CMS finalizes solicitation rule

Friday, March 16, 2012

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.



As difficult as it may be. It sounds like somewhere on the referring written order notice should be given that the referring (?) has given notice to the patient that xyz would be calling or one of the RAC's PSC's or MAC's is going to do a dance one someones head and reap the rewards of another Provider's demise.

This is absolutely a good thing. With the exception of the rare walk in patient we never even hear about the patient until the physician contacts us about a specific product for their patient. It doesn't appear that documentation is too burdensome. This will hopefully curtail whateber bad actors are left. I think this is a net positive.

Compliance issues aside, it just makes good practical sense for the physician&#39;s office to contact the patient first for operational reasons too.<br />