Details of the Medicare Home Oxygen Therapy Act

Introduced Wednesday in the House of Representatives, the

Medicare Home Oxygen Therapy Act of 2009 (H.R. 3220) is a
budget-neutral bill that would reform the way Medicare pays for
home oxygen items and services.

Following is a summary of the bill’s provisions courtesy Cara
Bachenheimer, senior vice president of government relations for
Invacare
Corp., Elyria, Ohio.

1. Elimination of Oxygen Cap – The bill would
eliminate the oxygen cap. Payments would be made throughout the
period the beneficiary’s medical need.

2. Elimination of Competitive Bidding for Oxygen
– The bill would eliminate oxygen from competitive
bidding.

3. Covered Services – The term “home oxygen
therapy services” would be defined to include services and supplies
furnished by a qualified home oxygen therapy provider. The services
and supplies furnished must be linked to specific patient need and
include at a minimum:
a) Conducting an initial evaluation of patients using a uniform
Oxygen Patient Evaluation Form;
b) Providing written and verbal patient and caregiver education
about home oxygen therapy, stationary and portable oxygen therapy
options and oxygen safety (e.g., evaluating the home environment
for safety risks or hazards, including home fire and fall
prevention);
c) Providing appropriate delivery, set-up and coordination of
services (e.g., delivery of oxygen technology to hospital prior to
discharge, delivery and set-up of equipment in the home), as
needed, in a timely manner as agreed upon by the beneficiary,
and/or caregiver, provider, and prescribing physician;
d) Evaluating beneficiaries’ ability to operate the equipment
safely and effectively;
e) Educating and, when necessary, providing assistance with
infection control, focusing on keeping equipment from leading to
infection;
f) Providing equipment-related services consistent with the
manufacturer specifications and in accordance with all federal,
state, and local laws and regulations. These may include but are
not limited to: checking oxygen system purity levels and flow
rates, changing and cleaning filters, and assuring the integrity of
equipment alarms and back-up systems;
g) Monitoring visits by appropriately trained personnel to evaluate
all aspects of the oxygen therapy services being provided to the
patient by the home oxygen provider, including ensuring that
beneficiaries follow their prescribed plan of care;
h) Documenting exception reporting by the home oxygen therapy
provider when changes occur in a patient’s compliance with his/her
plan of care to the prescribing physician;
i) Providing, as needed, continued education regarding appropriate
home oxygen equipment maintenance practices and performance by the
patient and caregivers;
j) Implementing all home oxygen therapy services that are
prescribed by the physician’s plan of care;
k) Providing as needed appropriate home oxygen equipment, supplies
(including but not limited to supplemental supplies and emergency
oxygen back-ups as appropriate);
l) Providing 24-hour on-call coverage to respond to patient needs
with home oxygen therapy; and
m) Assisting the beneficiary with the coordination of oxygen
equipment, services, and providers if the beneficiary travels
outside of the provider’s service area. If the beneficiary
relocates permanently, the new oxygen provider caring for him/her
would assume responsibility for billing the Medicare program
directly.

4. Patient Classification System – The
following system would be used to classify, document, and
reclassify oxygen patients. Prescribing physicians would be
responsible for performing an assessment of each beneficiary
requiring home oxygen therapy and assigning him/her to the
appropriate category. Beneficiaries could move from category to
category over time, as their conditions change.
a) Patients would be classified into one of three patient
categories:
– Category 1 – Patient who lacks mobility or is prescribed oxygen
for nocturnal use only;
– Category 2 – Patient with standard portability needs;
– Category 3 – Patient with high portability needs.
b) “Portability needs” would be defined as:
– Standard – use of portable oxygen estimated at less than or equal
to 40 “liter hours” per week; – High – use of portable oxygen
estimated at more than 40 “liter hours” per week.
– “Liter hours” is defined as prescribed LPM multiplied by
estimated number of hours of use per week.
c) An Expanded CMN would be developed:
– Physician would indicate the “patient category” on the CMN.
– For Category 2, the physician would check off a box indicating
“standard portability needed.”
– For Category 3, the provider would supply the estimated hours of
weekly portable use based on information from the Oxygen Patient
Evaluation Form. The physician would enter the estimated weekly
hours as supplied and the prescribed LPM to arrive at the required
liter hours per week
– The provider would be able to enter testing results on CMN.
– Provider and physician committee to work jointly on proposing CMN
to CMS.
d) Patient classification would be changed upon the physician’s
determination of a change in the patient’s medical condition and/or
need (such change would be documented with updated CMN).

5. Payment, Including Services and Supplies –
Payments for these would be included (bundled) in the monthly
allowable. Payment to the oxygen provider would be based jupon the
provider’s monthly census of patients who are each classified into
one of three patient categories described in section 4. Overall,
the payment per patient would be a single bundled payment
amount.

6. Patient Retesting – The HHS Secretary would
establish a retesting process that allows:
a) Home oxygen providers to facilitate re-testing of patients
between 60 and 120 days when those patients had an acute diagnosis
for whom home oxygen therapy was prescribed for the first
time.
b) The re-testing policy would not apply to patients whose
diagnosis includes chronic respiratory disease, including, but not
limited to, Chronic Obstructive Pulmonary Disease, Emphysema,
Obstructive Chronic Bronchitis, Bronchiectasis, Congestive Heart
Failure, Pulmonary Fibrosis, Obstructive Sleep Apnea and Alpha-1
Antitrypsin Deficiency (A1AD), since these chronic conditions
typically require oxygen therapy for an extended period of
time.
c) Oxygen retesting would be performed in accordance with current
standards of practice and CMS regulations.

