Observation Deck

Has HME Reached the Tipping Point?

What the efforts by CMS and Congress to help HME providers respond to the COVID-19 crisis can tell us about their willingness to work with the industry.

The tipping point, per best-selling author and journalist Malcolm Gladwell, is that magic moment when an idea or trend crosses a threshold, tips and spreads like wildfire. This may not be the scenario that Malcolm Gladwell would have predicted, but it strikes me that the home medical equipment (HME) community is at the “tipping point.” And by that, I mean that policymakers across the country are viewing the HME community in a fresh and positive light.

The HME community has stepped up during this public health emergency (PHE) and is providing a range of services to patients across the country: helping patients avoid hospitalizations, and materially contributing to minimizing hospital overflow issues. In response to the PHE, and appreciating the ability of HME providers to ease hospital overflow issues, policymakers are making significant accommodations to ensure that as many patients as possible can be treated and kept at home. Both Congress and the Centers for Medicare and Medicaid Services (CMS) have taken swift and dramatic steps to facilitate the ability of HME providers to care for a large increase in patients with respiratory needs during the PHE.

Congress’ third stimulus package was passed into law on March 27, and is called the CARES Act (Coronavirus Aid, Relief, and Economic Security Act). In this legislative package, Congress included three provisions that are providing direct and significant financial relief for HME providers. First, the CARES Act included an appropriation of $100 billion to the health care community. CMS swiftly distributed $30 billion of those monies to every Medicare provider and supplier across the country that was paid by the Medicare fee for service program in 2019. (The additional monies are being focused on health care providers serving the hardest-hit areas of the country.)

The CARES Act also provided specific payment relief to HME suppliers serving beneficiaries in non-competitive bid areas; extending the 50-50 blended payment rate in rural areas and raising rates in non-rural non-competitive bid areas to a new 75-25 blended payment rate, from March 6 through the end of the PHE. A third provision of the CARES law suspends the two percent annual sequestration payment cut for all Medicare providers and suppliers, from May 1 through Dec. 31,. (And Congress just passed another stimulus bill which includes $75 billion more for health care providers and suppliers.)

The most significant positive Medicare policy accommodation during the PHE is CMS’s suspension of the traditional coverage and documentation requirements for all HME respiratory items and services. Technically, CMS is suspending the application of the clinical conditions for coverage for oxygen, non-invasive ventilators, CPAPs, and other respiratory items. This means that the various testing, documentation and other usual requirements are not required starting March 1 through the end of the PHE.

CMS explained that it is lifting these requirements because, “During the PHE for the COVID-19 pandemic, it is possible that patients receiving services for respiratory-related indications will be required to receive care in unexpected settings, including the home. This may be necessary as COVID-19 and other patients are shifted across healthcare settings to accommodate an increase in patient volume. Therefore … we will not enforce the clinical indications for coverage across respiratory, home anticoagulation management and infusion pump NCDs and LCDs (including articles) allowing for maximum flexibility for practitioners to care for their patients.”

During the PHE, CMS is covering and paying for respiratory-related equipment and supplies with a verbal physician order for patients diagnosed with COVID-19 or COVID-19 symptoms, and all other acute respiratory conditions.

To accommodate social distancing, CMS has suspended most face-to-face encounter requirements. Instead, Medicare will rely on the physician’s judgment that a beneficiary needs oxygen or a respiratory device. (The one exception to the suspended face-to-face requirement is for power mobility devices, since that is set in statute. These visits, however, can be performed via telehealth.)

CMS has made multiple additional changes to ease the ability of patients to receive more care at home and minimize in-person contact. CMS has waived signature requirements on proof of delivery. In CMS’ “DMEPOS: CMS Flexibilities to Fight COVID-19” document (cms.gov/files/document/covid-dme.pdf), CMS states that “CMS is waiving signature and proof of delivery requirements for Part B drugs and Durable Medical Equipment when a signature cannot be obtained because of the inability to collect signatures. Suppliers should document in the medical record the appropriate date of delivery and that a signature was not able to be obtained because of COVID-19.” This statement appears to waive all signature requirements, not just those for proof of delivery. CMS has also acknowledged that health care providers need to focus on taking care of patients, and not spend resources on audits and other medical review activities, and has suspended these activities.

Both Congress and CMS recognized the need to expand to non-physician practitioners the ability to order medical equipment and supplies, under the Medicaid home health benefit. About eleven states previously limited the ordering of these items to physicians; the expansion of ordering authority increases Medicaid recipient access to necessary medical supplies and equipment. CMS made this change in its Interim Final Rule (effective retroactively to March 1). Congress also included in the CARES Act a provision to permanently allow these additional practitioners to order these items and services, giving CMS six months to implement the change.

In a move broadly welcomed by consumer, clinical and provider organizations, CMS is removing non-invasive ventilators (NIVs) from the Medicare competitive bidding program that is scheduled to go into effect in January 2021. With the short supply, supply chain and patient access issues, CMS made the right decision at the right time.

Understanding that we are operating in an unprecedented time, the American Association for Homecare issued a Policy Statement, urging the HME community to exercise sound judgment in applying the new guidance from CMS. This is critically important if our industry is to continue to be viewed in such a positive light over the long term. Let’s collectively make sure we successfully continue to the other side of that “tipping point,” and our industry will flourish for years to come.

This article originally appeared in the May/Jun 2020 issue of HME Business.

About the Author

Cara C. Bachenheimer, Esq., is an attorney with the Health Care Group at Brown & Fortunato, a law firm with a national healthcare practice, where she heads up the firm’s Government Affairs Practice. Her work focuses on lobbying Congress, the Administration, and federal agencies, such as CMS, FDA, IRS, and FAA; as well as regulatory compliance work. She can be reached at (806) 345-6321 or cbachenheimer@bf-law.com.

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