Industry attorneys test ruling that limits post-payment audits

Sunday, October 31, 2004

REDDING, Calif. - Industry attorneys have begun using - or at least thinking about using - the Maximum Comfort ruling to help defend providers who have been audited by CMS and ordered to repay thousands of dollars in alleged improper reimbursement.

The June ruling, which revolved around about $700,000 in K0011 claims, states that CMS can’t request physician progress notes and other documentation beyond the CMN to prove medical necessity. Technically, the ruling applies only to the eastern district of California where the judge decided the case. Healthcare attorneys, however, have begun citing the ruling in other parts of the country to bolster their arguments.

“We think that as a matter of legal principle, it has significance and importance,” said one industry attorney who asked to remain unnamed. “We think it is relevant to the paperwork and documentation that the supplier needs to provide.”

This particular attorney said he’s had some luck incorporating the Maximum Comfort ruling into his arguments before administrative law judges.

At the hearing or review stage, however, the first and second levels of the appeals process, the Maximum Comfort ruling does little or nothing to bolster a provider’s argument. If fact, at these early stages, DMERC officials have been told to ignore the ruling, say industry watchers.

Attorney Neil Caesar tried using the ruling recently at the DMERC review stage and received from the carrier 10 pages of the supplier manual that discussed why the carrier can go beyond the CMN to determine medical necessity.

The best strategy in fighting an audit is still to make sure the doctor’s notes and other relevant documentation support the claim, say Caesar and other healthcare attorneys.

“As an attorney, we’d be committing malpractice if we went in right now to an ALJ hearing in West Virginia or Tennessee and waived around Maximum Comfort and said this is our argument,” said Jeff Baird, a healthcare attorney with Brown & Fortunato in Amarillo, Texas. “You can’t do that. You can use it as a secondary argument, but you still have to present your evidence.”