Experts explain “same or similar,” E&M service billing, the surety bond requirement, and digital scanning changes.

The year 2018 was a difficult one for dentists participating in Medicare as DMEPOS [Durable Medical Equipment, Prosthetics/Orthotics, and Supplies] suppliers. The Medicare DME landscape changed, making it more difficult and, in some cases, impossible for beneficiaries to qualify for oral appliance therapy coverage if they have obstructive sleep apnea (OSA) and cannot tolerate CPAP therapy.

The Medicare Landscape in 2018

  1. Mandibular advancement devices (MADs) are classified as “same or similar” therapy as CPAP. In the spring of 2018, a Centers for Medicare and Medicaid Services (CMS) contractors system update resulted in the denial of oral appliance therapy as “same and similar” if CPAP had been rented for more than a 90-day period within the past 5 years.
  2. Dentists participating as Medicare DME suppliers are not allowed to bill Medicare Part B for evaluation and management (E & M) services for office visits, recalls, or radiographs as written in local coverage determination (LCD) L33611.
  3. Dentists who provide MAD therapy as Medicare DME suppliers are not exempt from the $50,000 surety bond requirement.
  4. Digital scanning techniques will soon officially be allowed in the fabrication of a PDAC [Pricing, Data Analysis, and Coding]-approved mandibular advancement appliances, versus the current oral appliance definition that only mentions physical impressions.

Let’s look at these common areas of confusion in more detail.

Same or Similar

In March 2018, dentists began receiving denials for Medicare beneficiaries who had failed CPAP due to “same and similar” treatment. Without warning, E0601 (CPAP) and/or E0470 (BiPAP) if utilized over 90 days and certified by a physician and E0486 (MAD) are enforced as same or similar therapies. That means a Medicare patient can have only one of these therapies for any 5-year period.

On its face, the same or similar restriction is logical. The struggling Medicare trust fund should not be paying for multiple similar therapies to treat the same condition. For example, a patient should not be entitled to numerous similar wheelchair styles. But this update is devastating for Medicare patients who fail CPAP after the initial 90-day trial period, after therapy has been certified by a physician. What’s more, we (the authors) do not agree that CPAP and MAD are the same type of therapy. After all, if a MAD was the same as a CPAP, patients would not be interested in oral appliance therapy after failing CPAP. Granted, CPAP and oral appliance therapy both treat sleep-disordered breathing; however, the mechanisms of action are different and compliance rates not comparable. MADs are custom fabricated for each patient, and CPAPs, while titrated individually, are mass produced.

If a patient is going to fail CPAP therapy, the failure typically occurs within the first year of use, but after Medicare has provided benefits for CPAP. In an author’s (Berley’s) experience, DME companies are very good at getting CPAP certified for payment. During the first 90 days, a Medicare patient must utilize the CPAP for 4 hours per day for 21 days out of any 30-day period for the DME to receive payment. So in the first 90 days of CPAP use, patients are closely monitored by the local DME company to maximize usage hours, including being encouraged to use their device while watching TV—which may indeed help the patient become accustomed to the CPAP but also serves to increase recorded hours of use. In this author’s experience, it is rare for a patient who has failed CPAP to present for a MAD before CPAP has been certified. But, under the “same or similar” rules, presenting for a MAD after 90 days of CPAP ownership with certification is too late.

Patients referred for MAD therapy are then surprised to discover they will not have benefits until the completion of a 5-year Reasonable and Useful Lifetime (RUL) of the month CPAP was last rented. Their options are to pay for the MAD out of pocket, to continue to struggle with CPAP, or to go untreated. Unfortunately, there are patients who were referred to my office after failing CPAP who have already had strokes and heart attacks, and we fear their risk of future cardiovascular events. The cost to the Medicare trust fund for untreated OSA needs to be considered.

E&M Services Under Part B

Dentists who provide MAD therapy have filed claims for Medicare beneficiaries under DME and Part B. Before you go nuts thinking that dentists are double-billing, let us explain the dentist’s costs—though let us also say that numerous expert sources say that suppliers are not allowed to bill separately for services related to furnishing DME.

Typically, when a physician writes a prescription for DME (such as a wheelchair), the DME supplier does not need to provide exams or make medical decisions regarding equipment appropriateness. But that is not the case for patients referred for oral appliance therapy. These patients must undergo a complete dental, periodontal, and joint evaluation with radiographs to determine if they are a candidate for a mandibular advancement device. It is not uncommon for patients who are referred for MAD therapy to have poor dental health. Many of these patients have not had regular dental care for many years. So who pays for the exam and radiographs?

