CMN ruling leaves CMS speechless

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Sunday, July 11, 2004

July 12, 2004

SACRAMENTO, Calif. - CMS declined to comment last week on a U.S. District Court ruling that stated Medicare can’t require a provider to furnish documentation beyond the CMN to prove medical necessity.
The decision favors Maximum Comfort, a Redding, Calif., DME that filed a complaint against HHS Secretary Tommy Thompson. The appeal hinged on the Region D DMERC’s attempt to recoup an overpayment of almost $780,000 related to power wheelchair claims.
CMS declined to comment on the ruling, but because requests for additional documentation form the cornerstone of Medicare’s audit process, industry insiders expect CMS to appeal.
“My guy followed the law to a “t”, and that is what we’ve been arguing for the last five years and it has been validated,” said attorney Bart Fleharty, who represented Maximum Comfort. “The CMN was created to reduce paperwork and provide medical necessity. How quickly we forget.”
The decision is binding only in the Eastern District of California where the judge resided. In other parts of the country, providers can use this precedent-setting ruling when appealing an audit, said Jeff Baird,  a healthcare attorney with Brown & Fortunato in Amarillo, Texas.
From a practical standpoint, outside the Eastern District of California, the fair hearing officer will most likely not be persuaded by the Maximum Comfort decision. Administrative law judges will most likely be persuaded as will the Medicare Appeals Council, Baird said.
“We are excited by this, and I hope it will  have a positive impact,” said healthcare attorney Steve Azia of Eastwood and Azia in Washington. “We are seeing time and again where claims are being denied by some nurse reviewer’s arbitrary interpretation of progress notes.”
By ruling in Maximum Comfort’s favor, the judge overturned a Medicare Appeals Council ruling that stated CMS could require documentation beyond the CMN. The appeals council had previously overruled decisions by two administrative law judges that CMS couldn’t request the additional documentation.

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