The U.S. Department of Justice (DOJ), which represents the federal government, filed a motion on July 19 to dismiss the lawsuit that the American Orthotic & Prosthetic Association (AOPA) filed against the Centers for Medicare & Medicaid Services (CMS). According to AOPA, the suit it filed challenges the absence of appropriate due process around Medicare’s August 2011 decision to change the standard for demonstrating medical necessity in violation of the federal Administrative Procedure Act and the Medicare statute, as evidenced in the new physician documentation requirements and related audits of claims for services both before and after August 2011. Medicare cannot rely on changed standards for claims processing and audits unless and until Medicare goes through the appropriate process, including a public, Federal Register notice and comment rulemaking to develop any changed standard through the right process.
In its response to the AOPA lawsuit, the DOJ/Medicare maintains that the federal district court does not have the jurisdiction to hear and decide this lawsuit, and also that AOPA has not “exhausted the available administrative remedies, as required by the Medicare statute 42 U.S.C. §§ 405(g), 405(h), 1395ff(b), 1395ii; AOPA has not specifically identified a member who would have standing to sue; and because the “Dear Physician” letter restated existing documentation standards, AOPA “cannot establish that an order striking down the letter will redress the injury allegedly caused by it….”
AOPA said its attorneys studied all of the rules very carefully before filing suit and they think AOPA has a solid basis to bring this matter to trial in the federal courts. Further, AOPA said its attorneys will be filing AOPA’s rationale in its own submission to the Federal District Court within the next two weeks, contesting the DOJ/Medicare Motion to Dismiss.
To review AOPA’s news release regarding the DOJ/Medicare Motion to Dismiss, as well as the motion, visit the AOPA website.