This question is particularly important when a referred patient has been evaluated, only to discover his/her oral condition is not healthy enough to undergo MAD therapy. So many dentists submitted a claim to Medicare Part B for the designated E & M and radiographic codes for the evaluation of these patients.

As a matter of routine, Medicare does not cover general dental services or exams under Medicare Part B. The only Part B dental benefits involve surgery, tumors, cysts, etc. When an author (Palmer) asked different Medicare representatives about E & M coverage for oral appliance therapy intake evaluations, she received conflicting responses. DME medical directors said E & M appointments are included in the universal payment for the appliance (not to be billed under Part B). But when she asked a Part B customer service representative, she was advised if a dentist has Part B billing privileges, the services would be covered. What’s more, conflicting information was given by two Part B medical directors confirming the E & M codes should not be covered. We have written numerous letters to the respective medical directors attempting to explain the unfairness of this position to no avail.

In a January 2019 member newsletter (available with login credentials at; see sidebar for full text) the American Academy of Dental Sleep Medicine (AADSM) stated, “Enforcement changes at the Centers for Medicare and Medicaid Services have caused an increase in billing audits related to E/M codes…. OAT is a medical device and reimbursable as DME. However, if adjustments are required after 90 days, the OA is considered a dental therapy. Follow-up care is also considered dental, and dental therapies are not reimbursed by Medicare Part B Services.”

[sidebar] AADSM NewsFlash Information: Published January 2019

(reprinted with permission)

Medicare and E/M Codes

Enforcement changes at the Centers for Medicare and Medicaid Services have caused an increase in billing audits related to E/M codes. Below are answers to commonly asked E/M questions.

Can dentists bill Medicare DME for E/M codes for OAT?

No. Follow-up care required during the first 90 days is included in the payment for the device. OAs that require adjustments beyond the initial 90-day period are considered dental therapies and are not eligible for DME reimbursement.

Can dentists bill Medicare Part B Services for E/M codes for OAT?

No. OSA is a medical condition, and OAT is a medical device and reimbursable as DME. However, if adjustments are required after 90 days, the OA is considered a dental therapy. Follow-up care is also considered dental, and dental therapies are not reimbursed by Medicare Part B Services. For more information see Services Excluded under Part B. Note: Although OSA is a non-dental condition, the exception does not apply to OAT.

Can dentists bill patients for E/M codes for OAT?
Yes. Medicare patients may be billed directly for follow-up visits after 90 days, and ABNs [Advanced Beneficiary Notices] are not required since the patients are being billed for non-covered services. Members may wish to voluntarily provide ABNs, at their discretion, as a courtesy to patients.

Practice Takeaway

Billing Medicare for E/M codes for OAT follow-up visits can result in fines and other penalties. This includes dentists having to repay Medicare for reimbursements that were issued by mistake.

For more information on E/M codes and other tips visit the OAT Reimbursement page [link access requires login credentials]. [/sidebar]

In other words, patients must pay out of pocket for oral appliance management appointments that occur 90 days or more after the device was delivered. Without benefits provided under Part B, many patients forgo these reevaluation appointments. If a patient eliminates reevaluations due to financial pressures, complications secondary to MAD therapy and sleep-disordered breathing are more likely.

$50,000 Surety Bond

Medicare has historically required DME suppliers to post a $50,000 surety bond for the privilege of providing medical equipment to Medicare beneficiaries. Its purpose is to ensure any auditor will be guaranteed a payment of at least $50K if a records audit uncovers error(s) in the documentation.

Of course, practicing by CMS rules is difficult. The qualifications for a mandibular advancement device are significant and often confusing. For example, I (Berley) currently have a sleep study with physician’s interpretation on my desk for a Medicare patient. The patient has no comorbid diseases or excessive daytime sleepiness and has an apnea-hypopnea index (AHI) of 4.7. But the sleep study was done using the American Academy of Sleep Medicine standards of 3% desaturation, not the 4% required by Medicare. What’s more, the physician diagnosed the patient with “moderate” obstructive sleep apnea, but the AHI and symptoms do not fit the criteria of “moderate” by Medicare standards. In my case, my team has a checklist to ensure that all Medicare requirements are met, so we do not bring a referred patient in for an evaluation who will not meet Medicare’s criteria without first informing them this will not be a covered service. But that may not be the case for all dental practitioners.

Dentists new to the practice of dental sleep medicine may assume that our sleep physician colleagues know the Medicare requirements for a mandibular advancement appliance, particularly as it pertains to a Medicare-approved sleep study. If you are in doubt, refer to the LCD and related articles on documentation for specific criteria that must be met for the MAD to be eligible for coverage (for example,; do not count on any other practitioner to do it for you. Be sure to understand the two related articles at the end of the LCD specific to oral appliances and required documentation.

