ALJ to CMS: Pay attention to CMNs

Tuesday, May 31, 2005

LAS VEGAS -- An administrative law judge has ruled recently in two separate cases that the certificate of medical necessity is the only document needed to prove medical necessity. Both cases involved providers of power wheelchairs.
CMS has appealed one case and has until June 1 to appeal the other.
In both instances, Judge Daniel Loughry cited last summer's Maximum Comfort ruling. In that case, Judge Lawrence Karlton of the Eastern District of California ruled that Medicare auditors could not require power chair provider Maximum Comfort to supply documentation beyond the CMN to prove medical necessity. That ruling, which maintains that Congress intended the CMN to be the document of record for providing medical necessity, pertains only to HMEs in the Eastern District of California. Other power chair providers, however, including the Scooter Store, have begun using it as part of their defense during post-payment audits.
On Feb. 11, Loughry ruled that Region D DMERC, Cigna Healthcare, could not require Allstate Medical Equipment to provide information beyond the CMN to prove medical necessity. In this case, Cigna claimed that the Las Vegas provider failed to provide sufficient documentation to support claims for 10 power wheelchairs.
In another recent case involving a power chair audit, Loughry issued a similar ruling. Because CMS may appeal that ruling, the provider requested that its details remain vague. The forcefulness of the Loughry's decision in this case, however, surprised the provider's attorney.
In a position echoed by other attorneys, the attorney here said that while he may cite the Maximum Comfort ruling as part of his defense, a stronger cases rests on documentation that proves medical necessity.
"Our argument all along was that we have adequate documentation -- even if you don't use the Maximum Comfort standard," the attorney said. "We had all the other supporting documentation, including an assessment of the patient's mobility, assessment of the patients ability to use the chair safely, all that was our argument."