Is direct solicitation still murky for providers?

WASHINGTON - CMS plans to take another look at its ban on "direct solicitation" of Medicare beneficiaries, but in the April 4 Federal Register, it proposes bringing the standard back to its original form.

The ban on "direct solicitation" of beneficiaries took effect Sept. 27, 2010. In addition to cold calls, providers could not make in-person contacts, or use e-mail and instant messaging.

"The way I view this proposed legislation is, CMS is waving the white flag and surrendering," said Elizabeth Hogue, a private practice attorney based in Burtonville, Md.

Under the direct solicitation ban, there was concern that HME providers could not contact patients after receiving a referral from a doctor--a common industry practice, said Hogue.

"That's just not the way the industry works, and for good reason," she said. "Patients have enough to remember; they're sick or they're in pain. The system that was in place worked very well until CMS decided to change the rules."

That still doesn't mean it's clear what providers are supposed to do, said attorney Neil Caesar.

"CMS did not change the portion dealing with physician verbal orders," said Caesar, president of the Health Law Center. "The scope and implications of the rule remain unclear and troubling, and we still don't understand what sort of evidence of consent is required."

To be on the safe side, providers should be sure to obtain written consent from any referred patients, said Caesar.

In the proposed rule, CMS said it planned to monitor suppliers' marketing activities, with plans to address the issue in the future.

"CMS cares very much about this," said Caesar. "I think it would be foolish for suppliers to view this as evidence that this is no longer an important issue."