Can CMS request info beyond CMNs?

Wednesday, May 31, 2006

YARMOUTH, Maine - Now that there are two conflicting rulings on whether CMS has the right to request power wheelchair documentation beyond the CMN, the industry has begun wondering what's in store for pending litigation.
A little over a year ago, a federal district court ruled in favor of the California-based Maximum Comfort, saying CMS wrongly demanded that the provider repay $600,000 for not supplying documentation beyond the CMN. CMS appealed the decision to the 9th circuit court, and the two parties now await a court date. In March, another federal district court ruled against Maryland-based Mackenzie Medical, saying CMS had the right to request documentation beyond the CMN.
"Other district courts can choose to follow the Maximum Comfort case, and they can choose not to," said Jeff Baird, a healthcare attorney with Brown & Fortunato in Amarillo, Texas. "Obviously, in the Mackenzie Medical case, the district court chose to make a decision that's the 180-degree opposite."
The dueling decisions set the stage for a circuit court decision in the Maximum Comfort case that could carry more weight, at least in the industry's mind, sources said. Legally, court decisions don't set precedents outside of their jurisdictions, but they can influence other decisions, said Lester Perling, an attorney with Broad and Cassel, a law firm with locations in Florida.
(Perling represents Gulf Coast Medical, a Florida provider who has appealed a federal district court ruling that CMS has the right to request documentation beyond the CMN. Like Maximum Comfort, it awaits a circuit court date.)
Furthermore, courts and attorneys can use court decisions to support their own decisions and arguments, Perling said.
The recent Mackenzie Medical decision doesn't spook Tom Lambert, president of Maximum Comfort. The two cases are like "apples and oranges," he said, because Maximum Comfort won on the ALJ level and Mackenzie Medical did not.