CMS Tightens Screws on Oxygen Providers

ATLANTA — A listserv message sent last week by the DME
MACs advised that the CERT contractor “has been identifying a
significant number of errors on claims for oxygen equipment,”
mostly due to insufficient documentation to support the medical
necessity for the billed items. But some providers believe that the
auditors are asking for documentation that goes beyond that
specified by the LCD rules.

In an email to a member of the National Association of
Independent Medical Equipment Suppliers, the Jurisdiction B DME MAC
confirmed that audits of oxygen patients by the Comprehensive Error
Rate Testing contractor “require not only visits to the physician
within 90 days of all oxygen recertifications, but actual physician
notes from that visit supporting continued medical monitoring of
oxygen use and needs.”

The email added: “If any documents are not provided, it will
likely result in a request for overpayment of the claim.”

But according to NAIMES, the documentation ask exceeds that
mandated by the local coverage determination. “NAIMES sees this as
an over-zealous attempt of CERT to justify its existence at the
expense of patients,” officials said in a message to members.
“Somehow, patient needs are being overlooked in these attempts to
punish suppliers with unwritten rules.”

“It is my opinion that CERT is going beyond the LCD
requirements,” said Tim Good, CRT, AE-C, RPFT, president of Logan,
Ohio-based Goodcare by CPCI and a member of NAIMES. “They’re taking
that paragraph in the Medicare manual that says there must be
adequate documentation to support medical need and they use that
carte blanche.”

Good pointed out that providers hold no power over physicians to
do anything. The CERT auditor might want physician notes, physician
and therapist assessments “and on and on,” he said, but there is no
guarantee such information will be passed on to the provider.

Additionally, the provider cannot force the patient to see a
physician at any point, let alone within the time limit established
by CMS.

As well, Good, said, “It’s impractical. If you have a
[long-term] emphysema patient, the physician is not going to sit
down every year and talk to that emphysema patient who has been on
oxygen for six years about whether he continues to need
oxygen.”

And then there is the question of what to do about the patient
if the claim is denied.

“So the patient didn’t see a physician,” Good said. “What do I
do with that patient? Do they really expect me to go out and bill
that patient privately? Do they really expect me to pick up the
oxygen? Do they expect me to provide it for free?

“Why don’t they make the physician financially responsible?” he
asked. “I can’t control the physician’s appointment schedule, I
can’t control the patient’s schedule.”

Good said he is frustrated that CMS is seeking to hold providers
to unwritten rules. “We don’t know the rules. The rules have
continued to change,” said Good, adding, “CMS won’t tell you what
kind of documentation they require. They won’t say.”

To help providers guard against claim denials, NAIMES passed on
suggestions from National Government Services:

• Obtain the written physician order signed and dated prior to
  claim submission.

• Obtain a revised oxygen CMN when a new treating physician has
  been noted.

• Consider obtaining copies of the treating physician’s medical
  records that are dated prior to initial dispensing of the item and
  documents that coverage criteria have been met. This is
  particularly helpful for items that are provided on a long-term
  basis; these medical records may be difficult to obtain if
  documentation is requested months or years later.

“NAIMES fears that many suppliers may be vulnerable for request
of overpayments because 1) they have not secured proven
documentation of visits and 2) [they do not] have the documentation
that shows continued medical need for oxygen,” its message said.
“We strongly urge all suppliers to perform internal audits to
insure that such documentation is in the supplier patient records.
We also strongly recommend that all suppliers download and print
Chapter 5 of the Program Integrity Manual and use it to insure
compliance.”

More Rules, More Frustration

The newest frustration comes as oxygen providers are already
fending off threats from every side, including reduction of the
36-month oxygen cap and restrictive new maintenance and servicing
rules.

Under the Affordable Health Care for America Act passed by the
House of Representatives last week, oxygen providers reaching the
27th month of service with a Medicare beneficiary would be required
to continue being responsible for equipment and services during the
“remaining period of medical need for the remainder of the useful
life of the equipment, even if the beneficiary relocates.”

The only exception would be if another provider accepted
responsibility for that patient. If passed by Congress, the rule
would go into effect July 1, 2010.

Also effective July 1, 2010, but under the 2010 Physician Fee
Schedule final rule, providers will receive a payment of $66 to
cover six months of rules maintenance and service of an oxygen
concentrator (stationary or portable) and oxygen transfilling
equipment, if applicable. (See CMS Issues Final
Rule on Oxygen Maintenance for 2010, Nov. 2.)

“But that’s only if you specifically visit on the sixth month
and the 12th month after the 36 months [capped rental period],”
explained Good. “You have to physically visit that patient sometime
in the sixth month follow-up period. If you visit the patient in
the fifth month or the seventh month, you get nothing.”

From Good’s perspective, the confluence of CMS actions is having
a devastating effect on the HME industry. “What I am seeing is a
total industry destroyed,” said Good, a respiratory therapist for
40 years who has spent more than three decades as an HME provider.
“It’s destroyed the value of the independent companies. There is no
value left.”

Good, who lives and works in a rural area of Ohio, is concerned
for the welfare of patients. “Every small town here has a
family-run HME,” he said. If CMS continues its relentless pressure,
“none of us will survive.”

The fact that thousands of providers are already bailing out of
the industry has not gone unnoticed by CMS. The agency has issued
instructions to contractors regarding the processing of claims for
replacement oxygen equipment when equipment is considered lost due
to a provider’s bankruptcy.

“It’s nice that they are acknowledging that this is a problem.
But out of the ones I know that have closed in the Miami area, only
a few have filed for bankruptcy,” said provider Rob Brant of City
Medical Services in North Miami Beach, Fla., and president of the
Accredited Medical Equipment Providers of America. AMEPA recently
reported that, based on information from Medicare, the number of
oxygen providers in Miami-Dade County dropped from 401 in 2008 to
205. (See Half of
Oxygen Providers Gone in L.A., Miami, AMEPA Says, Oct. 26.)

“If an oxygen provider closes and does not file for bankruptcy,
who is going to provide ongoing oxygen services, refill tank and
liquid reservoirs, upgrade equipment when a patient’s condition
worsens and provide equipment and services when patients relocate?”
Brant asked. With the oxygen cap in place, whether it is 36 or 27
months, the beneficiary might find it very difficult to find
service, he said.

“The bottom line is, they are going to be hard-pressed to find a
provider who will jump through all those hoops,” he said. “I’m
certainly not willing to.”

Beneficiaries, he said, could find themselves in the position of
having to pay out-of-pocket in order to get oxygen service and
equipment.

The irony of all this, Brant pointed out, is that CMS is trying
to push HME providers out of business even as Congress is seeking
to design a government health care package that would include more
people in the system.

“What are they going to do when they have 40 million new
patients coming into the government’s new programs?” Brant asked.
“Are they going to have enough home medical equipment
providers?”

Read the Medicare policy regarding replacement of oxygen
equipment lost as a result of supplier bankruptcy on the Jurisdiction B Web site.