Medicare DMEPOS: Friend or Foe? Part 1

Best practices with the rulemaker

I have avoided writing on Medicare. It is a bottomless pit of questions. Many of the questions that pertain to Medicare are complicated because we are dentists providing & monitoring a medically necessary treatment for a diagnosed medical condition, but functioning as Durable Medical Equipment (DME) suppliers. However, over the next three editions I am going to attempt to address and clarify some of the issues that frequently arise regarding Medicare. So here we go!

First, I would like to thank Courtney Snow with Nierman Practice Management, who has been invaluable in helping me withthe research necessary to write this series of articles. Thank you Courtney, you’re the best!

As a disclaimer, I do not consider myself to be an expert in Medicare rules and regulations, and I am not providing any legal opinions in this article on how any dentist should practice Dental Sleep Medicine (DSM). For definitive answers to your specific questions, contact a Medicare Law practitioner in your area.

The question for today is: Have you opted-out of Medicare or are you a Medicare DMEPOS supplier? Your answer to this question determines the specific Medicare rules that apply to your practice. Unfortunately, many dentists who have opted-out of Medicare believe that they do not have to follow any Medicare regulations because they have opted-out. This could not be further from
the truth.

However, as many of you are aware, if your practice location is enrolled as a Medicare DME supplier, Medicare offers coverage for dentists who provide custom made Mandibular Advancement Appliances (MAD) to treat Obstructive Sleep Apnea (OSA) that are approved by the Pricing, Data Analysis & Coding (PDAC) contractor as qualifying for code E0486 (of course, other patient coverage criteria must be met as well). To qualify for reimbursement the dental practice location must be properly enrolled as a DMEPOS Medicare supplier, as well as follow Medicare regulations. During a recent “Protect Your DSM Practice” lecture the subject was brought up that many dental practices enroll as a non-participating Medicare DME supplier, and I quickly found out that many of the attendees that were not currently enrolled as participating or non-participating DME suppliers have been providing Oral Appliance Therapy (OAT) to Medicare beneficiaries without informing them that Medicare DME benefits are available for the treatment of OSA. When questioned, these attendees stated that they did not think they were required to inform Medicare beneficiaries of potential coverage because their office had opted-out of Medicare. In my opinion, and per Medicare policy, that is a violation of Medicare rules and regulations.

Subsequently, I have become aware that some dentists are simply informing Medicare beneficiaries that no coverage for OAT is available through Medicare and, therefore, require that all Medicare patients pay cash for their MAD’s. Medicare rules and regulations state that all Medicare beneficiaries must be informed of existence of Medicare benefits whether you participate in Medicare or not. These patients MUST be informed that OAT can be a covered benefit if the patient goes to a dental practice who is an enrolled Medicare DMEPOS supplier, the beneficiary meets coverage criteria (i.e. has received a Medicare covered sleep test, etc.), and a PDAC approved MAD is used.

If an office/provider has officially opted out of Medicare, the dentist must still inform the patient of the existence of Medicare DMEPOS benefits and let the patient know that their practice is not enrolled as a Medicare DME supplier. Frequently I find that practices who have opted out of Medicare simply have the patient sign an Advanced Beneficiary Notice (ABN) of Nonpayment, and then have the patient pay cash for the service/equipment. Per Medicare policy, ABN’s are only to be used if you are an enrolled Medicare provider or supplier and you are not expecting Medicare to pay for the recommended services. If you have opted-out of Medicare, your Medicare patients should be provided a “Medicare Private Contract” to be executed. The Medicare Private Contract must be signed prior to commencing the DMEPOS service. If you enter into a private contract with a Medicare beneficiary neither they nor the provider/supplier can file a claim to Medicare for the services.

If you have been excluded from participating in Medicare or State Health Care programs for legal or fraudulent reasons, you cannot enter into a Medicare Private Contract. This restriction applies to all individuals or corporations who have lost their right to participate in Medicare for any reason.

The following sample contract was modified from a sample Physician Medicare Private Contract provided by Noridian Healthcare Solutions. I have adapted it for use by dentists.

Medicare Private Contract

Section 4507 of the 1997 Balanced Budget Act allows a dentist or other practitioner to enter a private contract with a Medicare Beneficiary for services which will not be covered by Medicare.

I _______________ (provider’s name) have submitted an affidavit to Medicare expressing my decision to opt-out of as a Medicare provider.

I _______________ (provider’s name) have not been excluded from Medicare under sections 1128, 1156 or 1892 of the Social Security Act.  My NPI is __________. (Provider’s NPI)

I  _______________ (Medicare beneficiary) or my legal representative accept full responsibility for payment of charges for all services furnished by Dr. ____________. (Provider’s name)

I _______________ (Medicare beneficiary) or my legal representative understand that Medicare limits do not apply to what Dr. ___________ (provider’s name) may charge for items or services furnished.

I _______________ (Medicare beneficiary) or my legal representative agree not to submit a claim to Medicare or to ask
Dr. ____________ (provider’s name) to submit a claim to Medicare.

I _______________ (Medicare beneficiary) or my legal representative understand that Medicare payment will not be made for any item or services furnished by Dr. ____________ (provider’s name) that would have otherwise been covered by Medicare if there was no private contract and a proper Medicare claim had been submitted.

