Is CMS Trying to Exclude Currently Covered DME from Medicare?

CMS has proposed a rule concerning a number of Medicare-related issues including the durability of DME.  The proposed rule states that 

Based upon the statute and current regulations, equipment could be eliminated from the DME benefit category if it could not withstand repeated use or be reused by successive patients or the same patient.

 The rule proposes to set a minimum durability requirement for DME.  Specifically, CMS stated  

this proposed rule would revise the definition of durable medical equipment (DME) by adding a 3-year minimum lifetime criterion that must be met by an item or device in order to be considered durable for the purpose of classifying the item under the Medicare benefit category for DME. 

CMS further states that

The RUL [Reasonable Useful Life] is used to determine how often it is reasonable to pay for replacement of DME under the program and is not specifically set forth as a minimum lifetime standard. Therefore, we are using our discretion to propose a rule regarding how long equipment must withstand repeated use to be considered durable medical equipment.

What CMS has not done is explain why the problem is that justifies a new rulemaking. Has there  been a problem with DME being insufficiently durable?  There is no indication of such a problem in the NPRM. 

Could CMS be undertaking the rulemaking to try and exclude certain types of DME from Medicare altogether?  It’s not clear.  Nor is it clear what the implications would be for Medicare beneficiaries if any types of DME were excluded. What is clear is that CMS should better justify their proposal before proceeding.   Right now it looks like the agency is trying to solve a problem that doesn’t exist.

Comments are due to CMS by August 30th.  The Proposed Rule is attached below.

CMS-NPRM