After a recent review of dentists without surety bonds, CMS identified that some dentists are providing items that have been prescribed by other providers, and therefore do not qualify for an exemption. The regulation at 42 CFR § 424.57(d)(15)(i)(C) provides an exemption from the surety bond requirement for physicians and non-physician practitioners who are enrolled in Medicare as DMEPOS suppliers, when items are furnished only to the physician or non-physician practitioner’s own patients as part of his or her physician service. When a dentist furnishes durable medical equipment that does not meet this exception (or another exception in section 424.57(d)(15)(i)), dentists would be required to maintain a $50,000 surety bond. In the case of oral appliances, dentists are providing items prescribed by other providers (that is, physicians), not by the dentists themselves. But this review also suggests something else: Audits may be on the horizon.

The authors are principals in a company that provides education for offices having difficulty implementing policies, procedures, filing medical insurance and Medicare for MAD therapy. In a recent pre-audit evaluation for a dental client, our team found documentation deficiencies or qualification issues in 92% of Medicare records over the last 2 years. We worry that many dentists may be unprepared for the Medicare audits that may be on the horizon.

Digital Scanning

The original definition of a custom-fabricated MAD adopted by Medicare states that approved appliances would be fabricated from physical models made from impressions of the patient’s teeth. When that definition was adopted in 2011, few dentists were using digital scanning techniques to make a digital impression of the teeth. Today digital scans are being increasingly utilized in the fabrication of oral appliances.

Ken Berley, DDS, JD, DABDSM

Ken Berley, DDS, JD, DABDSM

Most dental sleep medicine practitioners were unaware that Medicare had placed a restriction on the use of digital technologies for the fabrication of a PDAC-approved MAD. However, throughout 2018 a dedicated group of dental sleep medicine practitioners sent numerous letters and educational materials to the medical directors at CMS questioning the decision to restrict the use of digital scanning techniques.

The concern was that the use of a digital scanning technique would disqualify the oral appliance from coverage. Fortunately, the efforts of practitioners resulted in a decision by CMS that scanning technology will be included in the definition of an acceptable technique in a future update of the LCD. As of this writing, the effective date of this determination is unknown. Until the LCD is formally updated, the prudent practitioner should continue the use of physical impressions for Medicare beneficiaries.

Take Action

It is vital that Medicare provide accessible benefits for seniors who cannot tolerate CPAP. Personally, the authors are concerned that the trends established in 2018 will continue. However, with the future update of the LCD providing a resolution to the digital scanning scare, the authors are encouraged that change is truly possible. When practitioners band together, they become a force for change. Millions of Medicare beneficiaries are depending on dental sleep medicine practitioners for help with their OSA. We cannot let them down. As a group we are more persuasive.

Jan Palmer, FAADOM

Jan Palmer, FAADOM

Medicare does have an established protocol for policy change. We all should become involved in assisting Medicare in resolving any issue that acts as a barrier to treatment. You can read more about requesting policy changes at

Ken Berley, DDS, JD, DABDSM, is a dentist/attorney and a Diplomate of the American Board of Dental Sleep Medicine. He lectures in the areas of dental sleep medicine and risk management. He has written numerous articles on dental sleep medicine and is the coauthor of The Clinician’s Handbook for Dental Sleep Medicine (Quintessence, 2019). He is the president of Dental Sleep Apnea Team, which provides dental sleep medicine consulting and education as well as legal consulting. He has written several consent forms and other documents available to assist the dental sleep medicine practice.

Jan Palmer, FAADOM, knows that the complexity of medical insurance reimbursement for dental sleep medicine has provided enough frustration that many dental offices abandon the potentially lifesaving and profitable area of practice. Palmer has spent years navigating through the administrative and dental-medical world. As a cofounding member of the Dental Sleep Apnea Team, she has helped develop strategies designed to connect the services patients require to well-deserved insurance reimbursement. Since 2001, Palmer has educated offices on how to establish functional and sustainable dental sleep medicine practice management skills and billing protocols. She educates on proper document and ethical billing strategies for Medicare and private insurance and keeps her skills sharp by putting practice into theory every day. She holds positions with two Medicare DME Provider Education and Outreach Groups and is on faculty of the Mastery Course for the AADSM and other professional organizations.

Daniel Parrilli, MBA, FIADFE, contributed to this article. Most of his career has been in executive management with global dental materials companies. He’s been active as a former board member of the Dental Trade Alliance and chair of the American Dental Assistants Association Foundation. Currently he is general manager of Kettenbach LP, the US business unit of Kettenbach GmbH, makers of impression materials, bite material, and alginate alternative.