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04/25/2014 Dave Mullens, DPM, Esq.
Paul Kesselman has asked great questions. First,
let me give you the most important piece of
information regarding the express agreement
included below.
I sent CMS a copy of the agreement and asked CMS
to cite any Medicare rules or regulations
preventing use of the agreement. If the folks at
CMS could have cited a rule prohibiting use of the
agreement, CMS would have. That didn’t happen.
Instead, CMS sent me a long list of citations to
the Social Security Act (SSA) and the Code of
Federal Regulations (CFR). I did the attorney
thing and very carefully read every one of the
referenced sections. My legal opinion: There isn’t
a single Medicare rule/regulation preventing use
of this agreement.
Because of the huge amount of money spent on
diabetic infections/amputations, Medicare now
wants you to provide appropriate shoes for
diabetic patients. But Medicare doesn’t want to
pay for the shoes. How can Medicare meet both
objectives? Easy! Make the coverage requirements
to provide the shoes completely reasonable and
make the payment requirements completely
unreasonable. That’s just what Medicare has done.
What other Medicare service requires five separate
sets of documents in order to qualify for payment
on the front end, and what other Medicare service
requires five separate sets of documents in order
to successfully defend against a “demand for
repayment of overpayment” on the back end? None.
Zero. Zip.
Forgive the repetition. Here is another copy of
the express agreement.
1. In the event Medicare denies payment to
Dr. ____ for the diabetic therapeutic shoes
provided for me, I agree to participate in a
videoconference ALJ hearing as part of the appeal
for payment.
2. In the event Medicare denies payment to
Dr. ____ for the diabetic therapeutic shoes
provided for me, and I then refuse to participate
in the videoconference ALJ hearing, I agree to pay
Dr. _____ the Medicare-allowed amount for the
diabetic therapeutic shoe service provided by Dr.
____.
3. In the event Medicare denies payment to
Dr. ____ for the diabetic therapeutic shoes
provided for me, and I participate in the
videoconference ALJ hearing - but the ALJ denies
payment for the diabetic therapeutic shoes - Dr.
_____ will not hold me responsible for payment of
any claim associated with the diabetic therapeutic
shoe service.
4. I READ THIS AGREEMENT BEFORE SIGNING IT.
_______________ ____
Patient’s signature Date
If a patient won’t sign this agreement, why would
you possibly take on the financial burden of
providing therapeutic shoes for the patient? The
only thing you are asking the patient to do is to
show up for a videoconference ALJ hearing and take
off his/her shoes so the ALJ can see the missing
toe(s), the perforating plantar ulcer(s), the
hemorrhagic keratoma(s), etc. If the patient will
not sign the agreement, do not provide the
service.
Significantly, the ALJs are federally appointed,
are not answerable to CMS/Medicare, and want to do
the “right thing.” Therefore, once the ALJ sees
the diabetic foot with the obvious, graphic
problem(s), the ALJ will understand that meeting
the LCD document requirements should not be a
barrier to payment, the ALJ will understand the
patient needed the shoes, and the ALJ will rule in
your favor.
When will CMS/Medicare rewrite the impossible LCD
document requirements for diabetic therapeutic
shoes? Most likely, once the Medicare contractors
lose several thousand videoconference ALJ hearing
decisions, CMS/Medicare will take a look at this
issue.
Am I suggesting you do not need the LCD-required
documents in the patient’s chart? Absolutely not.
In fact, the ALJ will want to see what “good
faith” efforts you have made to comply with the
LCD requirements.
Paul, the issue is not whether Medicare views the
agreement as “binding.” The agreement has nothing
to do with an “ABN” and the issue is not whether
the agreement “stands up in a Medicare court.”
The agreement will result most patients showing up
for the videoconference ALJ hearing where the
doctor can show the Judge the patient’s
deformities, ulcers, etc. - that are the exact LCD
indications for the shoes.
ALJs care about meeting indications far more than
they care about duplicative paper documentation
proving the indications have been met. And as to
the few patients who sign the agreement and then
fail to show for the hearing, in my opinion you
have the option of turning that patient over to a
collection agency, without negative exposure
regarding any known CMS/Medicare rules.
What about the fact that all ALJ hearings have
been suspended for two years because the ALJs are
busy with the RAC cases that are so profitable for
the federal government? I think the ALJ log jam
will burst within the next year. There are too
many people screaming about Medicare appeals being
unreasonably delayed and the delays violating
federal law.
Please read this disclaimer very carefully. This
is an opinion piece. I am not your attorney and I
am not giving you legal advice. You should consult
with your own attorney regarding the use of a
collection agency.
Dave Mullens, DPM, Esq. Palo Alto, CA,
dmullens@mullenslawoffice.com
Other messages in this thread:
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07/24/2024
APMA COMPONENT NEWS
APMWA Announces 39th Annual Student Writing Competition
The American Podiatric Medical Writers Association (APMWA) has announced its 39th Annual Student Writing Competition.
All papers MUST be non-technical in nature and original. (NOT AI generated) Appropriate subjects include practice management, ethics, law, education, healthcare, or any topic that would be suitable for a lay publication.
There is no word limitation. Papers will be graded for content, style, grammar, neatness, and overall impact.
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07/24/2024
PODIATRIC SUPERGROUPS IN THE NEWS
USFAS Expands in MO
US Foot and Ankle Specialists (USFAS) has expanded with its recent acquisition of St. Peters Foot & Ankle in St. Peters, Missouri and North County Foot & Ankle in Florissant, Missouri.
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Dr. Samuel Wood |
Samuel T Wood, DPM graduated from Des Moines University College of Podiatric Medicine and Surgery before completing his residency at Saint Francis Central Hospital.
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