Oxygen cap: It's a done deal

Tuesday, February 28, 2006

WASHINGTON - The House of Representatives dealt the industry a disappointing hand Feb. 1 when it approved, by one vote, a deficit reduction bill that included a proposal to cap oxygen at 36 months and transfer title to the beneficiary at that time. President Bush signed the bill into law Feb. 8.
Nevertheless, the industry, rejuvenated by the success of its recent grassroots efforts, is far from admitting defeat.
"If we move into a defensive mode and don't have an offense, 36 will become 24, and 24 will become 18," said Tom Ryan, AAHomecare's chairman. "We can't stand for that. We need to work off our momentum."
Following the vote, industry leaders began talking about initating further grassroots efforts, holding an oxygen summit next summer, working with CMS to ensure appropriate reimbursement for service and maintenance, even crafting legislation to reverse the cap.
"I see this as a groundwork-laying year for us," said Cara Bachenheimer, vice president of government relations for Invacare. "We need to get (the oxygen cap) rescinded."
The industry believes its chances are good. Its grassroots efforts, especially those carried out arm-in-arm with beneficiaries, helped to sway the votes of a handful of representatives. (The House and Senate approved the bill in December, but because the Senate made a few minor changes, the House had to vote on it again.)
Also, the word on the street is that several representatives may even reconsider the oxygen cap, or at least the proposal's language.
Much concern revolves around beneficiaries taking ownership of their equipment following the 36-month cap period. When that happens, who will maintain the equipment? Who will fix the concentrator if something goes wrong? The legislation is vague on those points.
"Many members of Congress had to vote for the bill, because it had so many facets," said Kay Cox, AAHomecare president. "It's not just a healthcare bill. But they have come back to us and promised to be supportive in remedying the harmful effects of the bill."
Another thing working in the industry's favor: The oxygen cap is a budget neutral provision, Bachenheimer said.
"We have to win this one on policy," she said. "This isn't a budget game. From the patient safety issues to the other consumer impacts, it's a policy argument, and we have it."
The industry now awaits CMS's interpretation of the proposal, especially its interpretation of service and maintenance. The proposal states that payments may be made after 36 months if the secretary determines they're "reasonable and necessary."

"The language does contemplate that providers would get paid, but the big question is how would that happen," said industry attorney Asela Cuervo. "Where to do you draw the line between the beneficiary's responsibility and what the supplier is expected to do?"
The deficit reduction bill passed by the House also eliminates the cap rental option for DME. The changes are expected to reduce Medicare expenditures for DME by $750 million over five years.