CMS finalizes solicitation rule

WASHINGTON - CMS's March 14 final rule may say that HME providers have to get written consent before contacting Medicare beneficiaries, but the rule isn't quite as strict as it seems, industry attorneys say.

In the rule, CMS advises providers to refer to an FAQ that states providers are allowed to contact beneficiaries based on a physician's referral, if the beneficiary has prior knowledge of the call. That provides much-needed clarity, says attorney Neil Caesar.

"In the answer to this frequently asked question, CMS said exactly what people are wanting them to say, which is a practical rule with regard to physician referrals," said Caesar, president of the Health Law Center in Greenville, S.C.

The March 14 rule is a follow-up to a proposed rule published in April 2011.

Also finalized by the March 14 rule: the removal of an expanded definition of direct solicitation that was included in an original version of the rule. The definition prevented contact via email, instant message and in person. That's in addition to a previous prohibition against cold calls.

The changes to the rule are the result of a huge backlash from the industry, said attorney Jeff Baird.

"The industry went nuts," said Baird, chairman of the Health Care Group at Brown & Fortunato in Amarillo, Texas. "The proposed rule was just irrational and the industry, in a very loud, clear and singular voice, let CMS know that this was unworkable and had no basis in reality."

Caesar says providers should still be careful with physician referrals, making sure to ask right away whether the beneficiary knows they would receive a call.

"If that answer is anything other than 'yes,' caution has to rule the day," said Caesar.

Providers should keep a log or record showing they routinely check for prior knowledge to prove they are complying with CMS's requirements, Caesar said.