Scooter Store fights for survival

SAN ANTONIO, Texas -- The Scooter Store, now enmeshed in a thicket of legal challenges that are threatening the company's survival, lashed out at the Region D DMERC, alleging in a lawsuit that the Medicare contractor illegally used diagnosis codes as justification for claims denials and approvals. This new compliant, filed in U.S. District Court May 27, quotes a letter written by Region D Medical Director Robert Hoover, M.D., which states, "there was a limited set of diagnoses for which medical necessity was scrutinized. If the POV claim did not list one of these diagnoses, the claim was autoadjudicated based only on the claim information and the Certificate of Medical Necessity (CMN) question set." In such cases, Hoover notes that the DMERC did not request additional documentation. But if the claim did not pass the DMERCS diagnosis review, the claim was then suspended and additional documentation was called for. "They are treating a class of patients differently, and unfortunately without giving notice to patients, physicians or suppliers," said attorney Valerie Eastwood, whose firm Eastwood and Azia is among those representing the Scooter Store. The use of diagnosis codes in determining qualification started in 2002, according to Eastwood, and she has seen no indication that the DMERC policy has changed. She is uncertain, however, what diagnosis codes are being targeted for audit. "At the end of the day, this is why Congress developed the CMN, so it would be a transparent, up-front process as opposed to a behind-the-scenes process that randomly tries to pick and choose who we are going to pay," said attorney Steve Azia. For years, the Scooter Store and its Washington-based lobbying arm, the Power Mobility Coalition, have argued that the law, specifically the Paperwork Reductions Act, requires only a CMN to justify medical necessity. In this recent suit, the Scooter Store believes Region D violated that law by using diagnosis codes to screen claims. The complaint enlists CMS Administrator Mark McClellan as an advocate for its argument by quoting testimony McClellan made in a written statement to the Senate Finance Committee last year: "The clinical criteria for deciding when a manual or power wheelchair is medically necessary and appropriate for a beneficiary has been and will continue to be a matter of clinical judgment by the physician." The use of diagnosis codes in determining eligibility for a power wheelchair or POV was not used in the recently updated national coverage determination. The use of those codes, however, is at the forefront of the battle over seating and positioning codes, said Sharon Hildebrandt, executive director of the National Coalition for Assistive Rehab Technology. "The problem is that they don't always cover all the diagnosis codes that need to be covered," said Hildebrandt. "For example, someone may have a diagnosis of diabetes, and that may appear to mean that they don't need a special cushion. If they have ulcers or are subject to skin break down, that will not show up on the CMN." The Scooter Store filed its complaint in federal court after exhausting the administrative appeals process. In another action, the company filed a motion for the court to dismiss the Department of Justice's counterclaims to another TSS lawsuit. The government's claims allege that the company is involved in bait and switch techniques and questions its direct to consumer marketing.