Moving the HME Industry Forward


Noncompliant Oxygen Patients

February 2, 2015

AMARILLO, TX – A growing challenge to DME supplierS is what to do with noncompliant oxygen patients. A supplier probably could reasonably conclude that the absence of a fully compliant recertification CMN is a technical fault to be remedied by the pickup of equipment. Likewise, there must be information in the beneficiary’s medical record to support that the item continues to be used by the beneficiary and remains reasonable and necessary. If there is no medical evidence that the item is reasonable and necessary, the supplier is no longer required to provide service to the beneficiary.

That being said, a concern is that the supplier may have exposure if it picks its equipment up against the beneficiary’s wishes and the beneficiary later alleges that he was injured as a result. This risk can be reduced by having the beneficiary return the item voluntarily.

Several FAQs address oxygen patients whose physicians refuse to provide information needed to establish medical necessity. The FAQ responses state that the supplier has a right to refuse to service a patient but also urge suppliers to communicate with both beneficiaries and their physicians to mitigate the noncompliance issue.

The bottom line is that, although the DME supplier has the right to refuse service to noncompliant beneficiaries, there is risk in exercising this right. In order to reduce the number of beneficiaries who do not recertify in the first place, the supplier may wish to take the following steps:

Reminder letters: The supplier can send letters to both the physician and the beneficiary (a) before or contemporaneously with the beneficiary’s receipt of the item; and (b) 120, 90, 60 and 30 days before the date recertification is due. The supplier can also use this opportunity to educate the beneficiary about fire safety to satisfy accreditation requirements.

Lapse notification: If the beneficiary does not recertify, the supplier can send a letter to both the beneficiary and the ordering physician notifying the beneficiary that:
• his certification has ended; and
• 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.

This letter should also list other suppliers from which the beneficiary can obtain a similar item. In most cases, this notification to the physician and the beneficiary should result in recertification.

Gift card incentive: The DME supplier may wish to offer a $25.00 gift card to beneficiaries upon return of the item to the supplier. This is low risk under federal and state anti-kickback laws because the purpose of the card is not to induce referrals nor induce a person to become a patient of the supplier, but rather to give the patient an incentive to return the item.

Despite best efforts, some beneficiaries will refuse to either recertify or return the item to the supplier. In this case, the risks of demanding the item’s return may outweigh the benefits and, therefore, the supplier may decide that these beneficiaries be permitted to keep the item. The supplier can then periodically contact the beneficiary and offer a gift card in exchange for the item’s return.

Here are some of the FAQs I mentioned above…
Ask-the-Contractor Teleconference (ACT) Q&A – March 27, 2012

Q11: What should suppliers do if a physician refuses to provide information needed to establish medical necessity?
A11: One option is to use the “Dear Physician” letters we have on our web site. These are letters written by our medical director, basically, from one doctor to another advising them that it is their obligation to provide this information in order for the patient to be reimbursed for the item they prescribed. Also, you can get the beneficiary involved and have them contact the physician for the information. If they still refuse to provide the documentation, it is your right to refuse to service this patient.

Q23: What can we do if a physician refuses to provide documentation that is needed to establish medical necessity?
A23: “Dear Physician” letters on our web site will help assist in obtaining this information. You can also get the beneficiary involved and have them assist in obtaining the documentation from the physician.

Q37: We have an initial CMN for oxygen that the doctor completed. When the recertification is due, the doctor will not complete the CMN stating he has not seen the patient within the past year. As a provider, do we have any recourse? What do we need to do since the physician will not sign for a recertification?
A37: Suppliers need to educate the beneficiary as well that they need to have a visit with their physician prior to their recertification in order for Medicare to reimburse their oxygen claims. This visit will also help to justify continued need and continued use.

DME MAC A Web Site Article
Ask-the-Contractor Teleconference (ACT) Q&A – June 27, 2012

Q2: Can we refuse to service a beneficiary if the doctor is noncompliant in getting us the required documentation?
A2: Yes, this is your option as a Medicare provider. You can inform the patient that the referring physician does not provide adequate documentation to determine if the item is reasonable and necessary according to Medicare guidelines.

Jeff Baird’s partner, Denise Leard, will be presenting the following webinar on behalf of AAHomecare.
Audits: “Nuts and Bolts” Steps to Successfully Respond
Presented by: Denise M. Leard of Brown & Fortunato, P.C.
Monday, Feb 9, 2015 from 2:30-4:00 p.m. eastern time

In the past, DME suppliers had to respond to occasional post-payment audits. Well…the past is gone and we now have to face a new reality: Medicare is tightening its purse strings; there are 78 million baby boomers, 10,000 of whom are retiring each day; and the boomers will live to a ripe old age. No matter how we look at it, Medicare will strive to pay less up front and will strive to recoup as much money on the back end as possible. The tools for CMS to accomplish this fall into two categories: post-payment audits and prepayment reviews.

Post-payment audits are unpleasant but not life-threatening; at least the supplier has been paid its money. Prepayment reviews, however, can be life-threatening; the supplier will not get paid unless the contractor determines (usually in an arbitrary fashion) that the supplier’s documentation is in order. This program will discuss practical, “nuts and bolts” steps that the supplier must take in order to (1) reduce the chances of being hit with a post-payment audit and prepayment review and (2) successfully respond to an audit/review. This program will further discuss the key documents that the supplier must have in order to get paid by Medicare and to keep the money it has received from subsequently being recouped by Medicare.

Sign up now for Audits: “Nuts and Bolts” Steps to Successfully Respond on Monday, February 9, 2015, 2:30-4:00 pm ET, with attorney Denise Leard, of Brown & Fortunato, PC.

Contact Contact Ika Sukh at if you experience any difficulties registering.
Member: $99.00
; Non-Member: $129.00

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, 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. He can be reached at (806) 345-6320 or