Medicare regulations must strike right balance between fighting fraud and ensuring access
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More than 1 million Medicare beneficiaries with serous respiratory illnesses are sleeping easier thanks to prescriptions for home oxygen therapy.

Yet for many seniors with chronic pulmonary respiratory disease (COPD) or obstructive sleep apnea (OSA), access to medically-necessary home oxygen supplies and equipment is delayed and even threatened by overly burdensome regulations. Medicare regulations designed to crack down on fraud—a laudable goal—have been unnecessarily strict, inefficient, duplicative, and costly.


In order to ensure patients with a legitimate medical need can continue to receive the care they deserve, it is critical for the Centers for Medicare & Medicaid Services (CMS) to partner with providers to create win-win solutions for all. 

The home respiratory therapy industry strongly agrees fraud in any form is unforgiveable and should be prosecuted to the fullest extent of the law. Fortunately, actual Medicare fraud – meaning a claim is submitted to Medicare for a patient who does not medically need the equipment or does not receive the equipment – is exceedingly rare. Virtually 100 percent of beneficiaries who are prescribed home respiratory therapies by their physicians meet the medical necessity requirements. According to a 2018 CMS report, there was not a single case of oxygen and oxygen equipment suppliers providing supplies and services when the beneficiary did not medically require them.

While CMS is right to make sure public funds are used wisely, the current audit process targets prescribers’ medical records instead of tracking down systemic efforts to defraud the government. Simply put, focusing on magic words does not sufficiently put patients over paperwork. Instead of relying on written prescribers’ orders, Medicare face-to-face examination requirements create expansive documentation demands without demonstrating actual improvements because nearly all of the payments deemed “improper” are due to insufficient signatures or encounter notes, not the actions of suppliers. Meanwhile, data elements are not standardized, introducing subjectivity of reviewers into the audit process. Without a clear, objective standard, third-party contractors have wide power to deny legitimate claims based on missing words from a prescriber’s record.

Further, the audit process creates unreasonable costs and risks that could threaten access to home oxygen supplies and equipment over time. As suppliers, home respiratory therapy providers are akin to pharmacists—they are responsible only for delivering medically-necessary equipment, not for prescribing care. Yet, even when small clerical errors result in audits, suppliers – not the prescribers responsible for writing the documents – are denied payment, in some cases for years at a time, for simply doing their jobs. 


If suppliers fear Medicare is likely to deny reimbursements for medical equipment delivered in good faith, they are unlikely to assume the risk of never being paid. Some suppliers already require beneficiaries to pay out of pocket or have tried to institute other means of guaranteed payment. This risks patient access and places beneficiaries with serious respiratory illnesses at high risk. Additionally, because there has been a 66 percent decline in the number of oxygen providers across the United States – particularly in rural areas – over the last decade, any unfortunate service cuts could have devastating effects on American patients.

Just as a doctor must be careful to make sure the cure is not worse than the disease, so too must federal policymakers create flexible policies that do not harm legitimate patients and providers.

I applaud the CMS administrator’s program to put “patients over paperwork,” but to be effective this effort needs to be more than words. The administrator should use home respiratory therapy as the example of how good government can be conducted without increasing paperwork and costs. Specifically, she should streamline the audit process so providers can focus on delivering home oxygen supplies and equipment to the Medicare beneficiaries who need them to live well. Any comprehensive solution must include policies that 1) standardize data elements so the definitions are clear and objective and 2) remove home respiratory therapy equipment from the face-to-face documentation requirement.

CMS has already created the template for the standardization and needs only to indicate that providing this information is sufficient to support a claim if the information provided establishes medical necessity. In the second instance, 2018 data show medical records – which are meant to be notes for physicians and other health care professionals to accurately treat and care for patients – should not be used as the basis of claim submission. Prescribers should not be forced to guess what “magic words” will clear the contractor’s subjective review when all of the objective data elements to establish medical necessity are present in the standardized data template.

Reducing burden is all the more important given the fact that the total Medicare population grew by one-fifth and the number of Medicare patients diagnosed with chronic obstructive pulmonary disease (COPD)—the third leading cause of death in the U.S.—rose by nearly 60 percent between 2008 and 2014, according to CMS. The best way to control the growing costs of caring for these patients is to cut unnecessarily burdensome costs that do nothing more than feed the audit beast without capturing actual fraudulent behavior. 

Home oxygen providers have been responsible players in the durable medical equipment industry for decades. While fighting fraud, which is exceptionally rare, is important, it is vital that the Medicare auditing process be updated so patients with serious respiratory illness can enjoy access to necessary treatments for many years to come.

Tim Pigg is President & CEO of Rotech Healthcare Inc.