AMARILLO, Texas — With all the confusion surrounding CMS' new post-cap oxygen payment rules, it's time for some answers. In a special series for HomeCare Monday, Lisa K. Smith, Esq., an attorney with the Health Care Group at Brown & Fortunato, P.C., a law firm based in Amarillo, Texas, responds to several of home medical equipment providers' most common questions about the new rules. This week, however, following recent additional guidance issued by CMS, Smith asked the agency to answer several questions of her own.
The Devil is in the Details: On Jan. 27, CMS issued additional guidance regarding billing for oxygen contents and replacement of oxygen equipment after the expiration of the five-year useful lifetime. This guidance is titled "Medicare Billing Requirements and Policies for Replacement of Oxygen Equipment and Oxygen Contents." (Click here to read the guidance on the Jurisdiction C Web site.) Since the guidance still left some things unclear, we posed additional questions to CMS, and the following are the responses we received.
Question: CMS states that "a new certificate of medical necessity (CMN) is required in situations where oxygen equipment is replaced because the equipment has been in continuous use by the patient for the equipment's reasonable useful lifetime or is lost, stolen, or irreparably damaged." Is the requirement for a new CMN, a new "initial" CMN or a new "recertification" CMN?
Answer: A new initial CMN is required in situations where oxygen equipment is replaced because the equipment has been in continuous use by the patient for the equipment's reasonable useful lifetime or is lost, stolen, or irreparably damaged. New testing and recertifications based on the initial CMN, however, are not required unless it is necessary in order to meet existing medical review guidelines for oxygen and oxygen equipment. The most recent qualifying value and testing date should be entered on the CMN. (The initial date on the CMN should be the date that the equipment was delivered to the beneficiary.)
Question: CMS states that when providing replacement oxygen equipment, the supplier must also have proof-of-delivery documentation that demonstrates that the oxygen equipment being replaced has been in use for at least five years. While this may not be a problem for a supplier who has had its equipment with the patient for the full five years, it could easily be a problem if the patient has changed suppliers during the five-year period. What happens if a supplier cannot obtain a delivery ticket that is kept by a previous supplier? Can the supplier rely on a copy of the initial CMN on file with the DME MAC?
Answer: Regarding proof of delivery from previous suppliers, if the supplier cannot obtain this documentation, then it cannot prove that the item has been used on a continuous basis for more than five years. The supplier will have to go based on when it first began furnishing the equipment — the supplier should have proof-of-delivery documentation for its equipment.
Question: CMS states "if oxygen equipment is replaced because the equipment has been in continuous use by the patient for the equipment's reasonable useful lifetime or is lost, stolen, or irreparably damaged, the patient may elect to obtain a new piece of equipment" Will breaks in service be considered when calculating the "reasonable useful lifetime" or will it be calculated as a straight five years from the initial delivery date?
Answer: We do not count the days of a break-in-billing without a break-in-need toward the reasonable useful lifetime. For example, if there is a break-in-billing of 50 days, then the reasonable useful lifetime will effectively be five years and 50 days from the date of delivery. As another example, if there is a break-in-billing of 120 days without a break-in-need, the reasonable useful lifetime will effectively be five years and 120 days from the date of delivery. In 42 CFR 414.210(f) the concept of "continuous use" is tied to "reasonable useful lifetime."
The case where the break-in-billing has a break-in-need for over 60 days plus the days remaining in the last paid rental month starts a new reasonable useful lifetime.
Based on CMS' Jan. 27 guidance, the following is Smith's updated answer to a previously published question:
Question: Does a portable unit take on the exact start date of the stationary system or can the two be unique? The situation is the physician may initially order a stationary system and a few months later the portable is added. Does the portable unit have a unique oxygen cap start/end date (36-month period), or do I start billing for portable contents once the stationary system caps?
Updated Answer: The 36-month cap period for the portable unit will be different from the 36-month cap period for the stationary system if the portable equipment is added at a later date. The supplier will continue to bill the portable unit as a rental until it reaches the 36-month cap. However, the supplier can start billing for portable contents after the stationary system caps, and need not wait for the portable unit to cap.
This means that the supplier is able to bill for both the portable rental and portable contents for that period after the stationary system caps and before the portable system caps. Once the portable system caps, the supplier can continue to bill for portable contents.
In other words, stationary and/or portable contents can be billed after the stationary system has reached the 36-month cap. Stationary and/or portable contents cannot be billed during the 36-month rental period for the stationary system. This means that when a supplier replaces the stationary oxygen equipment at the end of the five-year useful life and starts a new 36-month rental, it cannot continue to submit claims for portable contents.
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 lsmith@bf-law.com.
