Audit notebook: CNN, legislation and an olive branch

Friday, February 28, 2014

YARMOUTH, Maine – In the wake of the Feb. 12 forum on audits, the big question is: Where does the HME industry go from here?

From a legal perspective, one of the few options is a constitutional challenge that argues the backlog in processing appeals and the delay in assigning cases to the administrative law judges (ALJs) are obstructing due process, says healthcare attorney Edward Vishnevetsky.

“But that’s an uphill and costly battle,” said Vishnevetsky, an associate with Munsch Hardt. “There are national and state groups that want to make it happen, but they don’t have the financial resources. Individual providers and manufacturers have to come up with a way to do it.”

In light of that, Vishnevetsky believes there are three keys to leveraging the momentum from the forum to forge real change: 1.) HME stakeholders need to align themselves with other Medicare Part B providers to come up with a “concerted effort”; 2.) When lobbying lawmakers, they need to make clear that they seek relief legislatively because the courts have lack of jurisdiction legally; and 3.) they need to take their case to the national media.

“If this story went on CNN, what’s happening to providers would get a lot more traction,” he said.

AAHomecare’s Tom Ryan says the association is working on all of that and more, including legislation.

“We’re trying to come up with legislative language that we can get several groups to sign on to—it’s becoming such an issue for home health, as well,” said Ryan, president and CEO. “We’re getting the final draft reviewed and then we plan to go to the executive committee with it.”

AAHomecare is also trying to arrange a sit-down meeting with stakeholders, Chief ALJ Nancy Griswold and CMS officials, Ryan says.

“While we have to be prepared with legislation, we want the olive branch out and we want to try and work within the agency,” he said.


Interesting!!!  Nothing that hasn’t been brought to the front before with my tenacious comments and writings.  This tandem does beg several questions that I believe should be answered.

Please, before I ask my questions let me remind the entire health care community of Providers that my comments and writings as related to this issue are a result from a decade of experience in the NO holds barred trenches and NOT an assumption or interpretation of anything from the sidelines!!!

First, the constitutionality?  With all due respect to Mr Vishnevetsky with whom I have had the pleasure of several conversations pertaining to this issue of CMS Contractors in the past.  I actually raised a constitutionality issue with several lawyers many years ago as related to Nichole Medical and the lack of due process as related to my Company.  As I understand it “we the people” refers to the actual citizens and does NOT cover fictitious entities.  So I am NOT sure it can be that.  Is this a right to a speedy trial scenario or the 90 day rule?  The speedy trial as I understand the legal system is only for “Criminal” cases; so it can’t be that.  Is it the 90 day rule for ALJ adjudication as in the statute?  If yes, then that begs another question.  Does the 90 day rule apply to The Medicare Appeals Council?  If no, then that begs another question.  On the order of The Secretary or The Administrator could ALL ALJ Decisions be remanded to The MAC for accuracy and review?  If yes, then that begs a final question on this topic.  Wouldn’t you be years down the road after CMS files ALL the extensions and Appeals it has available also having spent an insurmountable amount of money to be exactly where the industry is today!!!?  You would also have to undoubtedly be prepared to go before The Supreme Court to win because CMS won’t let any issue it loses stop short of it.  They will file to both levels of Appeal!!!

Just some clarity on this issue if you please as to other weapons CMS may have to gridlock cash flow!!

Second, legislation?  What legislation is being asked?  With all due respect to whomever the people are currently drafting anything I would hope that you ALL have read The Third Circuit Decision and thoroughly understand it’s contents because if you DON’T or have NOT you may NOT get what you ask from any legislation passed.

Some have viewed The Third Circuit Decision in a bad light.  While I would never argue it was not the Decision my Attorneys or me wanted The Three Member Panel did something unique.  The ONLY Decision really required of them was to either affirm the Lower District Court Decision, which they did or overturn it and remand the case back to the Lower Court for trial.  

This being said, what was unique about what they did was to spend five months April 20, 2012 - September 13, 2012  crafting a document spelling out ALL the statute paragraphs and prior court citations as to why and how they formulated their Decision.  May I boldly suggest everyone

                         “LEARN FROM IT”!!!  Do NOT ignore this Decision as you have for 2 ½ years!!!!

I spent many years and my own money to get it!!!   These three Judicial minds have clearly spoken as to how the laws governing CMS have been written with the extension of power given CMS approved by Congress signed by The President and upheld in The Courts!!!  It can be argued this Decision is ONLY a Circuit Court Decision making it only applicable within it’s own Circuit and NOT a Supreme Court Decision that would be applicable in every Circuit.  What can NOT be argued is that The Third Circuit Decision was co-authored and signed by a Retired Supreme Court Justice.  That being said another Circuit ignoring this Decision would be in disagreement with The Retired Supreme Court Justice. 

                               Very, most, highly (or whatever superlative you wish to use) Unlikely!!!  

Nowhere in The Third Circuit Decision does it read they approved or advocated Tri-Centurion’s actions nor does it stipulate my Company and employees did NOT incur damages or was NOT deserving of damages.  Nowhere in The Third Circuit Decision does it read The Decision is only applicable to Nichole Medical Equipment.  Nowhere in The Third Circuit Decision does it read The Decision is only applicable to HME or DME Providers.  

                     You may also find This Decision could answer any constitutionality argument raised!!