AMEPA Rallies Providers to File O2 Complaints with SBA

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.