It is clear that CMS does not like DME suppliers calling Medicare beneficiaries. The concern is that an elderly person who does not feel well can be easily taken advantage of over the phone by an unscrupulous supplier.
The telephone solicitation statute and Supplier Standard #11 are limited to DME suppliers. They are meant to protect the elderly from getting cold-called. The statute and standard essentially say the same thing.
Picture Mrs. Smith, a 78-year-old Medicare beneficiary, watching television in her living room. ABC Medical Equipment, Inc., may not call Mrs. Smith, directly or through an agent, unless one of three conditions exists:
First condition—ABC has provided a Medicare-covered item to Mrs. Smith any time in the past, and ABC is calling Mrs. Smith about that particular item.
Second condition—ABC has provided a Medicare-covered item to Mrs. Smith within the past 15 months, and ABC is calling Mrs. Smith about other products that ABC can provide.
Third condition—ABC has never provided a Medicare-covered item to Mrs. Smith. Mrs. Smith is a prospective customer of ABC. Mrs. Smith has given her consent (electronic or “blue ink”) to be called by ABC. Here is what cannot happen: 1) ABC cannot call Mrs. Smith and ask for permission to call her at a later time. 2) A marketer cannot cold-call Mrs. Smith and ask her if ABC can call her. 3) A “final expense” life insurance company cannot call a beneficiary such as Mrs. Smith, ask questions about her life insurance, then ask if she is interested in DME and, if the answer is yes, transfer her name to ABC. 4) A marketer cannot call Mrs. Smith under the guise of a survey, ask her questions about her house, dog and flowers, ask if she is interested in DME and, if she answers yes, then transfer her name to ABC.
Conversely, ABC can call Mrs. Smith if it is a solicited call—that is, if Mrs. Smith has affirmatively taken action that reflects her consent to be called. For example, let’s say that Mrs. Smith watches a television commercial and calls ABC. Mrs. Smith reaches ABC’s voice mail. Mrs. Smith leaves a message asking that ABC call her. In response, ABC calls Mrs. Smith.
It is unlikely that CMS will allege that the telephone solicitation statute and Supplier Standard #11 are violated. Additionally, let’s say Mrs. Smith goes to a web landing page for ABC, fills out the consent-to-be-called box and clicks “submit.” In response, ABC calls Mrs. Smith.
This is a proper electronic consent on condition that (1) ABC is the only company listed on the web landing page; (2) the consent is specific to ABC and (3) the box that Mrs. Smith submits clearly states that by selecting it, she is giving ABC the permission to call her.
Unsolicited phone calls to Medicare beneficiaries are a big deal to two of the most powerful CMS contractors: the NSC and ZPICs. On several occasions, I have seen a ZPIC instruct DME MACs to suspend payments to a DME supplier because the supplier is allegedly violating the telephone solicitation statute.
I have also seen the NSC threaten to revoke a DME supplier’s Part B supplier number because the supplier is allegedly violating Supplier Standard #11. For example, the NSC sent a letter to a client that stated the following:
“Dear Supplier: This letter is official notice that the…National Supplier Clearinghouse (NSC) has found the facility…to be in violation of…[Supplier Standard #11]. Our office has received information that your company contacted a patient in order to solicit their business…DMEPOS suppliers are prohibited from making unsolicited telephone contacts. Please provide proof of your compliance with this standard. Please be advised that you are allowed 21 calendar days from the date of this letter to provide the SACU with information that may allow us to verify your full compliance with the DMEPOS supplier standards. If you fail to comply with the 21-day deadline, the SACU may initiate actions to revoke your Medicare DMEPOS supplier number.”