SAN FRANCISCO, Calif.--The government has appealed a federal judge's ruling that a properly completed certificate of medical necessity is proof enough for provider reimbursement.

"The ball's in their court now," said Maximum Comfort President Tom Lambert, who filed a lawsuit against the Department of Health and Human Resources several years ago after a government decision that Medicare overpaid his company because of inadequate documentation for power wheelchair claims from 1998 to 1999.

In March of this year, Lambert received a final favorable ruling from Judge Lawrence Karlton of the Eastern District of California, who stated that a DME supplier should not be required to submit additional medical records beyond a CMN for reimbursement.

HHS Attorney Ana Maria Martel filed the appeal May 4, and the case will now move to the 9th U.S. Circuit Court of Appeals in San Francisco. According to a court timetable, the case should be argued in January of next year. Martel declined further comment.

"If you read [the judge's] original decision, a lot of his citings were of cases held in the 9th Circuit," Lambert said, "and that's where this thing's going."

The judge's preliminary decision in his favor, which was issued in June 2004--nine months before the final decision was handed down--has been used in claims appeals nationwide, but with limited success, Lambert said. "A lot of dealers are reporting that the [Administrative Law Judges] in their regions are ruling ... based on our federal court decision, but that these decisions ... are being overturned by the [Medicare Appeals Council]."

In a recent case over a power chair claim involving Allstate Medical Equipment of Las Vegas, the Council turned down an appeal that cited the Maximum Comfort decision, stating that it "is not controlling in these cases with respect to the authority of the Medicare program to request additional medical documentation to determine whether claimed items are reasonable and necessary ...."

After the preliminary ruling in Lambert's favor, he was instructed to make a request to get back the money Medicare recouped from his company during the claims appeals process, an amount he determined to be $425,000 in principal and interest. But in his final ruling, Judge Karlton said the court does not have the power to tell the government how much it owes Maximum Comfort and, instead, left it up to HHS to determine the amount.

Ironically, since receiving the ruling, Lambert has downsized his Medicare business and now is sending 60 percent of his business to Medi-Cal, California's Medicaid program.

"You may have to submit different paperwork three, four or five times, but in the end [Medi-Cal] pays you, and they don't take the money back and conduct a post-payment audit two years later," Lambert explained. He added that, unlike Medicare, the state Medicaid program requires prior authorizations for most equipment, not just power chairs.

"When the state of California can do a prior authorization for claims over $100 in the Medicaid program, why can't the federal government do it?" he asked.

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