MIAMI — In a near-11th hour attempt to derail the 36-month oxygen rental cap that goes into effect Jan. 1, the Accredited Medical Equipment Providers of America is asking providers to file complaints with the Small Business Administration this week.
Rob Brant, president of AMEPA, said the organization believes the oxygen cap violates the Regulatory Flexibility Act of 1980. Among other things, the law is designed to prevent regulations governing health, economics and safety from placing unnecessary burdens on businesses.
CMS, however, maintains that the cap is positive because providers may regain ownership of their equipment when the patient is finished using it, Brant said.
"Most likely, though, it will be returned after Medicare's five-year useful life," he said. "The only time we would be likely to get it back before then would be if the patient expires or moves to another program like hospice, so the equipment would have little, if any, value."
In addition, Brant said, the regulation places costly burdens on small business because, for a bi-annual reimbursement of $15 to $30 for one 30-minute service call, it requires suppliers to provide services for the next 24 months past the cap, such as maintenance and repair, replacement of cannulas, masks, humidifier bottles and, with no additional reimbursement, tubing and oxygen equipment and service to patients who travel or relocate.
The latter "is our strongest argument that the new rule is not a positive for providers," Brant said. "But the SBA has said to us that it's not enough to say that the cost outweighs the advantages. We need to show some proof. We have to give a detailed accounting."
An SBA official has confirmed to AMEPA that it is reviewing the oxygen rule with regard to what is known as the "Reg/Flex Act" and has requested information from the group, Brant said. AMEPA is asking its members and other providers as well to send comments to the SBA that include the following information:
- Cost of providing oxygen service year by year to patients before and after 36 months;
- How much they spend to refurbish concentrators and oxygen equipment for reuse;
- How often concentrators and oxygen equipment require overhauling;
- The cost of overhauling equipment compared to its value; and
- The value of used equipment versus new equipment.
Once the SBA has reviewed the comments, its Office of Advocacy will issue a letter to CMS either supporting or rejecting the regulation. "We want to get the letters in within the next seven days because that is when the Office of Advocacy plans to send a letter to CMS with their opinion," Brant said on Friday.
CMS has allowed until Dec. 29 for comments to the agency on its new oxygen regulations.
While the Office of Advocacy opinion carries some weight, it is not enough by itself to stop the regulation from being implemented.
"To enforce the letter, you would need either an act of Congress or [a court injunction]," Brant said.
He noted that he has spoken with his congressional representatives and so have other AMEPA members, and "everyone is saying the same thing: that nothing is going to happen until the new administration, and even then it could take months."
By then, Brant said, the damage will have been done. Still, he believes there is hope, particularly if enough providers let their voices be heard.
Last year, he pointed out, the Department of Homeland Security attempted to implement a "no-match rule" that would have forced employers to fire employees whose Social Security numbers and names did not match government records. The Office of Advocacy warned that DHS' new rule violated the Reg/Flex Act, and a subsequent lawsuit filed by the AFL-CIO and U.S. Chamber of Commerce resulted in an injunction halting implementation of the rule.
Get a complaint form for the SBA.