PMC: CMS violates act with records request

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Friday, September 30, 2005

WASHINGTON - The Power Mobility Coalition in August filed a petition with the Office of Management and Budget asserting that CMS was violating the federal Paperwork Reduction Act by requiring some suppliers to submit medical records with their power wheelchair claims.
Just two weeks later, the government released its interim final rule outlining the new paperwork requirements for mobility requirements, which takes effect in October after a public comment period.
Eric Sokol, director of the PMC, said the release of the interim final rule, in his perspective, is an admission by CMS that its previous documentation requirements were in violation of the PRA.
"While they have sort of taken away the PRA argument for claims going forward from the October implementation date of this regulation, for claims prior to them it's a tacit acknowledgement that those types of documentation requests that did not get subject to the PRA are in violation," he said.
The PMC's complaint to the OMB centered on the documentation requirements Medicare was placing on certain suppliers during the audit process. It said CMS was imposing "unapproved record-keeping requirements on suppliers," since there was no requirement on doctor's to keep such medical records. "Since the doctor can't be held accountable for something he is not required to do, how can you turn around and penalize the supplier for the content of those medical records?" said Steve Azia, an attorney for the PMC.
The OMB has 60 days to rely to the PMC's complaint, dated Aug. 12. Sokol and Azia said they hoped in the short term it would put a stop to the current audit activities. They also wanted to make CMS and the DMERCs aware of the safeguard put in place by the PRA.
"We want them to know that they can't just circumvent policy by calling for documentation without proper notice and comment," said Sokol. hme
CMS hears a mouthful at forum
HME industry asks hard-hitting questions about liability, implementation, 30-day timeframe
By Liz Beaulieu Managing Editor
WASHINGTON - A special open door forum last month on major proposed changes to how providers bill for power wheelchairs started off hot and finished even hotter.
Up first: Pleas by the HME industry that CMS delay its plan to replace the current CMN with a physician's prescription, plus a requirement that the provider keep the physician's progress notes on hand. The meeting quickly evolved, however, into a spirited back-and-forth about physician vs. provider liability when it comes to post-payment audits.
The debate, spurred by Dan Meuser, president of Pride Mobility Products, focused on whether suppliers, as "laymen," would be responsible for determining medical necessity.
While one government official said doctors were the "captains of the ship," officials didn't deny that suppliers, while not clinicians, would be responsible for translating a physician's prescription and supporting documentation into a physical piece of equipment.
That's the business suppliers are in, one official said.
HME suppliers struggled to get more concrete details from officials, who stated the purpose of the forum was to listen to concerns - not to develop new policy. CMS announced in late August that it would drop CMNs for power wheelchair and scooter claims (See related stories on pages 1, 87).
Comments shared during the three-hour forum, which had several hundred attendees and listeners, began with the Oct. 25 implementation date for the new rule. There were numerous pleas to give the industry more time to make the transition.
"We urge CMS to delay the implementation of this rule until at least April 1, 2006," Meuser said. "A few reasons include the local coverage determination. Since the LCD will provide the medical criteria for the documentation requirements, we believe that it's essential that it be implemented well in advance of the new rule. This would require postponement."
The DMERCs issued the draft LCD the day after the forum (See related story on page 1). At the forum, John Warren of CMS's Program Integrity Group said the determination would explain to a "high degree of detail" what should take place during face-to-face examination, as well as what information should be included in a prescription and supporting documentation.
In addition to waiting for the LCD, suppliers cited the need to educate physicians as a reason to delay the implementation date.
Officials downplayed the need for the delay, saying physicians have known what information they'd have to include in their medical records since May 5, when CMS issued the national coverage determination. The only thing that will be different in late October is that physicians will have to provide that information to suppliers.
Discussions then turned to the 30-day timeframe for evaluations and obtaining information from physicians. Officials said they feel strongly about keeping the timeframe in tact because "a longer period of time could result in a change in condition that necessitates a change in prescription."
While one official said the clock for the 30-day timeframe will start ticking when a physician determines a beneficiary needs a chair or scooter, or when he writes a prescription, other officials said CMS would have to provide clarification later.
The forum ended with discussion about who would be responsible for determining medical necessity. Officials said CMS was not in the business of policing physicians. A supplier asked if that meant it was his job, but one official said, "It doesn't have to be done that way" and referred to government bodies with oversight capabilities.
Officials agreed it was a "challenging question." Regardless, they maintained they weren't asking suppliers to make a "medical decision" - just a "supplier decision."

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