'You're leaving the patient in a terrible situation,' attorney says

Tuesday, January 26, 2010

Healthcare attorneys have a word of advice for providers that may be trying to "game the system" by not collecting the 36th month payment for oxygen patients: Just don't do it.

"It's true that the way the statute is worded the supplier that collects the 36th month payment is the one that's on the hook," said Lisa Smith, a healthcare attorney with Brown & Fortunato in Amarillo, Texas. "But I don't see CMS letting providers get away with that."

Why would providers even try such a stunt? Because providers that collect the 36th month payment for an oxygen patient must continue to service that patient for two more years, but they can no longer bill Medicare each month for equipment.

These are the acts of desperate providers, industry sources say.

"They're trying to be sneaky and figure out ways around things, which isn't right, but, at the same time, they're just trying to survive," said Kelly Riley, director of The MED Group's National Respiratory Network.

There's even more at stake for providers when you throw snowbirds into the mix. What happens when a patient hits his 36-month cap when he's in Florida for the winter?

"We used to take over the billing, but we don't do that anymore," said Jim Travis, president of Home Respiratory Care in West Seneca, N.Y., and Naples Oxygen in Naples, Fla. "Because if we get stuck billing the 36th month, technically, we're responsible for the patient for the next two years free of charge."

Not collecting the 36th month payment not only has legal ramifications but also ethical ones, Smith says.

"Basically, you're leaving the patient in a terrible situation because no one else is going to pick them up," she said.