ATLANTA--Ivan Rodriguez, owner of IR Medical Equipment in Miami, is astounded at the hit he thinks the Deficit Reduction Act will have on his oxygen business.

"I think it will affect at least 50 percent of my business," he said, "and maybe more."

Like other oxygen providers across the country, Rodriguez expressed shock and concern over the controversial act, which includes a cap on Medicare rental of oxygen equipment at 36 months, then transfers title to the beneficiary (see HomeCare Monday, Jan. 9). And he has lots of questions.

"What does this mean if, after 36 months, a patient calls and I'm not being paid? What do I do?" he asked. "What happens for patients who have already been on oxygen for that long? And, God forbid, what happens if one of my patients dies [after the equipment title transfers]? How will this affect liability? Will I be responsible?"

Such questions and a myriad of others about how beneficiaries will receive ongoing care and services past the 36-month rental limit have mushroomed from stakeholders since President Bush signed the DRA Feb. 8. The American Association for Homecare pointed out the measure does contain broad language regarding "payments for oxygen" and "maintenance and service" after the title transfer, but said it includes "no specifics."

Compounding the confusion, while government officials say the DRA is a done deal, some on Capitol Hill have differing opinions as to whether the measure is even law. Because the Constitution dictates that each chamber pass bills in identical form, a legal debate emerged when the Senate and House of Representatives approved different versions of the bill due to a clerical typo.

In a press briefing earlier this month, Health and Human Services Secretary Mike Leavitt said he is presuming the DRA is law, "and we're moving forward on that basis." But a federal lawsuit challenging the legality of the act has been filed by an Alabama attorney, and legal experts say others could follow.

On the DRA's Heels
Adding another tangle, a separate proposal in the Bush administration's 2007 budget would shorten the oxygen rental period from 36 months to 13 months. Although Congress would have to approve such a measure, that proposal immediately drew its own fire from an industry already reeling at the DRA's new 36-month limit.

"President Bush's FY '07 budget proposal on oxygen is so over the top that I have had staff on Capitol Hill literally ask if the 13-month cap proposal was a typo," said Cara Bachenheimer, vice president of government relations for Elyria, Ohio-based Invacare.

The company blasted both the president's proposal and the DRA in a formal response Feb. 15 that raised additional questions--such as how beneficiaries would obtain back-up tanks to use in the event of a power outage--and pointed out that giving patients responsibility for their oxygen equipment and the services that go with it could saddle Medicare with additional costs. Without a relationship with a home oxygen provider to maintain equipment or monitor their therapy, the company said, "many beneficiaries will end up in hospital emergency rooms, or being admitted to a hospital where the daily cost exceeds $3,600. In contrast, an entire year of home oxygen therapy can be provided for about $2,784."

"We need to capitalize on the outrageous nature of this proposal and make sure every member of Congress can picture a frail, elderly home oxygen consumer when they address this issue this year," Bachenheimer said. "That must be our mission--to ensure that every member of Congress can visualize the consumer and have an understanding of the real impacts of a 13-month rental cap."

Last week, AAHomecare said it has commissioned a new study from Morrison Informatics to collect the exact costs associated with providing oxygen service.

More Questions than Answers
Meanwhile, Texas provider Dean Cheney, CEO of Dallas Oxygen, wondered if he would have to give new equipment to beneficiaries since they would own it in three years--and if he did, what would he do with the used equipment in cases where a beneficiary died before they assumed ownership?

"I can't plan because, based on the information that has been released, you don't know enough," Cheney said.

For example, 40 percent of Dallas Oxygen's patients use conserving devices, which Medicare doesn't pay providers for, he said. "So when you transfer title to the patient, who keeps the conserving device?" Cheney asked. "If I keep the conserving device, do I now get to charge for it? And who do I charge for it?

"Nobody has answers right now," Cheney said. "It's like I get to play the game but I don't know the rules."

Gary Marnhout, regional vice president of Lexington, Ky.-based Bluegrass Oxygen, said that after the 36-month cap, his company won't be able to provide many of the services it does now.

"When that cap hits and somebody's 40 miles away from you, in a rural area--and we have a lot of people in rural areas here--you can't be expected to drive 40 miles to take four oxygen tanks," he said. "It's not going to work."

The DRA is going to hurt a lot of people, Marnhout continued, as well as confuse referral sources and probably force very small companies out of business.

"It's an irresponsible legislature that does this to the American people," Marnhout said.

For more information about the bill, which would ease some effects of DME competitive bidding, visit the AAHomecare Web site at www.aahomecare.org.

To learn more about Last Chance for Patient's Choice, a 527 non-profit organization that plans to file a federal lawsuit against the competitive bidding provisions in the Medicare Modernization Act, visit www.lastchanceforpatients.org.

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© 2007 Penton Media, Inc.