 billion since the previous spring, according to a March 17 Washington Post report. Independently, Foster could not legally disclose information to Congress, according to the OIG report. While investigations continue, the OIG says it will release no further information.

CMS To Launch Homebound Demonstration Project
S tarting this fall, as many as 15,000 beneficiaries in Missouri, Colorado, and Massachusetts will be able to leave their homes more often and for longer periods of time without the fear of losing their Medicare home health services benefits. The new mobility freedoms will be part of a CMS demonstration project that employs a more liberalized definition of the term “homebound.” Current rules used to determine qualification for the Medicare home health services benefit specify that any time away from home must be “infrequent or of short duration.”

The demonstration is authorized by the Medicare Prescription Drug, Improvement, and Modernization Act enacted late last year. Officials from the Department of Health and Human Services say the goal is to determine the cost impact on the demonstration for patients with chronic illnesses—a population that otherwise may be at risk for costly institutional care. To qualify for the demonstration, Medicare beneficiaries must have a permanent, severe disability that is not expected to improve.