Agency examines oxygen cap complaints

Sunday, December 7, 2008

MIAMI - An effort to halt the 36-month oxygen cap gained traction last week when an official from the Small Business Administration asked providers for more information on the impact of the cap.

"He has asked us to make our case," said provider Rob Brant, president of the Accredited Medical Equipment Providers Association (AMEPA).

In November, several AMEPA members filed complaints with the SBA, charging CMS with failing to consider the cap's impact on small businesses, something they must do per the Regulatory Flexibility Act.

The oxygen cap, which begins Jan. 1, squeezes providers, especially smaller providers, because it requires them to continue providing supplies, repairs and emergency services, even though they can't bill Medicare anymore. CMS has stated that because providers retain ownership of equipment, the oxygen cap is "positive rather than negative."

Not so, says Brant. The biggest issue providers have: They must continue services to capped patients who relocate, either temporarily or permanently.

"In the past, I have a paid invoices to out-of-state companies at about $200 each (for oxygen services)," he said. "I am sending copies of these to the SBA to prove that this is a likely cost to me in the future if the patient relocates."

Brant has asked other providers to file complaints with the SBA and include their own copies of checks and invoices.

All efforts to raise awareness of the inadequacies of the oxygen cap are positive, industry stakeholders said.

"The more people that know about these issues, the better," said Walt Gorski, vice president of government relations for AAHomecare.

The SBA official told Brant it would report its findings to CMS in about one week.

Providers can download a complaint form at:

Submit oxygen comments
Oxygen providers have until 5 p.m. EST on Dec. 29 to comment on recently released guidance on the oxygen cap. Industry stakeholders advise providers to highlight one or two key points from their own experience. AAHomecare has talking points posted on its Web site, In their comments, providers should refer to file code CMS-1403-FC. Submit comments in one of the following ways (no duplicates):

1) Electronically. Go to Follow the instructions for "Comment or Submission."

2) By regular mail. Mail written comments to the following address: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1403-FC, P.O. Box 8013, Baltimore, MD 21244-8013.

3) By express or overnight mail. Use the following address: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1403-FC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD21244-1850.