Industry Girds for Battle over Oxygen Regs

BALTIMORE — Last week CMS issued a special edition MLN
Matters article explaining changes in Medicare payment for oxygen
that brought a fresh outcry from HME advocates about the new rules
and provider responsibilities.

“Concerns about the alarming rules for oxygen therapy, published
in the 2009
Physician Fee Schedule, should be discussed as soon as possible
with members of Congress,” the American Association for Homecare
alerted its members. “Provisions requiring providers to arrange
continued care for a patient on oxygen therapy who moves out of the
oxygen provider’s service area and inadequate reimbursements for
routine maintenance and service of oxygen systems are just a few of
the problems that are challenging for oxygen patients and
providers.”

According to an urgent message from the National Association of Independent Medical Equipment
Suppliers, “The CMS MedLearn notices put the weight of the
oxygen crisis squarely on the shoulders of suppliers. CMS made it
very clear that if suppliers don’t follow the rules that have yet
to be clearly defined, they risk losing billing privileges. The
policy statements in this notice show clearly that CMS either
doesn’t understand, doesn’t care, or [is] simply out to harm the
industry by harming patients.

“This is a call to arms for all warriors for DME,” the NAIMES
message continued. “It is time to make noise to Congress. It is
time to reach out to the freshmen members of the 111th Congress as
well as the veterans. We simply cannot afford to wait, this is just
too important … Congress must repeal the cap of payments for
home oxygen therapy.”

The new oxygen rules implement changes called for under the
Deficit Reduction Act—which caps rental reimbursements after
36 months—and the Medicare Improvements for Patients and
Providers Act. Among the changes the MLN Matters article (SE0840) highlights
following the 36-month rental period:

• The supplier is required to continue furnishing the equipment,
  supplies and accessories for any period of medical need for the
  remainder of the reasonable useful lifetime of the equipment. This
  requirement includes use of equipment following temporary breaks of
  in-home oxygen services (e.g., due to a hospital or other facility
  stay) of any duration after the 36-month rental cap.
• The supplier who furnished the liquid or gaseous oxygen
  equipment during the 36-month rental period is responsible for
  furnishing the oxygen contents used with the supplier-owned oxygen
  equipment for any period of medical need following the 36-month
  rental cap for the remainder of the reasonable useful lifetime of
  the equipment. Medicare will pay for oxygen contents for any
  gaseous or liquid oxygen equipment. Suppliers should continue to
  use HCPCS codes E0441 through E0444 in order to bill and receive
  payment for furnishing oxygen contents. Medicare can pay for a
  general maintenance-and-servicing visit for concentrators or
  transfilling equipment in 2009, which must take place 6 months
  after the end of the 36-month rental period.
• Other than this general maintenance and servicing payment,
  payment is not allowable for any repair or maintenance and
  servicing of supplier-owned oxygen equipment, including any
  replacement part furnished as part of any repair or maintenance and
  servicing of oxygen equipment.
• The supplier is responsible for furnishing all of the same
  items and services after the 36-month rental period as they
  furnished during the 36-month rental period. With the exception of
  oxygen contents and the general maintenance and servicing visit in
  2009, the supplier must furnish these items and services without
  charging Medicare or the beneficiary.

With regard to beneficiary relocation, the article states:

• If the beneficiary relocates before the end of the 36-month
  rental period, he/she should work with his or her supplier to make
  arrangements to continue receiving oxygen and oxygen equipment from
  a new supplier at his or her new place of residence.
• If the beneficiary relocates after the 36-month rental period,
  the supplier is required to continue furnishing oxygen and oxygen
  equipment, and therefore, must make arrangements for the
  beneficiary to continue receiving oxygen services at his or her new
  place of residence.

In addition, the article points out in a boxed note: “Suppliers
that are found to be out of compliance with existing regulations
and these new requirements are subject to significant
administrative remedies, including removal of billing
privileges.”

CMS has said it will accept comments on the new rules through
Dec. 29; they are set to take effect Jan. 1.

While members of Congress can ask CMS to modify the rules,
AAHomecare said, there may not be a legislative vehicle to do so in
the remaining days of the 110th Congress.

However, the association said, “Next year, using authority
granted in the Congressional Review Act of 1996, Congress could
overturn any regulation that is finalized within the 60 legislative
days of the end of the 110th Congress.

“That means next February, Congress could reverse Bush
administration regulations that were passed as long ago as May of
2008—including the oxygen rules and possibly any competitive
bidding rules related to MIPPA. This action would occur through a
congressional joint resolution that cannot be filibustered in the
Senate. Separately, the president has authority to freeze any rules
that are pending (in the 60-day comment period) when he takes
office on Jan. 20, 2009, that is, any rule issued after Nov. 20.
The president can also overturn rules via the regulatory process,
which is a lengthier proposition.”

AAHomecare, NAIMES and numerous other industry organizations are
calling for all providers to submit comments and to contact their
members of Congress about the rule.

View AAHomecare’s talking points.

To contact federal legislators, call the U.S. Capitol
switchboard at 202-224-3121.

View MLN
Matters Article SE0840 as a PDF.

For instructions on submitting comments to CMS on the oxygen
regulation, see To
Comment on the Oxygen Rule …, HomeCare Monday, Nov.
10.