AMARILLO, Texas — With all the confusion surrounding CMS'
new post-cap oxygen payment rules, it's time for some answers.
Beginning a special series today for HomeCare Monday, Lisa
K. Smith, Esq., an attorney with the Health Care Group at Brown & Fortunato,
, a law firm based in Amarillo, Texas, responds to several
of home medical equipment providers' most common questions about
the new rules.

HomeCare: What are the ramifications from CMS,
based on current information, if the current supplier cannot find a
supplier willing to accept patients moving from its service

Lisa K. Smith, Esq.: If it is during the
36-month cap period, the current supplier should do its best to
assist the patient in locating a supplier to service the patient in
the area where the patient is moving, but the current supplier has
no liability if it is unable to find one. If it is after the
36-month cap period, the supplier will have to make arrangements
for servicing the patient by either allowing the patient to take
the supplier's equipment to the new location and contracting with a
local supplier to service the equipment as needed, or paying
whatever it takes to get a supplier to provide equipment and
services to the patient. In the case of oxygen contents, I believe
it should be sufficient to find a supplier willing to provide
contents to the patient, whether on an assigned or unassigned

HomeCare: If a home filling unit is provided,
can the supplier automatically bill monthly charges for oxygen

Smith: If it is a system where the patient
fills portable tanks from an oxygen generating device (i.e.
concentrator), the answer is no. If it is a liquid or gas system
requiring contents delivery that the patient uses to fill its
portable, then the supplier can bill for portable contents. If the
patient uses the stationary unit with its contents as his or her
stationary oxygen supply, then the supplier can also bill for
stationary contents.

HomeCare: Can a supplier limit the number of
portable tanks it provides to the patient to the amount used by the
patient in the home? Can the supplier ask that the patient pick up
the tanks from its facility or does it have to

Smith: CMS has stated that the supplier cannot
limit the portable oxygen contents to only the amount used in the
home, as it is understood that portable contents will be used both
inside and outside the home. The Supplier Standards require the
supplier to deliver equipment and supplies, so the supplier cannot
ask the patient to pick up tanks from its facility.

Lisa K. Smith, who is Board Certified in Health Law by the
Texas Board of Legal Specialization, represents HME companies,
pharmacies, hospitals and other health care providers throughout
the United States. She can be contacted at