The American Academy of Sleep Medicine is gearing up to change the practice of sleep medicine as it has been known for years by actively seeking to establish a safe harbor for the medical specialty. Establishing a safe harbor may be an uphill battle, but if it’s a goal you believe in, the academy is asking you to support its efforts.

The safe harbor would allow sleep physicians to conduct and interpret a sleep test, give a diagnosis, and dispense durable medical equipment (DME) to Medicare patients for use in the treatment of sleep apnea. Currently, the Stark law restricts sleep physicians from dispensing CPAP to sleep apnea Medicare patients after they examine the patient, perform a sleep test, and prescribe therapy.

“To effectively and successfully manage our patients’ care long-term, we believe it is important to move from the current fragmented algorithm for care to a new model that enables physicians like you to manage the continuum of care by providing DME therapy,” AASM President, Sam Fleishman, MD, stated in a letter to the academy’s membership. A safe harbor “will increase access to care; improve adherence to PAP therapy; provide services to medically underserved areas; and realize significant cost savings for our healthcare system.”

Stating those benefits is one thing; convincing CMS that it is enough reason to allow a safe harbor is another.

“The process can be difficult, not only substantively but also procedurally,” says Daniel B. Brown, Esq, managing shareholder of Brown, Dresevic, Gustafson, Iwrey, Kalmowitz and Pendleton, The Health Law Partners, LLC, Atlanta. “First, the persons requesting the change must be able to prove that the change does not pose a risk of program or patient abuse. Rightly or wrongly, CMS already thinks that sleep testing, DME, and PAP services are ripe for overutilization and program abuse.”

However challenging, CMS has adopted new definitions, safe harbors, or tweaks in the Stark regulations in the past.

“The Stark law has long considered referrals of certain physician services to be exempt from the Stark prohibition,” Brown says. “For example, referrals by a radiologist for diagnostic radiology services or by pathologists for certain clinical diagnostic laboratory tests are not prohibited referrals. CMS believes that these referrals are not likely to yield program abuses.”

Such examples are reason for optimism but not the only reason. “CMS has shown some interest regarding integrated care in sleep medicine,” says Brown. “Integrating the physician’s management of the OSA patient’s disease with the patient’s ongoing PAP treatment is consistent with the ‘medical home’ focus of health care reform’s Affordable Care Act. The trick will be to convince CMS that integrated care improves outcomes and will not promote overutilization of sleep testing and PAP services.”

The convincing is not only up to the AASM; it’s also up to you. If you believe establishing a safe harbor is in the best interest of your patients, the AASM is asking you to support its political action committee (PAC).

“Your investment in the PAC is essential for the AASM to support legislators who will champion our proposal,” Fleishman says. “It is crucial that the AASM PAC have sufficient funds to keep our industry’s vital interests well represented in Washington.”

—Franklin A. Holman