SBA Backs Oxygen Providers on Cap Complaints

WASHINGTON — On Wednesday, the Small Business
Administration’s Office of Advocacy filed comments with CMS asking that
the agency do a better job analyzing the economic impacts of the
36-month O2 cap on small oxygen providers.

Complaints filed with the SBA by members of the Accredited Medical Equipment
Providers of America asserted the cap, set to go into effect
Jan. 1, violates the Regulatory Flexibility Act of 1980 — known as
the Reg/Flex Act — which requires a full analysis of the
benefit or harm of government decisions on small business. (See
AMEPA
Rallies Providers to File O2 Complaints with SBA, HomeCare
Monday, Dec. 8.)

According to AMEPA, CMS did not perform such an analysis before
announcing its new oxygen payment rules, and the organization’s
members provided the SBA with 52 pages of text and documents to
support their contention.

The SBA agreed.

In an eight-page letter addressed to CMS Acting
Administrator Kerry Weems, the SBA said:

“Advocacy submits that the analysis provided on the rule’s
likely impacts on oxygen suppliers does not rise to the level
required by the RFA [regulatory flexibility analysis]. CMS’
inability to estimate the impact of this rule on oxygen suppliers
merely highlights the need for a FRFA [final regulatory flexibility
analysis] as required under the RFA. CMS does not adequately
analyze and balance the potential benefit of retaining ownership of
the oxygen equipment with the other provisions of the rule that
serve to reduce payment to the industry for providing oxygen and
oxygen suppliers to Medicare beneficiaries.”

Armed with the SBA findings, AMEPA is looking to file an
injunction to stop implementation of the cap, according to Rob
Brant, general manager of City Medical Services in North Miami Beach,
Fla., and the group’s president.

“Our hope is that a case can be filed in January which will
delay implementation of the cap retroactively, similar to the delay
in competitive bidding. Minimally we should be fairly compensated
for our service visits and supplies,” said Brant. “Additionally,
oxygen providers should not be financially responsible when a
patient relocates out of the area.”

Read the SBA’s comment letter to CMS.