Standard No. 11: What the Changes Could Mean for You
In a special series for HomeCare Monday leading up to the March
25 deadline for comments, health care attorney Neil B. Caesar,
president of the Health Law Center, Greenville, S.C., will help
provide clarification and insight on CMS’ proposed revision and
expansion of the DMEPOS supplier standards. This week, Caesar’s
comments are directed to changes in existing standard No. 11, which
deals with methods of contact with Medicare patients:
This standard apparently deals with cold-calling, the
circumstances under which sales reps may solicit new business from
potential customers.
The current standard tracks long-standing policy and requires
that sales reps only contact potential Medicare customers if: they
have given written permission to be contacted; if the supplier has
furnished a Medicare-covered item to them and is calling to
coordinate delivery, etc.; or if the supplier has previously
supplied a Medicare-covered item within the past 15 months and is
now calling about a different purchase or rental.
CMS now proposes to extend the existing three exceptions to a
broader array of contact methods to clarify that suppliers “cannot
directly solicit patients, which includes, but is not limited to, a
prohibition on telephone, computer email or instant messaging,
coercive response internet advertising on sites unrelated to DME
POS products, or in person contacts.”
This change is significant in several respects. First, CMS
characterizes the explicit expansion to most forms of communication
as a “clarification” of the standard and not a “modification.” That
means CMS’ position is that this rule is already in effect, though,
arguably, not well-stated. This is important, because whenever CMS
indicates an intent to revise one of its rules, it usually implies
a particular concern with violations of that rule and abuse of the
system. Thus, with CMS’ emphasis on this standard, it is likely we
may see an enforcement crackdown of this rule over the next
year.
Second, in its commentary about the proposed revision, CMS
emphasizes that violations will allow CMS or the National Supplier
Clearinghouse to revoke the supplier’s billing privileges and,
further, to “determine if such billing may be for fraudulent or
unnecessary supplies.” Thus, it is clear that CMS views
cold-calling abuses as evidence of potential fraud because of the
potentially coercive message used.
Third, this proposed revision has significant ramifications for
HME companies who lose key personnel to competitors. In many cases
when an employee jumps ship, that person will try to take customers
with whom he or she has had a relationship over to the competition.
Often this is done in a manner that violates the employee’s
fiduciary obligations to the company by appropriating proprietary
customer contact information. Too often, however, if an HME company
tries to fight this misappropriation, the new employer will
threaten to tie the fight up in expensive litigation so the
previous employer backs away.
Under CMS’ proposed revision, it is clear that the customer
relationship belongs to the original supplier, the former employer.
Therefore, if the departing employee communicates with previous
customers, he or she will be engaging in cold-calling in violation
of standard No. 11. Such a violation would subject the new employer
to potential revocation of billing privileges and investigation for
fraudulent billing. This revision thus gives employers who lose key
personnel an important weapon to use when protecting their
proprietary customer information.
Finally, because CMS has characterized this provision as a
“revision,” I believe this new weapon to use against
misappropriation of customers is available immediately, regardless
of whether or when the new standard takes effect.
OUR DIGITAL PARTNERS