AMARILLO, TX – A challenge for a DME supplier is what to do with noncompliant oxygen patients . . . and with uncooperative physicians.

Noncompliant Patient

A supplier is not obligated to continue serving a Medicare oxygen patient (“beneficiary”) in the absence of (i) a fully compliant recertification CMN, and/or (ii) information in the beneficiary’s medical record that shows continuation of use and the existence of medical necessity. That being said, the supplier opens itself to risk if it picks up its equipment and the beneficiary subsequently has a bad outcome.

Rather than resorting to picking up the equipment, it is preferable for the supplier to attempt to motivate the beneficiary to become compliant or if that fails, then to motivate the beneficiary to voluntarily return the item. For example, the supplier may wish to take the following steps:

• Reminder letters: The supplier can send letters to the physician, the beneficiary, and to the beneficiary’s caregiver (a) before or contemporaneously with the beneficiary’s receipt of the item; and (b) 120, 90, 60 and 30 days before the date that recertification is due. The supplier can also use this opportunity to educate the beneficiary and his caregiver about fire safety to satisfy accreditation requirements.
• Lapse notification: If the beneficiary does not recertify, the supplier can send a letter to the beneficiary, the ordering physician, and the caregiver:
  • notifying them that the certification of medical necessity has ended; and
  • notifying them that the supplier will pick up the item in 30 days unless recertification documentation is received within 15 days (providing a specific date and time the equipment will be picked up); alternatively, the supplier can offer to provide a return shipping package to return the item by mail; and
  • listing other suppliers from which the beneficiary can obtain a similar item (in most cases, this notification to the physician, the beneficiary and the caregiver should result in recertification).

• Gift card incentive: The DME supplier may wish to offer a $25 gift card to beneficiaries upon return of the item to the supplier. This is low risk under federal and state anti-kickback laws, and the federal beneficiary inducement statute, because the purpose of the card is not to induce referrals nor induce a person to become a customer of the supplier, but rather, to give the beneficiary an incentive to return the item.

Despite the supplier’s best efforts, some beneficiaries will refuse to either recertify or return the item to the supplier. In this case, the supplier can ask the beneficiary to sign an ABN, detailing the lack of medical necessity, in order to hold the beneficiary financially responsible. If the supplier is non-participating, then it can notify the beneficiary that the supplier will no longer accept assignment on claims and the beneficiary will be required to pay out-of-pocket.

Additional Patient Non-Compliance Scenarios

A common question that suppliers ask is: “How do we handle beneficiaries who are non-compliant with their oxygen therapy from a safety standpoint?” For example, assume that a beneficiary is found to be smoking while using his oxygen. Assume that after repeated attempts to re-direct the beneficiary’s unsafe behavior, such as contacting the physician and the beneficiary’s caregiver, re-education of the beneficiary, and documentation of these efforts, the beneficiary continues to smoke with oxygen in use.

• The supplier may need to re-evaluate potential fire risks more frequently for the beneficiary and place additional “no smoking” signage and visual reminders; and
• The supplier may use clinical personnel for additional education, such as:
  • findings of a safety risk assessment;
  • causes of a potential fire;
  • fire risk for neighboring residences and buildings;
  • precautions that can prevent fire-related injuries, and,
  • provision of additional written education and resources.

Despite the supplier’s efforts to keep the beneficiary (and his neighbors) safe, if the beneficiary continues to smoke or otherwise use the concentrator in an unsafe manner, then the supplier may consider demanding that the beneficiary return the concentrator. If the beneficiary refuses to do so, then the supplier may need to file a lawsuit and ask the court to sign an order requiring the beneficiary to return the concentrator. Such an order would likely be enforced by a local deputy “knocking on the beneficiary’s door.”

Uncooperative Physician

What should suppliers do if a physician refuses to provide information needed to establish medical necessity? One option is to use the “Dear Physician” letters DME MACS have on their websites. The letters are “from one physician to another” advising the physician that it is his obligation to provide information to the supplier in order for Medicare to pay for the prescribed item. More importantly, the supplier can enlist the help of the beneficiary and have him contact the physician for the information.

What happens if the supplier has an initial CMN for oxygen that the physician completed, but when the recertification is due, the physician will not complete the CMN stating “he has not seen the patient within the past year?” The supplier needs to educate the beneficiary and his caregiver that they need to visit with the physician prior to recertification in order for Medicare to reimburse the oxygen claims. This visit will also help to justify continued need and continued use.

AAHomecare’s Retail Work Group

The Retail Work Group is a vibrant network of DME industry stakeholders (suppliers, manufacturers, consultants) that meets once a month via video conference during which (i) an expert guest will present a topic on an aspect of selling products at retail, and (ii) a question and answer period will follow. The next Retail Work Group video conference is scheduled for November 8, 2018, at 11:00 a.m. Central. Staci Langel, VGM, will present “Motivating Staff Through Incentive Programs.” Participation in the Retail Work Group is free to AAHomecare members. For more information, contact Ashley Plauché Manager of Government Affairs, AAHomecare ([email protected]).

Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, PC, a law firm based in Amarillo, Tex. He represents pharmacies, infusion companies, HME companies and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6320 or [email protected].