Key 2022 Operational Issues for DME Suppliers
Providers must have a gameplan for two key challenges this year: vaccination requirements and managed care.
- By Jeffrey S. Baird
- Feb 01, 2022
What has been striking during the pandemic is the
important role that the DME industry has played during the pandemic.
DME suppliers have performed admirably in taking care of patients in
their homes … and keeping them out of hospitals.
And so now, while the country is holding its breath and hoping that
Covid-19 passes from the pandemic to the endemic state, the question
facing DME suppliers is what to expect over the next 12 months. Bearing
that in mind, his article addresses two key operational issues facing
DME suppliers in 2022
On Jan. 25, the U.S. Occupational Safety and Health Administration
(OSHA) formally withdrew its Nov. 5, 2021, emergency temporary
standard (ETS). The OSHA ETS contained the mandatory vaccination
or mandatory testing requirements for all employees with more than
Separate and apart from the OSHA ETS, there is the CMS Interim Final
Rule (IFR). After having gone through litigation and court decisions,
the CMS IFR is now in effect. It mandates vaccinations for certain health
care providers and suppliers that bill federal health care programs
(FHCPs). DME suppliers are not covered by the CMS IFR … except
when the DME supplier delivers equipment to, or furnishes services at,
a facility that bills FHCPs.
If a DME supplier delivers equipment to a facility (e.g., a SNF), it is
likely that the facility will require the delivery person to be vaccinated.
Even if the facility does not issue such a requirement, the CMS IFR will
mandate that the delivery person be vaccinated. Subject to the CMS IFR
and subject to facility requirements, a DME supplier can establish its
own vaccination policy.
If the DME supplier desires to do so, it can mandate vaccinations
unless an employee demonstrates (i) a bona fide religious objection, (ii)
a health condition that may be exacerbated by the vaccine or a medical
condition preventing vaccination, (iii) a disability preventing vaccination,
or (iv) the employee received a treatment (such as the monoclonal
antibody treatment) entitling him or her to delay receipt of the COVID-19 vaccination. Instead of mandating vaccines company-wide, the
DME supplier may implement a mask and social distancing policy.
Currently, almost 40 percent of Medicare beneficiaries are covered
by Medicare Advantage Plans (MAPs) and approximately 70 percent
of Medicaid patients are covered by Medicaid Managed Care Plans
The challenges facing DME suppliers include: (i) some MAP and
MMCP panels may be closed and (ii) the MAP/MMCP may have entered
into a sole source agreement with one DME supplier. Ideally, there
would be clear federal guidance pertaining to the rights of DME suppliers
as they work with MAPs and MMCPs.
Unfortunately, that is not the case. While there are detailed federal
statutes and regulations pertaining to MAPs and MMCPs, they are
geared to the protection of the rights of the patient. And so suppliers
need to take a series of steps that, together or separately, might be successful. For example:
1. Closed Panel
f an MMCP panel is closed, the steps the DME
supplier can take include the following:
- Under the heading of “the squeaky wheel gets the grease,” the
DME supplier can apply multiple times to be included on the
panel. Circumstances can change and the MMCP may finally
agree to allow the supplier on the panel.
- If the DME supplier offers niche products and services, it can
ask the MMCP to add the supplier to the panel for the limited
purpose of providing the niche products and services. Once the
supplier is on the panel for a limited purpose, it may be easier for
the MMCP to later admit the supplier to the panel for all products
- If the DME supplier has a good relationship with a hospital or
physician group that is on the panel, the supplier can ask the
hospital or physician group to advocate to the MMCP for admission
of the supplier on the panel.
- If the above steps prove to be unsuccessful, the DME supplier
can decide to become more aggressive. For example, the supplier
can (i) reach out to the State Insurance Commission; (ii) enlist
the help of state elected Representatives and Senators who have
jurisdiction over the Insurance Commission; and (iii) reach out
directly to the state Medicaid program.
2. Sole Source
If an MMCP signs a sole source contract with one
DME supplier, the DME supplier should enlist the help of its state DME
association. The DME association can approach the State Insurance
Commission, elected state Representatives and Senators with jurisdiction
over the Insurance Commission, and the state Medicaid program
itself. The argument is that the sole source arrangement will not
adequately provide for the health of the Medicaid patients in the state.
3. State Legislative Action
DME suppliers and their state DME
associations, working in conjunction with the American Association for
Homecare’s Payer Relations Council (aahomecare.org), can work with
state legislatures to pass laws that (i) ensure patient choice and (ii) set
reimbursement rate floors.
This article originally appeared in the Jan/Feb 2022 issue of HME Business.
Jeffrey S. Baird, Esq., is Chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers 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 firstname.lastname@example.org.