WASHINGTON — A special fraud alert issued last week by the HHS Office of Inspector General leaves "virtually every Medicare-enrolled DME provider open to liability for false claims," according to the American Association for Homecare.
Published in the Jan. 14 Federal Register, the OIG alert said there is evidence that some DMEPOS providers have been using independent marketing firms to contact beneficiaries. Even though the method of contact is indirect, it is still prohibited, the alert said.
The alert also pointed to cases in which providers have contacted beneficiaries based on a physician's written or verbal order recommending DME. According to the OIG, physician orders are not a substitute for a beneficiary's written consent to be contacted.
But calling that notion "impractical and unworkable," AAHomecare officials said they would ask the OIG to rescind that part of the fraud alert.
According to an association update:
Nearly all HME items furnished to beneficiaries in their homes result from a written or verbal order communicated initially by the physician to the HME provider, who then contacts the beneficiary to arrange for delivery of the item … Telephone contact with a beneficiary based on a physician's order is fundamentally different from the telemarketing activities that Congress addressed when it enacted section 1834(a)(17) of the Social Security Act …
Longstanding Medicare policy recognizes and permits providers to dispense HME in response to a physician's verbal order for the item.
Under the Social Security Act, providers are prohibited from making unsolicited calls to beneficiaries for the purpose of furnishing products unless one of three exceptions applies:
- the supplier has written permission from the beneficiary to call;
- the call pertains to an item the supplier has already provided to the beneficiary; or
- the supplier has provided the beneficiary with an item during the past 15 months.
All claims resulting from an illegal phone call are considered false and can result in civil and criminal charges, as well as potential exclusion from federal health care programs.
"It is one thing for the federal government to be vigilant in making sure Medicare claims are properly paid. It is another thing for federal DMEPOS officials to fail to grasp, time after time, how home medical equipment and related services are actually provided to Medicare beneficiaries," said AAHomecare President Tyler Wilson.
"A workable system under Part B has to reflect the way the real world operates and how patients, physicians and HME providers interact. This latest OIG fraud directive completely misconstrues fraud controls that are already in place and misunderstands how the typical Medicare beneficiary expects to receive home medical equipment."
Industry attorney Jeff Baird agreed, calling the OIG alert "illogical, overreaching and unfair to beneficiaries, physicians and HME companies.
"The clear intent behind the telephone solicitation statute is to prevent HME companies from cold-calling Medicare beneficiaries for the purpose of selling Medicare-covered items to them," commented Baird, chairman of the Health Care Group at Brown & Fortunato, Amarillo, Texas.
"Over the years, the OIG and CMS have hammered home their position that ordering DME should be physician-driven, and not supplier-driven. The physician has a position of trust with the patient; the physician speaks for the patient. If the physician orders an item and sends the order to the supplier, then the physician is doing so on behalf of the patient. It is a matter of convenience for the patient for the supplier, upon receipt of the physician's order, to call the patient and arrange for delivery. This scenario comes nowhere close to the 'unsolicited telemarketing' concerns raised by the OIG."
Noting the fraud alert could have "severe repercussions and unintended consequences" for providers, AAHomecare's Walt Gorski, vice president for government affairs, said the association has requested a meeting with CMS about the fraud alert and is developing a response to be sent to CMS and the OIG.
"We also contacted the OIG to express our shock and dismay for their lack of understanding of how HME is provided to patients," Gorski said.
In the meantime, warned attorney Neil Caesar, president of The Health Law Center, Greenville, S.C., "The OIG only issues these alerts when they are aware of abuses, intend to pursue investigations and prosecutions and want to eliminate anyone's ability to claim confusion or ignorance. So this is not a theoretical communication."
Caesar said he thinks providers can "expect scrutiny not only for phone calls but also for Internet activities. And in-person solicitations are also problematic — for example in an assisted-living community."
Read the two-page OIG report at http://www.oig.hhs.gov/fraud/docs/alertsandbulletins/fraudalert_telemarketing.pdf.
