BALTIMORE — Last week CMS issued a special edition MLN Matters article explaining changes in Medicare payment for oxygen that brought a fresh outcry from HME advocates about the new rules and provider responsibilities.
"Concerns about the alarming rules for oxygen therapy, published in the 2009 Physician Fee Schedule, should be discussed as soon as possible with members of Congress," the American Association for Homecare alerted its members. "Provisions requiring providers to arrange continued care for a patient on oxygen therapy who moves out of the oxygen provider's service area and inadequate reimbursements for routine maintenance and service of oxygen systems are just a few of the problems that are challenging for oxygen patients and providers."
According to an urgent message from the National Association of Independent Medical Equipment Suppliers, "The CMS MedLearn notices put the weight of the oxygen crisis squarely on the shoulders of suppliers. CMS made it very clear that if suppliers don't follow the rules that have yet to be clearly defined, they risk losing billing privileges. The policy statements in this notice show clearly that CMS either doesn't understand, doesn't care, or [is] simply out to harm the industry by harming patients.
"This is a call to arms for all warriors for DME," the NAIMES message continued. "It is time to make noise to Congress. It is time to reach out to the freshmen members of the 111th Congress as well as the veterans. We simply cannot afford to wait, this is just too important … Congress must repeal the cap of payments for home oxygen therapy."
The new oxygen rules implement changes called for under the Deficit Reduction Act—which caps rental reimbursements after 36 months—and the Medicare Improvements for Patients and Providers Act. Among the changes the MLN Matters article (SE0840) highlights following the 36-month rental period:
- The supplier is required to continue furnishing the equipment, supplies and accessories for any period of medical need for the remainder of the reasonable useful lifetime of the equipment. This requirement includes use of equipment following temporary breaks of in-home oxygen services (e.g., due to a hospital or other facility stay) of any duration after the 36-month rental cap.
- The supplier who furnished the liquid or gaseous oxygen equipment during the 36-month rental period is responsible for furnishing the oxygen contents used with the supplier-owned oxygen equipment for any period of medical need following the 36-month rental cap for the remainder of the reasonable useful lifetime of the equipment. Medicare will pay for oxygen contents for any gaseous or liquid oxygen equipment. Suppliers should continue to use HCPCS codes E0441 through E0444 in order to bill and receive payment for furnishing oxygen contents. Medicare can pay for a general maintenance-and-servicing visit for concentrators or transfilling equipment in 2009, which must take place 6 months after the end of the 36-month rental period.
- Other than this general maintenance and servicing payment, payment is not allowable for any repair or maintenance and servicing of supplier-owned oxygen equipment, including any replacement part furnished as part of any repair or maintenance and servicing of oxygen equipment.
- The supplier is responsible for furnishing all of the same items and services after the 36-month rental period as they furnished during the 36-month rental period. With the exception of oxygen contents and the general maintenance and servicing visit in 2009, the supplier must furnish these items and services without charging Medicare or the beneficiary.
With regard to beneficiary relocation, the article states:
- If the beneficiary relocates before the end of the 36-month rental period, he/she should work with his or her supplier to make arrangements to continue receiving oxygen and oxygen equipment from a new supplier at his or her new place of residence.
- If the beneficiary relocates after the 36-month rental period, the supplier is required to continue furnishing oxygen and oxygen equipment, and therefore, must make arrangements for the beneficiary to continue receiving oxygen services at his or her new place of residence.
In addition, the article points out in a boxed note: "Suppliers that are found to be out of compliance with existing regulations and these new requirements are subject to significant administrative remedies, including removal of billing privileges."
CMS has said it will accept comments on the new rules through Dec. 29; they are set to take effect Jan. 1.
While members of Congress can ask CMS to modify the rules, AAHomecare said, there may not be a legislative vehicle to do so in the remaining days of the 110th Congress.
However, the association said, "Next year, using authority granted in the Congressional Review Act of 1996, Congress could overturn any regulation that is finalized within the 60 legislative days of the end of the 110th Congress.
"That means next February, Congress could reverse Bush administration regulations that were passed as long ago as May of 2008—including the oxygen rules and possibly any competitive bidding rules related to MIPPA. This action would occur through a congressional joint resolution that cannot be filibustered in the Senate. Separately, the president has authority to freeze any rules that are pending (in the 60-day comment period) when he takes office on Jan. 20, 2009, that is, any rule issued after Nov. 20. The president can also overturn rules via the regulatory process, which is a lengthier proposition."
AAHomecare, NAIMES and numerous other industry organizations are calling for all providers to submit comments and to contact their members of Congress about the rule.
View AAHomecare's talking points.
To contact federal legislators, call the U.S. Capitol switchboard at 202-224-3121.
View MLN Matters Article SE0840 as a PDF.
For instructions on submitting comments to CMS on the oxygen regulation, see To Comment on the Oxygen Rule ..., HomeCare Monday, Nov. 10.
