BALTIMORE — Seems CMS has had a change of heart about labeling phone calls made to Medicare patients on the basis of a physician order as a violation of the DME telemarketing prohibition.
In a Special Fraud Alert issued in January, the Office of Inspector General had warned against the common practice, stating specifically that providers could not contact beneficiaries "based solely on treating physician's preliminary written or verbal orders prescribing DME for the beneficiaries." According to the OIG, physician orders are not a substitute for a beneficiary's written consent to be contacted.
That brought an outcry from the industry.
"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 Tyler Wilson, president of the American Association for Homecare. "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."
Last week, CMS issued an FAQ to clarify the OIG alert. Following is AAHomecare's full report on the issue:
HME providers do not engage in unsolicited telephone communication when they call beneficiaries to fill orders for DME if the physician has contacted the provider on behalf of the beneficiary and the beneficiary is aware that "a" home care provider will be contacting him or her to fill the order.
The Centers for Medicare and Medicaid Services (CMS) released a new "Frequently Asked Questions" (FAQs) document to clarify the recent Office of Inspector General (OIG) "Updated Special Fraud Alert on Telemarketing by DME Suppliers." The original OIG alert published in January 2010 would have prohibited an HME provider from contacting a Medicare beneficiary unless the beneficiary had given the HME provider consent to do so. In the CMS FAQs, the agency clarified that statement.
The OIG issues "Special Fraud Alerts" to address specific trends of health care fraud and practices that it believes are problematic. Specifically, the OIG alerts have served to provide general guidance to the health care industry on violations of federal law as well as to provide additional insight to the Medicare carrier fraud units in identifying health care fraud schemes.
CMS' clarification follows AAHomecare's aggressive efforts responding to the January 13, 2010 OIG Special Fraud Alert which stated that telephone contact with beneficiaries on the basis of a physician order was prohibited unless the provider had the beneficiary's prior written consent to the call.
Importantly, there is no requirement that the beneficiary know beforehand which provider will be contacting him or her. The FAQs only require that the beneficiary be "aware" that "a" provider will be contacting him or her about the doctor's order for DME. Also, providers are not required to maintain any documentation with respect to these contacts.
However, CMS leaves open the possibility that some communication with beneficiaries based solely on a doctor's order might, depending on the circumstances, be prohibited if the beneficiary is unaware that the doctor has ordered DME.
AAHomecare will follow up with CMS to further clarify this specific question and answer based on recommendations from members of the AAHomecare Regulatory Council.
To view the telemarketing FAQs published by CMS.
