FAQs Clarify OIG Telemarketing Alert

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.