CMS files for motion to dismiss AOPA suit

The US Department of Justice, which is defending the Department of Health and Human Services and the Centers for Medicare and Medicaid Services in the lawsuit filed by the American Orthotic and Prosthetic Association (AOPA), filed a motion to dismiss the lawsuit, according to a statement released by AOPA.

The DOJ maintains that the US District Court does not have the jurisdiction to hear and decide the lawsuit. It also claims that AOPA has not exhausted all of its administrative remedies within the Medicare system and has failed to meet the requirements imposed on anyone who wants to sue Medicare.

AOPA’s attorneys will be filing a rationale to the US District Court in the coming weeks that will contest the DOJ/CMS motion.

“We believe that our position is the right one, and we are very hopeful that the federal District Court will ultimately rule in our favor on the government’s pending motion to dismiss,” AOPA stated in the release. “But all of us know that there is no certainty when one is considering what may happen in a court of law. We must wait for next steps, and we plan to continue to keep our AOPA members informed of any further significant developments.”

AOPA also noted in the release that within recent weeks, several CMS Recovery Audit Contractors have notified AOPA members that audits pertaining to claims made prior to August 2011, when the Dear Physician letter was implemented, have been cancelled. According to AOPA, this could be a significant development for practitioners, because CMS is acknowledging that it cannot retroactively apply its new audit standards to claims made before August 2011.

 “In its motion to dismiss the AOPA litigation, the government says that nothing really changed with its August 2011 Dear Physician letter, just an increase in enforcement, and that the Dear Physician letter couldn’t require any notice and comment because the CMS contractors don’t have the authority to write regulations. They don’t explain why claims denials relating to physician documentation went from almost none to over 90% if nothing really changed,” Tom Fise, JD, executive director of AOPA, told O&P Business News. As AOPA noted in its letter to the CMS administrator, we are very concerned the errors of failing to follow the process and abide by the rules for soliciting input from all stakeholders are being repeated regularly by CMS and its contractors, including possible deficiencies in the process being used to develop a prosthetic template.”



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