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.
