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.