CMS FAQ ‘Defies Logic’

BALTIMORE — Solicitation of beneficiaries and records
storage were on the list as CMS attempted to clarify questions
raised by the expanded supplier standards within the text of a Jan.
14 FAQ.

As part of CMS’ final rule on the
revised standards, published in the Aug. 27, 2010, Federal
Register, Standard No. 11 prohibits DME suppliers from
directly soliciting Medicare beneficiaries.

According to CMS, “Direct solicitation occurs when a DMEPOS
supplier or its agents directly contacts an individual Medicare
beneficiary by telephone, email, instant messaging, or in-person
contact without his or her consent for the purpose of marketing the
DMEPOS supplier’s health care products or services or both.”

Jeff Baird, chairman of the Health Care Group at Amarillo,
Texas-based Brown & Fortunato, believes the statement opens the
door for providers to mail marketing materials to beneficiaries.
“Receiving something in the mailbox is not intrusive,” said Baird.
“Beneficiaries do not have to contend with pushy salesmen. They can
simply throw the envelope in the trash.”

Yet another FAQ comment expanded on the topic of advertising,
stating, “We believe that general mass advertising through the post
office is not prohibited. Targeted mailings to specific
beneficiaries are prohibited.”

Baird contends the statement raises more questions than it
answers. “This defies logic,” says Baird. “Regardless of whether
the envelope that appears in Mrs. Smith’s mailbox is a result of
‘general mass advertising’ or a ‘targeted mailing,’ the fact
remains that it is simply an envelope that Mrs. Smith can throw in
the trash. Plus, what is the definition of ‘general mass
advertising’ and ‘targeted mailing?’ This FAQ is unnecessary and
simply wrong.”

During last week’s CMS Open Door Forum, the agency’s John
Spiegel seemed to back off the expanded solicitation prohibitions,
stating that pending further investigation, “CMS does not intend to
instruct Medicare contractors to implement the expanded provision.”
Spiegel did not address any delay in enforcement of the “general
mass advertising” vs. “targeted mailing” issue, but Baird said the
delay likely applies to this issue as well. (For more, see
“Face-to-Face, Direct
Solicitation and PECOS Addressed — or Not — on Open
Door“.)

Off-site records storage was also addressed under Supplier
Standard 7 in the FAQ, which stated that it is not
permissible for providers to use an off-site third party to store
records — even if those records could be quickly
retrieved.

“That is beyond ridiculous — that is absurd,” lamented
Baird. “I have received multiple emails from small and large
providers throughout the country who said, ‘You have got to be
kidding me. All of us store records off-site.’ There is no logical
reason for this restriction to storing records off-site.”

Again falling under Baird’s definition of “absurd” is a line
from the FAQ that says a physician needs written permission from
the beneficiary to allow contact by a DME supplier that receives
the physician’s order. According to Baird, when the modified
standard came out, CMS said the supplier may also contact the
patient when the physician has informed the patient that he will
contact the DME company on the patient’s behalf.

Previously, CMS only required that a doctor notify a patient
that he was sending an order to a DME company. The DME did not have
to “police” or document the physician’s actions. “This is directly
contrary to what just came out,” said Baird. “Now, CMS has said
that in order for you, the DME company, to call the patient in
response to a doctor’s order, the doctor must have written
permission from the beneficiary allowing the contact. That is not
how the real world works.”

Read the entire FAQ on the National Supplier
Clearinghouse website.