04/24/2014    Paul Kesselman, DPM

Payment for Diabetic Therapeutic Shoes (Dave Mullens, DPM, Esq)

I too share the frustrations of many other
podiatrists and suppliers, when it comes to
dealing with therapeutic shoes and the nightmare
the Medicare contractors have caused. However, the
reality is, I hear from far many more DPMs (and
others) who are successful when it comes to pre-
payment and post payment audits than I do negative
outcomes..

Having all the paper work in order and taking no
short cuts, does usually vindicate the provider at
the contractor level. The biggest problem most
suppliers have is getting the required paper work
which complies with Medicare's guidelines. Once
obtained that usually is sufficient.

It is rare for a supplier (of any type) to have to
all they way to an ALJ, if all the paper work is
truly in order.

The major issues are for those who think they have
all the paper work, but don't and for those where
the paper work is either absent or questionable
(sloppy signatures, dates in question, no notes
from the MD/DO or wrong MD/DO), that the
contractors often find negatively and the appeals
process kicks in, potentially requiring an ALJ for
a reversal.

The reality for this program is that despite 90%
rejection rates claimed by the DME MACs another
contractor hired by CMS published a Collaborative
Billing Report on therapeutic shoes. It shows only
a 33% error for DPMs. While this still leads the
pack of all other suppliers providing shoes, it is
almost 60% lower than the percentages claimed by
the DME MACs.

So, for those who are scared of supplying due to
90% error rates, I suggest those are far
exaggerated, especially when you start dissecting
the reasons for rejection.

As for the "new paper work" suggested by Dr.
Mullens, I am not a member of the bar association
and never attended law school. Therefore, I won't
debate his suggestion that this "contract" would
be viewed by Medicare as legally binding upon your
patient.

I can only restate the past, the only document
Medicare has previously recognized as proof that
you have properly informed the patient of their
financially responsibility, is an ABN. However,
since ABNs cannot be "doctored" or altered",
perhaps, an ABN in concert with the document Dr.
Mullens is suggesting may be appropriate. That is
Dr. Mulllens' document as a stand alone defense
may likely not stand up in a Medicare court (non
Medicare third party payers may or may not be
consistent with Medicare policy). However, Dr.
Mullens' document in concert with an ABN, may
serve two useful purposes:

1) Fulfill in Medicare lingo that a negative
finding(denial) by Medicare will legally place the
financial burden on the patient;

2) Duly notify the patient that they are also
contractually obligated to appear at a ALJ or
other Medicare hearing if required (I am not sure
I've ever seen Medicare require a patient appear
at an ALJ, I'm assuming this is on behalf of the
supplier);

3) Notifies the patient that should you lose in
court, they are ultimately financially responsible
(irrespective of whether their presence is
required or not).

My question to Dr. Mullens is: "What useful
purpose would the patient's testimony have at an
appeals (e.g. ALJ) hearing, other than to support
the Proof of Delivery (POD) statement, previously
signed by the patient?"

Certainly, not knowing the questions the ALJ
officer will ask in advance nor having knowledge
of the patient's response has the potential to do
more harm than good. Please advise if I am
missing something here.

Paul Kesselman, DPM, Woodside, NY,
drkesselmandpm1@hotmail.com

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