Medicare DMEPOS: Friend or Foe? Part 2

Current Issue , Legal Ledger

In this edition, I continue our journey into the tangled maze of Medicare. In our last article, Courtney and I looked at the Medicare regulations associated with opting out, in this article we will explore the use of Advance Beneficiary Notices (ABN’s) and Dental Sleep Medicine (DSM) practitioner’s enrollment in Medicare Part B. Again, I want to thank Courtney for her amazing help in writing this series of articles.

Medicare…for some, the word can make you cringe! I get questions about it all the time, and I cringe. It’s not that I mind the questions, the problem is that I don’t have solid answers to many of them. This is made more frustrating by government Medicare bureaucracy. When you ask Medicare questions directly, you can receive a multitude of different answers…..or no answer at all!  For the readers who are relatively new to the practice of DSM, let me take a minute to explain why we are in such a difficult position when providing Oral Appliance Therapy (OAT) for Obstructive Sleep Apnea (OSA) to a Medicare patient.

The first issue is that when we provide OAT to a Medicare patient, we are classified as a Durable Medical Equipment (DME) supplier. We are not classified as a physician/dentist. As a DME supplier, we (the dentist) receive a detailed written order (DWO) (a.k.a. prescription) from a physician for a piece of equipment which, in our case, is a custom made oral appliance [a.k.a. mandibular advancement device (MAD)]. Once we receive the DWO, we are then allowed to fabricate the appliance and deliver it to the patient, and Medicare has a set allowed amount which is payable for this piece of equipment (custom made oral appliance).

In my humble opinion, OAT as a whole SHOULD NOT be classified as DME! The custom made oral appliance itself certainly meets the definition of DME, but what about all of the professional services and doctor level decisions that are made in order to fabricate a custom made oral appliance? The procedures and protocols that dentists employ to effectively treat a patient with OSA do not fit within the traditional DME model. Dentists treating OSA should be treated as physicians.

The first problem

The DME model assumes that all intake examinations, radiographs, monitoring, evaluation of effectiveness and “doctor level decisions” will be provided by the prescribing or ordering physician. In Dental Sleep Medicine, this is not the case. Before OAT can be provided, dentists practicing DSM must complete an extensive oral & airway examination to determine whether the referred patient is a proper candidate for OAT. This intake examination generally involves doctor level decisions regarding the oral health of the patient. Before a decision is made to fabricate a custom made oral appliance, the patient must be evaluated for a number of items such as: the status of the patient’s teeth, gums, Temporomandibular Joints (TMJ’s), bruxism/clenching, number of teeth, oral cancer status, crowding/occlusion, amount of available protrusion, deviations and deflections on opening…and the list goes on. Additionally, I personally order current radiographs of the teeth and the TMJ’s before I determine if the patient is a proper candidate for OAT. So the question is: “What do you do if the patient is NOT a candidate for OAT after you spent an hour of time doing the examination & x-rays?” Can you charge Medicare for your time and effort spent to determine that the patient was NOT a candidate for OAT? My answer to come shortly!

The second problem

Medicare assumes that Oral Appliance Therapy will take no longer than 90 days and the patient will never be seen again.  In DSM, this is not the case. Medicare regulations state: “Items that require repeated adjustments and modification beyond the initial 90-day fitting and adjustment period in order to maintain fit and/or effectiveness are not eligible for classification as DME. These items are considered as dental therapies, which are not eligible for reimbursement, by Medicare under the DME benefit. They must not be coded using E0486.” In DSM dentists are providing therapy for a disease that in the majority of cases must be monitored and controlled for the rest of the patient’s life. When a dentist fabricates a custom made MAD – HCPCS code E0486 – and submits a claim to Medicare for reimbursement, Medicare’s assumption is that the payment provided will cover the entire cost for the appliance including any adjustments and follow-ups. Medicare DME has no provisions for on-going recall and evaluation of the patient by the DME supplier (which, of course in this case, is the dentist). This statement is easier to understand if you envision that you are providing a wheelchair for the patient instead of a therapy to treat a potentially deadly disease. Items are generally considered DME when they: can withstand repeated use, are used to serve a medical purpose, are generally not useful to an individual in the absence of an illness or injury, and are appropriate for use in the home. In a Medicare article titled “Correct Coding of Oral Appliances”, it is stated:

“An oral device is considered durable medical equipment (DME) which:

Therefore, in the current landscape of OAT, you need to think of yourself as a wheelchair salesman! When a patient is provided a wheelchair under DME, the patient receives a prescription from his or her physician, and that prescription is presented to a DME supplier. The DME supplier determines the size wheelchair that the patient needs and adjusts the wheelchair for the patient’s comfort. The DME provider has the patient complete the appropriate paperwork including the proof of delivery. After delivery the DME supplier can bill Medicare. The DME supplier is obligated under policy to make any necessary adjustments the wheelchair for 90 days. However, after 90 days from delivery, no other payments are available for the wheelchair.

