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David McGill Blogger

A Double Dose

Posted by David McGill | August 07, 2014

First, this post will be longer than most on R&R due to the subject matter's importance. You have been warned. 

AOPA Lawsuit Dismissed

A federal judge dismissed AOPA's lawsuit against HSS yesterday. In the lawsuit, AOPA alleged that the September 2011 "Dear Physician" Letter changed the standards for approving prosthetic claims by no longer permitting the prosthetist's notes to establish medical necessity on their own. The Court rejected this argument, noting:

  • "AOPA argues that 'prior to August 2011 nothing in the [Medicare Program Integrity Manual], LCDs, or Supplier Manuals called for corroboration of the prosthetist's records beyond the physician's signature on prescription and work order for the prosthesis.' ... Not so. The importance of the treating physician's records is clear from the MPIM[.]
  • Even though the patient's medical record is not limited to the physician's office records, this "does not ... diminish the importance of the treating physician's input and certainly does not reduce the physician's role to a mere signatory or rubber stamp."
  • "Even before the Dear Physician Letter - and indeed, even if the letter did not exist - the Secretary reserved the right to demand​ more medical documentation from the physician." 
  • "A decision to increase enforcement of existing standards is entirely within the agency's discretion ... and HHS would be free to exercise this discretion with or without the Dear Physician Letter."

The RACs Are Back

Nearly simultaneously, CMS announced that RAC audits would begin again on a limited basis pending the award of new contracts for the contractors performing that work. The full public announcement stated:

  • Due to the continued delay in awarding new Recovery Auditor contracts, the CMS is initiating contract modifications to the current Recovery Auditor contracts to allow the Recovery Auditors to restart some reviews. Most reviews will be done on an automated basis, but a limited number will be complex reviews of topics selected by CMS. 
  • Work continues on the procurement process for the four Part A/Part B Regions and the national DMEPOS/HH&H Region. The CMS remains hopeful that the new round of Recovery Auditor contracts will be awarded this year.

What does this mean for you?

With the dismissal of AOPA's lawsuit, the District Court sent a clear message that CMS's acted within its authority by requiring detailed corroborating information from physicians as outlined in the Dear Physician Letter. The Judge went so far as to emphasize that even in the absence of the Dear Physician Letter, Medicare had this power. As a result, the physician corroboration requirement will continue to be a key element of valid Medicare claims moving forward.

And the restarting of RAC audits is no surprise. In February when Medicare first announced the auditing suspension, we said in this post:

"[V]iew this break as your final reprieve, your chance to get all your claim processes tightened up and perfected before the next wave begins again later this year."

Armed with a federal judge's opinion validating Medicare's authority to require physician corroboration of prosthetists' records, you can expect the RACs to zero in on this issue in addition to all of the other  requirements set forth in the LCD. 

Ossur does have tools that can help you ensure that you're compliant with all of Medicare's requirements. First, make sure to utilize all of the downloadable resources available on Ossur R&R via the "Reimbursement Resources" link on the top left side of this page. These include numerous Reimbursement Guides for specific products, an Audit & Prepayment Review Reimbursement Guide for Medicare claims, a Lower Limb Prosthesis Documentation Checklist, and a Physician Worksheet for Prosthetic Documentation. 

In addition, you can use Ossur's strategic partner, The Audit Team, which will ensure that your submissions are Medicare compliant for a fixed fee per claim. You can email The Audit Team for more information at

The path forward is clear: physician corroboration is now and will be  a key Medicare requirement going forward; auditing of claims will increase in the coming months on top of the prepayment claim reviews already in progress. Your continued success will depend on your ability to satisfy Medicare's requirements. If you use all the tools available to you, you can succeed in this challenging environment. 

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