Deadline looms in Nichole Medical case

Friday, December 7, 2012

YARMOUTH, Maine – A former HME provider whose civil suit was struck down by the U.S. Court of Appeals for the Third Circuit has until Jan. 19 to file an appeal that he hopes will push his case to the Supreme Court.

“If an appeal is not presented to the Supreme Court by that date, this decision goes into the books as confirmed and uncontested,” said Dominic Rotella, owner of Nichole Medical Equipment.

In 2011, Rotella, who went out of business after he says he was unfairly audited, filed the lawsuit against TriCenturion, the CMS contractor who conducted the audit. Earlier this year, the U.S. Court of Appeals for the Third Circuit upheld a decision by a lower court, which ruled that CMS contractors, as “government agents,” are entitled to “official immunity.”

With the filing deadline closing in, Rotella is trying to corral support from within the industry. He says he can’t move the case forward without outside financial help and legal resources.

“We need to have at least a quarter million dollars on hand,” he said, adding that, while his current legal counsel would do “anything and everything,” to help, “they cannot absorb the costs.”

Marcus Suess, president of All-States Medical Supply in Fletcher, N.C., has contributed to Rotella’s cause.

“CMS can suspend or revoke a number when they were admittedly in the wrong, and then have no retribution,” he said. “How can providers think this may not happen to them one day?”

Suess would like to see the industry unite behind Rotella.

“This is so huge and people are not aware of it and think it’s only affecting one person,” he said. “I can’t understand why people don’t see how it can affect their business.”

To read previous stories by HME News on Rotella’s case, go to Update: Nichole Medical vs. TriCenturion and Update: Dominic Rotella vs. TriCenturion.


After reading the well written article above by Leif Kothe it is most important that you allow me to further explain some of the most gory details of this case and what it means to the industry. Pleae read below.

I fully understand and am sympathetic with everyone's exhausted effort in the battle waged by the industry to counter Competitive Bidding and even more so I understand the exhausted pensiveness from the rampage of erroneous audit requests from the CMS Contractors. If you, however, give me the coutesy of continued reading below it may prove these are the least of the industry's problems.

Let's look at the facts of Nichole Medical vs. Tri-Centurion & NHIC. More than ten years ago Tri-Centurion conducted an unannounced audit on the company. The timeline was published by Leif in a previous article. After campaigning through every appeal step outlined by CMS's instructions the final appeal process, The Medicare Appeals Council concluded the following. First, the audit provided "lack of evidence". Second, the audit process used violated the statute and the rules & regulations established by The Secretary Of Health to conduct an audit. Finally, this is the biggest error, an audit such as this, CAN NOT be done on the basis someone might (and the word might is in bold letters in their Decision) be billing inappropriately.

This indisputable Decision by The MAC is probably the most compelling case of NEGLIGENT ineptness the industry will ever see in any case associated with any audit issue or a CMS contractor's actions. ALL these issues and facts were presented to both The Third District and Third Circuit Courts. The following is the result of their examination of this evidence.

The Third District ackowledged these infractions, however, cast upon the CMS Contractor an imaginary veil of "Outer Perimeter Discretion" dismissing them from any wrongful action campaign against them. The Third Circuit in it's review of The Third District's ruling affirmed this "Outer Perimeter Discretion" veil. To compound the application and influence of this Decision The Third Circuit has a Supreme Court Justice, Sandra Day O'Connor's signature on it. This signature would probably rank this Circuit Court Decision as one of the most influential Circuit Court Decisions for ALL other Federal Courts to Follow ever written. I did write previously, CMS was taking this case very seriously!!

This is the industry's biggest problem currently! Why, because any/all legislation passed or any/all CMS concession of rules & regulations alleged infractions would have to fall ouside this Outer Perimeter Discretion" to have any impact or application. This Decision says when a government contractor is on the government's clock whatever actions they do or whatever infractions they may commit this imaginary "Outer Perimeter Discretion" protects them from any adversity a Provider may claim against them. Legislature DOES NOT and CAN NOT legislate The Judges!

In a sporting event you would be synonymous with a program having rules but WITHOUT referees to enforce the rules because it won't matter what legislation could, would or may be passed it would take the application of The Federal Courts to enforce them.

The industry for NOW is in CHECKMATE game over unles a Supreme Court Decision can either overturn this imaginary "Outer Perimeter Discretion" or at minimum define it with some tangible parameters! It is most unlikely that any legislation would undermine this Decision with a Supreme Court Justice's name on it. Even though she is retired the rank of Supreme Court Justice is a liftime appointment and as such she remains as a Supreme Court Justice forever.

The industry needs to galvonize and face this issue head-on because if it doesn't it won't matter what legislation is passed. The Federal Court would have to be convinced that whatever alleged violation would ocurr by a contractor it would have benn committed outside this imaginary "Outer Perimeter Discretion"! January 19th is important because with NO further action on this case this Decision will be entered into the law books and ALL Medicare Providers will then be operating at your own risk. The Federal Courts will NOT protect you. Please, keep in mind that Competitive Bidding is administered by Contractors and this Decisions reads Contractors!

My Lawyers and me have taken this campaign as far as we could possibly go. I do not have the financial resources to properly attempt taking this campaign to The Supreme Court and my Lawyers can not afford to absorb the costs of the many man hours of research and lobbying efforts needed to properly attempt this undertaking either. I am NOT admitting defeat because I have been able to get this issue to some resolution and elevation of review further than anyone else has ever done or attempted to do. Defeat is reserved and would ONLY come at the hands of an industry that ignores the graveness of this Decision and allows it to go on the lawbooks uncontested January 19, 2013 with NO further Appeal or action taken thereby accepting this Decision as everlasting.

I personally owe a great deal of thanks to Marcus Suess, his dad, Frank, for their recognition as to the severe gravity of this case and the issues it presents for the industry from over a year ago. When I first informed the industry through HME News of it's events they jumped right in without any hesitation. I am most thankful for their support and the support of those that followed as a result of the Suess' family efforts.

In the grand scheme of this campaign as the military would view it we are only a Platoon on a mission that requires the support of an army to continue moving the campaign forward!!

Anyone wanting to reach me can do so "E" Mailing me.