During an audit appeal, the majority of improperly denied claims are overturned, if at all, at the Administrative Law Judge (ALJ) level. This is because ALJs are able to apply rationality and compassion to the Medicare rules, unlike contractors. Or are they? Recently, ALJs have begun to apply Medicare rules with the same inflexibility as contractors. Even more, in some cases, the ALJs are not even applying the appropriate legal standard.

For example, several weeks ago I read an ALJ opinion that could be the poster child for ALJ abuse of process. The beneficiary was an 81-year old female whose medical history included stroke, osteoarthritis, morbid obesity, dysphasia, and right-sided hemiparesis. In late 2008, the beneficiary fell in her home. After a brief hospital stay, the beneficiary’s physician ordered her to receive in-patient physical therapy. Upon leaving physical therapy in 2009, the beneficiary was prescribed a wheelchair. In the end, the ALJ denied the claim because the medical documentation did not provide the specific mobility-related activities of daily living the beneficiary could not accomplish, or indicate whether a cane or walker could adequately resolve the beneficiary’s limitation problems. Moreover, the ALJ stated that beneficiary did not require a wheelchair because the physical therapy notes indicated the patient could ambulate with a walker, with minimal assistance, for 20 feet.

The court’s analysis in this matter suggests that ALJs are failing to apply common sense and personal experience when rendering decisions. As a result, it is incumbent upon DME suppliers to advocate more persuasively. Below are several suggestions that may help DME suppliers overcome the requisite evidentiary threshold placed on appellants:

Personalize the claim- After adjudicating thousands of claims, ALJs become involuntarily immune to the fact that each claim concerns a person who has real medical needs. During the hearing, remind the ALJ that the claim at issue is not about money, but rather the health and well-being of an elderly person. Even more, invite the beneficiary to the hearing to testify as to why they needed, or continue to need, the specific DME item(s). ALJs give more credence to patient testimony than almost anyone else. Emphasize the point that if the claim is not paid, the patient may be forced to return the equipment.

Expert testimony- The way in which a physician typically treats a patient and records progress notes is called the “standard of care.” Most physicians’ notes do not address each and every element identified in a respective local coverage determination (LCD) (even though they should). For example, a physician who prescribes a manual wheelchair may not state in his or her notes that “the patient’s mobility limitation cannot be adequately resolved through the use of a cane or walker.” Nevertheless, just because the physician does not specifically address this issue in his or her notes, does not necessarily mean it was not considered during the physician’s evaluation of the patient. In these situations, it is useful to retain a physician as an expert who can testify during the hearing as to the “standard of care” for medical notation. The physician may inform the ALJ that, for example, the standard of care when prescribing a wheelchair does not include writing a separate statement as to whether a cane or walker adequately resolves the patient’s mobility limitation. Instead, the standard of care may be that the wheelchair prescription itself, on its face, provides an adequate response that the cane or walker will not resolve the patient’s mobility limitation. This type of testimony may serve as additional credence for why you should receive payment on the item of DME provided to the patient. Moreover, you may be able to use the physician’s testimony to establish the standard of care for all future claims before the same ALJ.

Use DME-specific forms- Since physicians do not typically address every element identified in a respective LCD, you can purchase or create DME-specific progress note forms that the physician can use when evaluating a patient. For example, if the physician evaluates a patient for a manual wheelchair, he or she can quickly obtain and complete the “Manual Wheelchair” progress note form in their office that contains all the elements necessary for the patient to qualify for a manual wheelchair.

Apply the correct legal standard- In the example above, the ALJ denied the claim, at least in part, because the patient could ambulate 20 feet with a rolling walker. Denying a claim for this reason is an abuse of process, because the ALJ is making a medical determination without a medical license. Neither the ALJ nor the DME supplier are licensed clinicians who can refute a physician’s medical determination. The duty of the DME supplier and ALJ is to determine whether there is sufficient documentation in the file to substantiate the medical need for the item of DME prescribed; not to determine if there is other medical criteria in the file which could possibly lead to a different medical determination. It is important to remind the ALJ that they must abide by the correct legal standard, and that denying a claim for medical reasons is a violation of state licensing laws, punishable by civil and/or criminal penalties.

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