Rules and Responsibilities

A collective industry gasp of disbelief was heard across the country as news spread of the new Medicare payment rules for home oxygen after 36 months of rental.

CMS’ new rules (published in the Nov. 19, 2008, Federal Register) place the financial burden of providing emergency 24/7 service to beneficiaries, equipment maintenance and service and provision of necessary replacement supplies such as cannulas on the provider during months 37 through 60.

On top of that, providers are responsible for continuing to provide oxygen to their clients who move away or are snowbirds in another state. Overlaying the entire rule is CMS’ complete lack of support of any role oxygen providers play in servicing the oxygen beneficiary.

All these problems stem from the imposition of the arbitrary 36-month cap that Congress imposed several years ago as part of the Deficit Reduction Act. Clearly, a long-term legislative remedy that erases an arbitrary cap and that provides a financial foundation for the duration of the beneficiary’s medical need is in order. But that’s long term.

In the short term, i.e., now, we must put our collective energies toward influencing CMS to do the right thing and establish adequate payment levels to support medically necessary services and items post-36 months.

Alert your members of Congress about the problems these rules create for your oxygen consumers. Write letters to explain the serious problems that will result from this rule. Ask your lawmakers to press CMS to revise its post-36 month payment rules. Use the following as a starting point for your discussion.

Background: On Oct. 30, 2008, CMS posted a final rule establishing Medicare payment policy for the treatment of oxygen therapy services to Medicare beneficiaries after the 36-month rental/service payment cap. Medicare’s oxygen rule states that it will make virtually no payment for maintenance, service or necessary supplies for a period of two years after the 36-month rental/service cap is reached.

• The rules include an unreasonable and completely impractical requirement that oxygen providers must arrange continued care for patients who move out of a provider’s service area. Recommendation: CMS should delete this requirement from Medicare regulations because it is unworkable and it places oxygen patients at risk for interruptions to a life-sustaining therapy. In addition, many states require oxygen providers to be licensed; an out-of-state provider would unlikely have a valid license in a state that is not in the provider’s service area.
• Patient access to care and the quality of that care will suffer if oxygen providers do not receive adequate payment for routine maintenance and service of oxygen systems. Medicare provides for inadequate payment for routine maintenance and service of the oxygen system, which ensures that the system is working at an optimal level. The CMS rule allows for only two 30-minute maintenance checks per year allowing only between $15-$30 per visit. Recommendation: Oxygen providers need an ongoing fee that begins after the payments cap. The fee should be paid every six months and it should equal the fee schedule amount for one month’s rental.
• There is no recognition of any costs associated with visiting patients who require episodes of unscheduled emergency services, such as those caused by loss of power, ice storms or hurricanes or equipment failure. Recommendation: CMS should pay approximately $100 per episode for unscheduled service and pay (consistent with current repair policy) the labor costs associated with the service and replacement parts not covered under a manufacturer’s warranty.

The serious problems with this rule demonstrate the need for real Medicare payment reform for oxygen therapy services. Such a system must ensure that home oxygen providers are compensated for the care they provide throughout the beneficiary’s period of medical need, without an arbitrary cap on rental payments.

A specialist in health care legislation, regulations and government relations, Cara C. Bachenheimer is vice president, government relations, for Invacare Corp., Elyria, Ohio. Bachenheimer previously worked at the law firm of Epstein, Becker & Green in Washington, D.C., and at the American Association for Homecare and the Health Industry Distributors Association. You can reach her at 440/329-6226 or [email protected].