Home Health & Hospice Week

Don't give up your additional wheelchair documentation just yet.

Suppliers are celebrating a favorable federal court decision regarding certificates of medical necessity for power wheelchairs, which could free them from extensive documentation requirements.

In a June 28 decision, California federal judge Lawrence K. Karlton shoots down the Department of Health and Human Services' position that wheelchair suppliers must submit documentation such as patient records in addition to a CMN to prove medical necessity for power wheelchairs.

"This is clearly great news," cheers attorney Robert Falk with Powell Goldstein Frazer & Murphy in Washington, DC.

The court rules that the CMN "is the Medicare document of record and that the Centers for Medicare & Medicaid Services (CMS) cannot require [durable medical equipment] suppliers to obtain medical records and make judgments as to whether the medical equipment is reasonable and necessary," explains the Power Mobility Coalition in a message to members.

"This is extremely good news to all suppliers who rely on the CMN to determine Medicare eligibility for power wheelchair coverage," the association says.

"Judge Karlton's decision has implications well beyond power wheelchairs," points out attorney John Wester with Sidley Austin Brown & Wood in Washington, DC. It could influence policy for any DME requiring a CMN.

The problem: The lawsuit was sparked by two post-payment audits conducted at Maximum Comfort, a California-based supplier serving that state, Oregon and Nevada. In 2000 Maximum's DME regional carrier, CIGNA HealthCare, audited 1998 and 1999 claims for power wheelchairs in two locations, according to Maximum Comfort v. Thompson (No. Civ. S-03-1584).

Because Maximum submitted only CMNs as medical necessity documentation, CIGNA retroactively denied a number of wheelchair claims and assessed an overpayment, using statistical extrapolation, of more than $785,000. When the supplier appealed to the administrative law judge, two different ALJs reversed the carrier's determinations for each audit.

But the HHS Departmental Appeals Board Medicare Appeals Council overturned those decisions, claiming they contained "errors of law."

So Maximum filed an appeal in California federal court in July 2003. The supplier argued that only a CMN is required by Medicare law, and that HHS has no authority to require additional documentation such as patient records to prove medical necessity.

HHS countered that Congress gave it broad authority to set medical coverage criteria and documentation requirements, and that Medicare law doesn't specify the CMN as the sole medical necessity document.

The issue is whether HHS can require the supplier to "obtain and submit medical documentation in addition to the CMN to prove the medical necessity and reasonableness of the motorized wheelchairs it supplies," the decision notes.

And the court's decision: It can't. Congress does give HHS leeway to set medical coverage criteria for wheelchairs, the court says. But the law is pretty specific that the CMN is the only documentation required from a supplier to prove the patient meets those criteria.

In fact, it isn't suppliers'place to "second guess physicians' professional conclusions by making medical necessity judgments themselves" after combing through patient records, Judge Karlton insists.

Another argument: HHS complains the current CMN doesn't address all the medical necessity criteria for wheelchairs, so carriers must require additional patient records to make determinations. The court agrees the CMN is inadequate, but says that is CMS' own problem since it drew up the certificate in the first place.

If it wants to fix the problem, CMS must revise its CMN form rather than place unlawful extra documentation requirements on suppliers, the decision says.

The opinion "essentially reaffirms the notion that physicians, not suppliers, are responsible for making medical necessity determinations," Wester lauds. "Under this opinion, if a physician certifies in a CMN that an item is medically necessary and a supplier relies on that certification when providing the item, the supplier should be paid for the item regardless of what CMS may find in the patient's medical records."

While the industry welcomes this favorable decision, suppliers should be careful not to assume it applies to them immediately. The ruling applies only to suppliers in the Eastern District of California, notes attorney Jeffrey Baird with Brown & Fortunato in Amarillo, TX. If the case goes to federal appeals court, then the decision would apply to states the court covers. If the case makes it all the way to the U.S. Supreme Court, it would apply nationwide, Baird explains.

But the district court decision is a precedent that other district courts -- as well as ALJs and the MAC -- may follow in similar cases, Baird adds.

What you should do now: "Continue to document and supply CMS all information requested until such time that CMS withdraws such requests," PMC recommends.

"Now is not the time for people to start relying on the CMN only," Falk agrees. But suppliers can expect good things ahead -- "this is finally the light at the end of the tunnel, and it's not an oncoming train," Falk quips.

Before CMS makes any changes to its CMN and medical review practices, suppliers can expect a "contentious" appeal of this decision, Falk predicts.

"Suppliers would be well advised to await a further decision in the case before changing their policies or practices for documenting medical necessity," Wester counsels.

However, now is a perfect time for CMS to make changes to the CMN, Falk contends. The agency is overhauling its wheelchair coverage guidance (see Eli's HCW, Vol. XIII, No. 22) and making other wheelchair-related changes in the wake of Operation Wheeler Dealer.

"It's high time the form gets more information from physicians on the patient's condition," Falk judges. Then it can become a true tool to determine medical necessity.

If CMS does undertake CMN revision, suppliers can expect it to be a lengthy process, he forecasts.

Editor's Note: The court decision is at http://207.41.18.73/caed/DOCUMENTS/Opinions/Karlton/03-1584.pdf. The MAC decision is at www.hhs.gov/dab/macdecision/maxcomfort.htm.