The proceeding wheelchair example is how OAT is set up under Medicare. Medicare has no provisions or payment arrangements for dentists practicing DSM to perform intake examinations, radiographs, or recall of our patients. Those procedures are assumed to be done by the sleep physician who ordered/prescribed the MAD. We are all aware that complications secondary to MAD therapy are possible, therefore, it is impossible to provide OAT with any level of competence without an extensive intake examination and regular recall examinations. So the question becomes – how do we provide the optimum level of care to our Medicare patients without losing money on the therapy? So, we are left holding the short straw. To make matters worse, if the calibration of a MAD takes more than 90 days for any Medicare patient, no Medicare benefits are available.

Yes, I know that some of you are filing these visits under Medicare Part B, however, I have personally had communication with 14 different Medicare Medical Directors and all of these physicians agree that filing these appointments and procedures under Part B is a misuse of those E & M Codes. When questioned as to why some dentists are being reimbursed under Part B, the collective answer was that the payments were not appropriate because Medicare does not have “Dental” benefits.

What does all this mean to us as Medicare DME suppliers? Sadly, I think each practitioner must determine the level of risk that you are comfortable with. Personally, I have struggled with this conundrum. I want to operate within the letter of the law, but I hate placing my practice at a competitive disadvantage. However, I have made the decision to forego enrolling as a Medicare Part B provider.  When I receive a Medicare referral, Patty (Wife/Office Manager/DSM Coordinator/Goddess) calls the patient and asks a series of questions in an attempt to eliminate those referrals who may not be proper candidates for OAT. The questions asked pertain to the typical issues that might disqualify the patient as a candidate for OAT. These questions include: date of last dental visit, date of last dental cleaning, diagnosis of gum disease, any dental work needed, number of teeth on each arch, diagnosis of migraines, ringing in the ears (tinnitus), and current adult orthodontics. Upon completion of this questionnaire, Patty makes a decision whether there is a likelihood that this patient will be a proper candidate for OAT. This screening process has greatly reduced the number of Medicare patients who are appointed that ultimately are disqualified as candidates for OAT. Therefore, I do not worry about filing Medicare Part B for the initial examination and radiographs, and I rarely perform an intake on a Medicare patient that is not a proper candidate for OAT.

Regarding recalls, I use ABN’s and my patients pay for those visits. Once the MAD is delivered and the initial 90 days have expired, my patients are financially responsible for all subsequent appointments. They are informed of this fact prior to beginning therapy in our patient financial contract. When they present for the recall appointment day 91 or after, the patient is presented with an ABN which informs the patient that they will be financially responsible for the amount of the visit and that Medicare is NOT expected to pay. In our office these Medicare patients are only charged a nominal fee, but I do not file these services to Medicare Part B.

Here is the RUB! The American Academy of Sleep Medicine (AASM) and the American Academy of Dental Sleep Medicine (AADSM) protocols indicate regular recall of all our patients after the patient’s MAD has been calibrated to the appropriate position to reach maximum medical improvement. Medicare has not created provisions for DME suppliers (dentists in this case) to be reimbursed for these appointments. However, there are lecturers and billing companies galore who are encouraging the use of Medicare Part B for reimbursement of these services, and some dentists have been successful in receiving payment for recall appointments under Medicare Part B. However, I again want to reiterate, my many sources at Medicare consistently state that this approach is a misuse of Medicare Part B, making the practitioner subject to audit. Medicare regulations require that we maintain all records for a period of 7 years. Therefore, any Medicare audit could easily include inappropriate (Medicare Part B) payments for a period of 7 years, plus penalties and interest.

Now for the GOOD news! The directors at Medicare are well aware that OAT as a whole should not be a part of DME. I have had numerous discussions regarding the inequity of payment provisions. Surprisingly, numerous directors at Medicare are in agreement. They are aware that we provide a therapy/treatment for OSA, not simply dispense a piece of DME like a wheelchair. It is my understanding from the Medical Directors at Medicare that DSM was placed under DME upon request from directors of the AASM/AADSM and therefore, Medicare is unwilling to revisit this issue without the cooperation of the leadership of the AASM/AADSM.  Therefore, the only solution to this dilemma is to have the leadership of the AASM/AADSM approach Medicare and request that OAT be removed from DME.

In Conclusion

I call on the leadership of the AASM/AADSM to launch a committee to approach Medicare and petition that OAT be removed from DME or as an alternative, petition that Medicare Part B reimbursement be allowed for intake examinations, radiographs and recall examinations. These actions would resolve much of the confusion that exists pertaining to Medicare, but for now, Be Careful!