Thursday, May 26, 2022

Liabilities issues…. continued

Wil Haines

Hello, again, colleagues and guests.

Several opinions regarding liability issues have been forwarded and they
are varied in opinions. A few believe you can have a patient sign a
release of liability, but I seriously doubt that is the case and they
may want to run this past their favorite litigation attorney. I’m no
expert on the law, but to my knowledge you cannot have a patient sign a
liability release and make it stick in a court of law. What the replies
really indicate though, with a couple of exceptions, is that there is
not a clear understanding of Medicare’s regulations regarding the 5 year
rule. I will admit that the writing of much of the original Medicare
DMEPOS policy was really written with DME, as in wheelchairs, hospital
beds, etc., in mind and O&P services were included as a bastard
by-product. There is no way a reasonable person can read the Medicare
regulations and not come to that conclusion. But, here we are. Following
is the Medicare regulation regarding the 5 year rule. This information
is found in the 2018 DME MAC Jurisdiction B Supplier Manual. I’m sure it
can be found at the CMS website as well, but it would still apply to all
regions. My daughter Chris was kind enough to help me out with this.

/C – Replacement
Replacement refers to the provision of an identical or nearly identical
item. Equipment which the beneficiary owns or is a capped rental item
may be replaced in cases of loss or irreparable damage. /

/Irreparable damage refers to a specific accident or to a natural
disaster (e.g., fire, flood, etc.). Irreparable wear refers to
deterioration sustained from day-to-day usage over time and a specific
event cannot be identified. Replacement of equipment due to irreparable
wear takes into consideration the reasonable, useful lifetime of the
equipment. If the equipment has been in continuous use by the
beneficiary on either a rental or purchase basis for the equipment’s
useful lifetime,then the beneficiary may elect to obtain a new piece of
equipment. The reasonable,useful lifetime of durable medical equipment
is determined through program instructions. In the absence of program
instructions, DME MACs determine the reasonable, useful lifetime of
equipment, but in no case can it be less than five years.
As I am sometimes and rightfully accused of being the Devil’s advocate
and worse, I’ll paraphrase some of the replies and include some further
thoughts. First, /documentation and medical necessity are the key
words/. If it can be established that a prosthetic or orthotic component
is no longer appropriate, due to a change in mobility level, weight
gain, loss, etc., then new components can be included within the 5 year
rule with appropriate documentation, documentation, documentation.
Otherwise, as in a socket and liner change case, Medicare is expecting
you to reuse the sound components that are still within the 5 year rule
policy. And, this then reopens the liability issue.

One respondent stated that the trial lawyers always go for the deep
pockets and I suspect this is true. It is logical. I have never been
sued for any O&P service in my career, other than the wheelchair
incident, but I have testified in behalf of one or two client’s along
the way. It is amazing what the trial lawyers come up with. But the
wheelchair case that I was involved with exonerated the deep pockets of
that case (wheelchair manufacturer) and that left our company and a
nursing home holding the bag. Even though our liability did not amount
to much in that case, we still lost our liability insurance as a result.
So if you lose your liability insurance, where does that leave you? It
leaves you in a high risk category and that is not a good thing. It also
leaves you out of the loop with Medicare, unless you are able to find
and afford insurance.

Of course I’m making a mountain out of a molehill. Really?

As far as I am concerned, things are as clear as mud at the moment.
Here’s one more muddy example. I was told (by Medicare) that Medicare
requires documentation in the physician’s record and that the O&P record
cannot stand on its own. The physician’s record is still the required
documentation and our records simply support and agree with theirs.
Therefore, what use is the O&P record, other than to make another
loophole for the auditors? Think I’m wrong? Read the policy, including
the fine print. I was told the reason for this is that O&P practitioners
have a financial interest in the claim and that is why the physician’s
record is required. When I asked who the overseer was for physicians,
who also have a financial interest in their claims when they provide O&P
services, I was told that O&P practitioners are considered 3rd party
vendors and that was also part of the reason. But when I stated that
physicians are also 3rd party vendors when they provide O&P services,
another answer was not forthcoming. The net result is that Medicare does
not really have the answers that make complete sense and, I believe,
these issues should be cleared up. Let me rephrase that. These issues
/NEED/ to be cleared up so that the field of O&P can survive and
continue to provide the necessary O&P care that is required. In the
meantime, am I missing something about the new legislation that states
that the O&P record is now a valid part of the patient’s medical record?
Valid part in what sense? Until we, the O&P community conjure up the
you-know-what to get this problem corrected, our field will continue on
its downward spiral. One of the most troubling issues we face today is
trying to get a physician to document the medical necessity for O&P care
and this, in turn, opens the Pandora Box for Medicare auditors.
Functional evaluation documentation that reflects a patient’s ED problem
hardly cuts the mustard for O&P care.

Thanks again for the many replies.

Wil Haines, CPO


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