7. Establishment of Allowable Charges – The
bill would provide for defined allowable charges for first two
years and related budget neutral assumptions.

8. Updates to Allowable Charges – Annual
updates would be made to the allowable amounts based on the
Consumer Price Index for Urban Consumers (CPI-U).

9. Establishment of Advisory Committee – The
HHS Secretary must establish and convene a meeting of a Home Oxygen
Therapy Advisory Committee (HOTAC) pursuant to section 222 of the
Public Health Service Act (42 U.S.C. 217a) within 6 months of
enactment of this legislation.
a) The Advisory Committee would be comprised of members of the home
oxygen therapy community, including, but not limited to, qualified
home oxygen providers representing urban/rural markets and members
that represent the diverse provider community, patients, nurses,
respiratory therapists, pulmonary and primary care physicians,
providers, public health organizations, patient advocates, and
manufacturers. A public health organization is a private entity and
the term does not include public health agencies.
b) The Committee will provide a forum for expert discussion and
deliberation and the formulation of advice and recommendations to
the Secretary regarding Medicare coverage for beneficiaries in need
of home oxygen therapy, including:
– Designing an Oxygen Patient Evaluation Form to be developed with
consensus from the Advisory Committee;
– Selecting, modifying, and updating quality measures;
– Developing the objective, evidence-based clinical criteria used
to define each of the ambulatory payment categories;
– Refining the patient services provided under this benefit;
– Establishing a quality improvement program;
– Establishing appropriate case mix adjustment factors for home
oxygen therapy services; and
– Evaluating a comparative effectiveness program that also would
also include chronic care management.

10. Cost Reporting – Home oxygen providers
would submit an annual cost report to CMS, no earlier than January
2012. The bill specifies that:
a) CMS could require a maximum of one cost report per year;
b) Cost report elements would be developed by the HOTAC;
c) Small providers (defined as $1 million or less in Medicare
oxygen revenue) would be subject to shorter or streamlined report;
and
d) Cost reporting would be delayed until at least 2 years after the
new oxygen payment system is in place.

11. Anti Fraud and Abuse – The bill includes
recommendations developed by the American Association for Homecare
to improve the process for issuing Medicare supplier numbers and
increased scrutiny of new providers.

12. Beneficiary Protections – The HHS Secretary
would establish via regulations procedures to ensure that
beneficiaries maintain their choice of oxygen provider, receive
clear and understandable communications from their oxygen provider,
are assured of privacy and confidentiality of their treatment and
personal health information consistent with state and federal laws,
are informed and able to participate in decisions about their home
oxygen therapy services, and are informed about their right to
refuse or discontinue treatment. In addition, the bill would
provide the beneficiary the following rights, most of which are
already required under existing law and regulation:

-To be informed by the home oxygen therapy provider of policies
and expectations of the provider regarding patient conduct and
responsibilities.
-To be informed by the home oxygen therapy provider about the
individual’s right to execute advance directives.
-To be informed by the home oxygen therapy provider about treatment
modalities and categories of equipment relating to home oxygen
therapy services for use by the individual and offered by the
provider.
-To be informed of the home oxygen therapy provider’s policies
regarding 24-hour on-call coverage.
-To be informed by the home oxygen therapy provider of the
individual’s financial responsibilities with regard to such
services.
-To be provided with the clinically appropriate oxygen equipment
and services as agreed upon by the individual (or the individual’s
representative), the provider, and the prescribing physician.
-To be informed by the home oxygen therapy provider of any
potential changes to the individual’s equipment or services
regarding home oxygen therapy services and the right to consult
with individual’s physician regarding such changes to ensure they
are appropriate and necessary and the exceptions as specified by
the Secretary when a home oxygen therapy provider may change an
individual’s oxygen equipment.
-To be informed by the home oxygen therapy provider of the
provider’s internal and external grievance processes (as well as
how to contact Medicare through the hotline or Beneficiary
Ombudsman), including the individual’s right to file internal or
external grievances or both without retaliation or denial of
services and the right to file them personally or through a
representative of the individual’s choosing.
-To receive from the home oxygen therapy provider written notice 30
days in advance of an involuntary termination, after the home
oxygen therapy provider follows established involuntary discharge
procedures; however, in the case of immediate threats to the health
and safety of others, the Secretary may permit the home oxygen
therapy provider to use an abbreviated termination procedure.
-To be assisted by the home oxygen therapy provider in obtaining
the equipment and supplies for home oxygen therapy services
prescribed by individual’s treating physician when the individual
is traveling.
-To receive from the home oxygen therapy provider oxygen supplies,
refills, and emergency back-up equipment and refills as
appropriate.

13. Provider Status – The reform proposal would
establish provider status for the home oxygen benefit.

14. No Federal Requirement to Retain Respiratory
Therapists – The bill would not establish a federal
requirement that a qualified home oxygen therapy provider employ or
otherwise retain a licensed respiratory therapist to provide
services for which state law does not require a licensed
respiratory therapist.

15. No Separate NPI, Surety Bond or Mandatory Assignment
– The bill would prohibit CMS from requiring a separate
National Provider Identifier if the oxygen provider also provides
DME, nor would it require a separate surety bond for the oxygen
provider, nor would it allow CMS to require mandatory assignment or
participation status.

16. Effective Date – If passed into law, the
bill would be effective for oxygen services and items provided on
or after Jan. 1, 2010.