On Aug. 27, the Centers for Medicare and Medicaid Services published a final rule on Medicare enrollment standards for DMEPOS providers. The rule expands on existing standards that providers must meet to establish and maintain billing privileges in the Medicare program; the new supplier standards took effect Sept. 27. In a special series for HomeCare Monday, health care attorney Neil Caesar of the Health Law Center provides clarification and insight on a number of the new standards. Here's what Caesar has to say about Supplier Standards Nos. 9 and 30:
Many of the revisions to the supplier standards address the physical operations of the supplier business. In addition to changes pertaining to the physical facility outlined in Supplier Standard No. 7 (HomeCare Monday, Oct. 4), this week we will examine new Standard No. 30 (hours of operation) and revised Standard No. 9 (business telephone).
CMS first identified its desire for minimum mandatory hours of operations in the proposed standards released in 2008. The final rule maintains the proposed requirement that suppliers "be open to the public a minimum of 30 hours per week …." CMS further intends for this standard to be read in combination with Standard No. 7 (D), so that the hours of operation must be prominently posted for the public to see and understand.
There are no exceptions to this requirement. CMS believes a minimum number of hours "is in the best interest of the Medicare program and Medicare patients, especially for those who are disabled or have limited means of transportation." Evidently, CMS has a significant concern that beneficiaries be able to visit the supplier during traditional business hours, and that the business be open long enough to accommodate such visits — even when the beneficiaries require a fair amount of travel time, as with public transportation, etc. CMS also indicates that minimum hourly requirements are necessary to provide convenient access for site inspections and other official regulatory activities.
A number of commenters to the proposed rules suggested that CMS allow an exemption for temporary closings to account for patient deliveries, short-term closures, holidays, natural disasters, emergencies and other unforeseen occurrences. The rule prior to these changes had been that emergency closures were permitted as long as they were occasional, and suppliers clearly posted a sign on the door indicating when they were gone and when they would be back. Under the new Standard No. 30, however, it is clear that CMS is taking a hard line on this issue.
As CMS notes, "while we recognize personal emergencies do occur, we believe that suppliers should be available during posted business hours. Moreover, we believe that a DMEPOS supplier should do its best to plan and staff for temporary absences." This hard line also poses a significant problem for DME suppliers who wish to have part-time or "appointment only" hours for some locations. This is particularly relevant to rural areas where a full-time store may not be viable economically, but it may occur elsewhere. CMS is not open to allowing such carve-outs, even though commenters have suggested that such part-time activities may be the only practical way for certain locations to remain open. We will see whether CMS' hard line results in the closure of important, but part-time, locations — especially in under-served areas.
Officials at CMS have taken a similar hard line with regard to hours of operation that change frequently. CMS notes that "Medicare beneficiaries should not be advised that the supplier has temporarily changed their hours once they have made the effort to visit the supplier." Further, such changes would make it "virtually impossible" for CMS to determine if the supplier is in operation. CMS emphasizes that it is the supplier's responsibility "to establish staff contingencies to ensure that their business remains open to the public in spite of a personal emergency." Once again, CMS' rule indicates a focus on traditional retail operation activity. Very small suppliers may find it difficult to maintain consistent hours of operation in light of actual, diverse needs on the staff's time.
Occasionally, "unforeseen emergencies" may occur that would require temporary changes to scheduled hours, and CMS acknowledges that the NSC should take these circumstances into account. However, they emphasize that suppliers should develop contingencies in advance for remaining open when personal emergencies or staffing problems occur.
There are a few exceptions to this rule. First, physicians, physical therapists and other licensed health professionals who have DMEPOS supplier numbers, but who limit their DMEPOS products for use by their own patients, are not bound by the 30-hour requirement. This exception applies only to practitioners who provide a small amount of DME to their own patients, and only to that extent.
Second, CMS has also carved out suppliers who work with custom-made orthotics and prosthetics. CMS provided this exception in response to a concern that the 30-hour minimum requirement would "not allow a sole proprietor, being the only certified fitter as well as the owner, to be sick, go on vacation, or have a personal emergency without violating Medicare standards." CMS agreed and adopted its exception for suppliers working with custom-made orthotics and prosthetics specifically in response to this concern. Evidently CMS believes that many, if not most, custom fitters work as part of small operations, and thus will be allowed to operate differently than others who are subject to Supplier Standard No. 30.
Supplier Standard No. 9 also focuses on the physical operation of the supplier, this time addressing business telephone operations. Specifically, the revisions to Standard No. 9 require a supplier to maintain a primary telephone operating at the supplier location listed under the name of the business, locally or toll-free for beneficiaries. Further, the supplier is prohibited from using cellular phones, beeper numbers or pagers in lieu of the business telephone. Forwarding calls from the primary business telephone to a cellular phone or a beeper/pager is also prohibited. Finally, the exclusive use of answering machines, answering services or fax machines cannot be the primary business telephone during posted operating hours.
It does not appear that CMS' prohibition would apply to the use of cell phones, beeper numbers and pagers for internal communications within the supplier operations. Rather, the prohibition seems to focus on calls to and from beneficiaries or referral sources. It remains to be seen how broadly CMS will apply the prohibition on cell phones, beepers and pagers for outside calls. For example, would an occasional cell phone call from a sales rep to a physician's office be allowed? Such utilization should be held to a minimum until this sort of question is clarified.
Similarly, CMS' restriction on call forwarding applies not only to forwarding to cell phones but would also apply to a branch office forwarding calls to a main business office number. When multiple practice locations exist, CMS believes that each one should handle its own phone calls. Will CMS allow a rollover line for calls that can't be answered in time? Again, these sorts of details have yet to be addressed.
There is no doubt that this change to Supplier Standard No. 9 will affect many business activities for suppliers both large and small. Use of communication devices, other than in-office business telephones, should be kept to a minimum and used mainly for internal communications among supplier personnel.
Neil B. Caesar is president of the Health Law Center (Neil B. Caesar Law Associates, PA), a national health law practice in Greenville, S.C. He also is a principal with Caesar Cohen Ltd., which offers compliance training, outsourcing and consulting and the author of the Home Care Compliance Answer Book. You can reach him at 864/676-9075 or ncaesar@healthlawcenter.com.
