The American Orthotic & Prosthetic Association (AOPA) filed a response to the motion to dismiss that was filed by the U.S. Department of Justice (DOJ) on August 7 in response to the AOPA lawsuit. According to AOPA, its suit 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 changed standards.
The basis for AOPA’s reasoning in its response is that the government’s motion to dismiss “is predicated largely on disputing that the August 2011 publication of a ‘Dear Physician’ letter changed the standards for validating Medicare claims for prosthetic devices. As a comparison of the ‘Dear Physician’ letter to CMS manuals and local coverage determinations shows, the letter altered the basis for reimbursement-no longer would prosthetist notes be accepted to determine the medical necessity of the prosthetic device.” AOPA further contends, among other things, that the “Dear Physician” letter was published without offering the affected parties advance notice or the opportunity to comment, neither CMS nor its contractors have observed the requirements of due process, and the “Dear Physician” letter was the first mention that the treating physician’s records, not the prosthetist’s are used to justify payment.
The government has seven days to respond to AOPA’s reply.
To read more about the DOJ/Medicare Motion to Dismiss, visit the AOPA website at www.aopanet.org, access the Legislative & Regulatory pull-down menu, and click on Litigation Updates.