I _______________ (Medicare Beneficiary) or my legal representative enter into this contract with the knowledge that I have the right to obtain Medicare-covered items and services from a dentist and/or practitioner who has not opted-out of Medicare, and I am not compelled to enter into private contracts that apply to other Medicare-covered services furnished by other dentists or physicians who have not opted-out.

The expected or known effective date and expected or known expiration date of the opt-out period is _____________ (effective date) and _____________ (expiration date).

I _______________ (Medicare beneficiary) or my legal representative understand that Medigap plans do not, and other plans may not, make payments for items and services not paid for by Medicare.

This contract cannot be entered into by me, ____________ (Medicare Beneficiary) or by my legal representative during a time when I (Medicare beneficiary), require emergency care services or urgent care services.  I am aware that a physician or other practitioner may furnish emergency or urgent care services to a Medicare beneficiary in accordance with Section 3044.28 of the Medicare Carriers Manuel.

I _______________ (Medicare beneficiary) or my legal representative will receive a copy of this contract, before services or items are furnished to me under the terms of this contract.

I _______________ (Provider’s Name) will retain the original contract (original signatures of both parties required) for the duration of the opt-out period.

I _______________ (Provider’s Name) will supply CMS with a copy of this contract upon request.

I _______________ (Provider’s Name) understand that the current private contract remains in effect for two years.  If I again opt-out of Medicare, I will expediently complete a new contract for each Medicare beneficiary and will expediently submit the appropriate affidavit(s) to all local Medicare carriers.

Provider’s NPI: _______________________
Provider’s Signature: ______________________________________________________________________  Date:__________________________________________________________________
Patient’s Signature:______________________________________________________________________ Date:__________________________________________________________________
Patient’s Legal Representative Signature:______________________________________________________________________ Date:__________________________________________________________________
Witness:______________________________________________________________________ Date:__________________________________________________________________
Name of Patient Contact:______________________________________________________________________

Phone #:_______________________________________________________________
Patient Contact Email:_________________________________________________

Medicare laws include Refund Requirement which apply to both assigned and nonassigned claims for DMEPOS services….   Refund Requirements state that suppliers must make refunds of any amounts collected if the beneficiary was not properly notified of possible disallowed Medicare claims. The Refund Requirement provisions require that the beneficiary is notified and agrees to be financially liable.

Conclusion


If you do not inform a Medicare beneficiary that Medicare coverage may be available for a MAD you have violated Medicare regulations. Additionally, if you have opted- out of Medicare you must tell the patient that he/she has the right to go to a dentist who is a DMEPOS Medicare supplier for OAT for OSA. If, after full disclosure, the Medicare beneficiary decides to let you treat his/her OSA, a Medicare Patient Private Contract must be signed. It is my personal opinion that dentists who practice DSM should be DMEPOS suppliers. However, if you have opted-out you can enroll two years from the date you opted out, or decide to opt out for another 2 year period. Hopefully this information helps those who have opted-out of Medicare understand your obligations to your Medicare beneficiaries.

Dr. Ken Berley is a practicing general dentist with over 30 years of private practice experience focusing on complex reconstruction and 20 years of experience as an attorney licensed to practice law in Arkansas and Texas. He has extensive experience as a litigator and was a full partner in Travis, Borland and Berley, Attorneys’ at Law before moving to Northwest Arkansas. Dr. Berley is a Diplomate of the American Sleep and Breathing Academy and a Diplomate for the ABDSM. He lectures in the area of sleep medicine risk management. He has provided TMD treatment for many years and has incorporated Sleep Medicine in his office for the last 3 years.

As Director of Training and DentalWriter™ Software Implementation at Nierman Practice Management, Courtney Snow is well known in the Dental Sleep Medicine industry for her work with medical insurance reimbursement for Oral Appliance Therapy for Obstructive Sleep Apnea. She is also an excellent resource for medical billing for Temporomandibular Disorders (TMD), oral surgery services, and other medically necessary services performed in the dental practice setting. Courtney can be reached at 1-800-879-6468 and through Courtney@DentalWriter.com.

Dr. Ken Berley is a practicing general dentist with over 30 years of private practice experience focusing on complex reconstruction and 20 years of experience as an attorney licensed to practice law in Arkansas and Texas. He has extensive experience as a litigator and was a full partner in Travis, Borland and Berley, Attorneys’ at Law before moving to Northwest Arkansas. Dr. Berley is a Diplomate of the American Sleep and Breathing Academy and a Diplomate for the ABDSM. He lectures in the area of sleep medicine risk management. He has provided TMD treatment for many years and has incorporated Sleep Medicine in his office for the last 3 years.

As Director of Training and DentalWriter™ Software Implementation at Nierman Practice Management, Courtney Snow is well known in the Dental Sleep Medicine industry for her work with medical insurance reimbursement for Oral Appliance Therapy for Obstructive Sleep Apnea. She is also an excellent resource for medical billing for Temporomandibular Disorders (TMD), oral surgery services, and other medically necessary services performed in the dental practice setting. Courtney can be reached at 1-800-879-6468 and through Courtney@DentalWriter.com.

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