BALTIMORE--For months, providers and other industry advocates have been asking CMS for guidance on numerous issues surrounding the 36-month oxygen rental cap, which becomes effective Jan. 1. On Thursday, they got some answers, but far from those they had been hoping for.

Based on a summary from Waterloo, Iowa-based VGM, the new rules stipulate that HME providers with patients on service in the 36th month are required to:

--Continue to provide the equipment to the patient at no additional charge during any period of medical need for the remainder of the useful life of the equipment, including periods that may occur after a 60-day break in service;

--Continue to provide oxygen contents to the patient for the remainder of useful life of the equipment. (The five-year useful life is determined based on when the equipment is first delivered, not the age of the equipment.) Providers can charge for the contents; and

--Arrange for oxygen equipment and oxygen contents with another supplier if the patient relocates outside the provider’s service area. The new supplier cannot charge for the equipment, but can charge for the contents.

According to the new rules, the provider is responsible for--but will not be paid for--maintenance, servicing and repair of oxygen equipment. For 2009 only, however, Medicare will pay for 30 minutes of labor once every six months (beginning six months after the 36-month cap) for routine maintenance and service actually performed on oxygen concentrators or transfilling equipment in the patient’s home. No payment is available for repair or servicing of gaseous or liquid oxygen equipment.

Regs Are ‘Alarming’
In a statement issued Friday, the American Association for Homecare labeled Medicare’s new regulations “alarming” and “wholly inadequate.”

“Once again, CMS has discounted the important role that home care providers play in provision of care to Medicare patients on home oxygen therapy,” said Tyler J. Wilson, the association’s president and CEO. “The rules released by CMS [Thursday] underscore the fact that the current Medicare oxygen policy is seriously flawed and changes are needed in order to make the oxygen benefit more focused on patients and the services they require.”

AAHomecare said it expects a third of all Medicare home oxygen patients will be affected.

“In many cases the rules will be unworkable,” added AAHomecare’s Walt Gorski, vice president, government relations. “Maintenance and service payments are a key issue, and a second issue is how episodes of unscheduled emergency service will be handled. Another is payment for supplies--i.e., there is not any past 36 months.”

And, Gorski continued, “we’re concerned about patients who move or whose supplier [discontinues servicen after the cap]. They are going to have a terrible time finding an oxygen provider.

“The provisions included in this rule do not reflect the real-life circumstances that beneficiaries will find themselves in.”

Lots of Questions Remain
Mandated by the Medicare Improvements for Patients and Providers Act--the same law that delayed competitive bidding--the oxygen regs were included as part of a 1,459-page final rule for Medicare’s 2009 physician fee schedule, which is set to be published in the Federal Register Nov. 19. The oxygen rules are explained on pages 837-859 of the massive document, and the regulatory language begins on page 1119.

There is a 60-day comment period for the rule, but even that is unrealistic where both patients and providers are concerned, according to Rob Brant, president of the Accredited Medical Equipment Providers of America in Miami.

“How can they have a comment period that ends [at the end of December]? When are those comments going to be addressed and digested, and when are any changes based on those comments going to be implemented when the new rules are going to be effective Jan 1?” Brant wanted to know.

He asked that question and others about the regulations of CMS’ Christopher Molling, who is listed as an agency contact in the rule document.