Deadline looms in Nichole Medical case

YARMOUTH, Maine - A former HME provider whose civil suit was struck down by the U.S. Court of Appeals for the Third Circuit has until Jan. 19 to file an appeal that he hopes will push his case to the Supreme Court.

“If an appeal is not presented to the Supreme Court by that date, this decision goes into the books as confirmed and uncontested,” said Dominic Rotella, owner of Nichole Medical Equipment.

In 2011, Rotella, who went out of business after he says he was unfairly audited, filed the lawsuit against TriCenturion, the CMS contractor who conducted the audit. Earlier this year, the U.S. Court of Appeals for the Third Circuit upheld a decision by a lower court, which ruled that CMS contractors, as “government agents,” are entitled to “official immunity.”

With the filing deadline closing in, Rotella is trying to corral support from within the industry. He says he can't move the case forward without outside financial help and legal resources.

“We need to have at least a quarter million dollars on hand,” he said, adding that, while his current legal counsel would do “anything and everything,” to help, “they cannot absorb the costs.”

Marcus Suess, president of All-States Medical Supply in Fletcher, N.C., has contributed to Rotella's cause.

“CMS can suspend or revoke a number when they were admittedly in the wrong, and then have no retribution,” he said. “How can providers think this may not happen to them one day?”

Suess would like to see the industry unite behind Rotella.

“This is so huge and people are not aware of it and think it's only affecting one person,” he said. “I can't understand why people don't see how it can affect their business.”

To read previous stories by HME News on Rotella's case, go to Update: Nichole Medical vs. TriCenturion and Update: Dominic Rotella vs. TriCenturion.