Page 30 - HME Business, January/February 2022

Observation Deck
Key 2022 Operational Issues for DME Suppliers
Providers must have a gameplan for two key challenges this year: vaccination requirements and managed care. — Jeffrey S. Baird, Esq
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. Bear- ing that in mind, his article addresses two key operational issues facing DME suppliers in 2022
Vaccine Requirements
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 100 employees.
Separate and apart from the OSHA ETS, there is the CMS Interim Fi- nal 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 vaccina- tion, or (iv) the employee received a treatment (such as the monoclonal antibody treatment) entitling him or her to delay receipt of the CO- VID-19 vaccination. Instead of mandating vaccines company-wide, the DME supplier may implement a mask and social distancing policy.
Managed Care
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 (MMCPs).
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 suppli- ers 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 suc- cessful. For example:
1. Closed Panel – If 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 and services.
• 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 admis- sion 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 jurisdic- tion 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.
Jeffrey S. Baird, Esq., is Chairman of the Health Care Group at Brown & Fortunato, a law firm with a national healthcare prac- tice based in Texas. He represents pharmacies, infusion compa- nies, 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 via phone at (806) 345-6320 or via email at jbaird@bf-law.com.
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