The repeal of Transfer of Ownership of Oxygen Equipment was thought to be the most important aspect of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) for all providers. Most oxygen providers assumed it meant a continuation of the oxygen rental payment which is scheduled to stop for many patients, 5 months from today on January 1, 2009.
It was mentioned by many healthcare organizations as a benefit to providers, including the American College of Chest Physicians (ACCP) but what does it really mean. The exact wording in Section 144 of the law entitled PAYMENT AND COVERAGE IMPROVEMENTS FOR PATIENTS WITH CHRONIC OBSTRUCTIVE PULMONARY DISEASE AND OTHER CONDITIONS, Section (b) states:

1. in the heading, by striking `OWNERSHIP OF EQUIPMENT' and inserting `RENTAL CAP'; and
2. by striking clause (ii) and inserting the following:
   1. PAYMENTS AND RULES AFTER RENTAL CAP- After the 36th continuous month during which payment is made for the equipment under this paragraph
   2. the supplier furnishing such equipment under this subsection shall continue to furnish the equipment during any period of medical need for the remainder of the reasonable useful lifetime of the equipment, as determined by the Secretary;
   3. payments for oxygen shall continue to be made in the amount recognized for oxygen under paragraph(9) for the period of medical need; and `(III)maintenance and servicing payments shall, if the Secretary determines such payments are reasonable and necessary, be made for parts and labor not covered by the supplier's or manufacturer's warranty, as determined by the Secretary to be appropriate for the equipment), and such payments shall be in an amount determined to be appropriate by the Secretary.'

One unmistakable similarity to the Medicare Modernization Act of 2003 (MMA), which enacted the Competitive Bidding Program and the MIPPA has to do with the power of the Secretary of Health and Human Services to create the law as he sees fit. In the MMA the wording most commonly used was "as the Secretary may require" in the MIPPA the term is "as determined by the Secretary"

Two weeks ago, the Center for Medicare Services (CMS) held a teleconference to discuss how the MIPPA would affect the Home Medical Equipment and Service Provider. AMEPA Board Member, Barry Johnson, asked questions about how maintenance and other aspects of oxygen service would be covered in 2009 after the oxygen is capped (paid for 36 continuous months). Lawrence Wilson, CMS Director of the Chronic Care Policy Group, answered that they have not yet created rules in response to the change in oxygen policy.

Here is a partial list of concerns:

1) Will the Non-Participating oxygen provider be required to provide maintenance at the established Medicare allowable?

2) Are providers required to fill Liquid Oxygen and other oxygen systems at a loss if they do not want to, after they own the equipment located at the residence of the beneficiary?

3) Will the Medicare Participating provider be forced to take a Medicare patient and only get paid the 35th & 36th month for oxygen if a beneficiary's current provider closes or refuses to continue providing certain modalities of oxygen after the 34th month?

4) What will the allowable be for oxygen maintenance and at what frequency? Will it be paid as services are needed or as accreditation standards suggest (a typical example is every 3 months)?

5) What happens during a break in service prior to the completion of a 36 month rental period?

6) What happens to the traveling beneficiary who lives 5 months of the year in another region of the country, but has been using oxygen for 36 continuous months? Will they be able to get a second oxygen system at their other residence after their initial oxygen caps?

7) What happens if the beneficiary changes their insurance payer? What if the patient completes 36 continuous months, changes to an HMO payer or Hospice and then goes back to Part B? Will the provider be paid a new 36 months for an oxygen system?

8) What happens if the patient owes deductible or co-pay for all or part of the previous 36 months? Are they required to pay their past due bills before getting maintenance or gaseous fills?

The most likely scenario is that by the end of this month or soon after, CMS will release a proposed rule regarding the capped oxygen policy. There will be a "Comment Period" and a Final Rule will be announced by December 31, 2008. This is the typical realization of changes in DMEPOS policy.

On May 1, 2006, CMS released the proposed rule of the Competitive Bidding Program. CMS had a "comment period" and then the Final Rules were released on April 10, 2007. When the Home Medical Equipment and Service community was outraged by the lack of protection for small suppliers and other inadequacies of the Final Rule, CMS answered that they were following their congressional mandate.

In early May of 2007, when my office questioned Michael Keene, Director of Medicare Demonstration Projects, about problems with the final rule, he answered "How come we did not hear more about this during the comment period?"

When the Subcommittee for Small Business questioned CMS about problems with the Competitive Bidding Program in December of 2007, the only thing they could do was send a request to Secretary Leavitt to delay the program. Senators and Representatives sent separate letters, several times to Secretary Leavitt asking him to delay the flawed program. In the end, it took an act of Congress, despite a Presidential Veto to change the Competitive Bidding program.

The month of August was renamed in honor of Caesar Augustus, who is considered the father of the Roman Republic. During the month of August we encourage the industry to take a proactive approach to the CMS rule making. Accredited Providers who are going to stay in this business must continue to educate their legislators about the potential problems of the Transfer of Ownership of Oxygen Equipment. We must unite providers to work with industry leaders and make sure legislators instruct CMS before the rule is finalized. That is the only way we will be assured a fair rule for both the provider and the patient on home oxygen.