Is it OK to contact beneficiaries? CMS clears up confusion--sort of

Thursday, February 18, 2010

BALTIMORE - An FAQ issued by CMS last week provided some relief for providers baffled by a recent Office of Inspector General (OIG) alert that would have hampered a common business practice.

The January alert stated that providers may not contact beneficiaries "based solely on treating physician's preliminary written or verbal orders prescribing DME for the beneficiaries."

"(With this FAQ), CMS is saying that's really unworkable," said Jeff Baird, a healthcare attorney with Brown & Fortunato in Amarillo, Texas. "All in all, the FAQ is a positive."

The FAQ addresses six questions, including "Is a supplier contacting the beneficiary based on the receipt of a physician order considered an 'unsolicited' contact?" CMS's answer: "If a physician contacts a supplier on behalf of a beneficiary with the beneficiary's knowledge, and then a supplier contacts the beneficiary to confirm or gather information needed to provide that particular covered item (including delivery and billing information), then that contact would not be considered 'unsolicited.'"

Baird says the key phrase here is "with the beneficiary's knowledge."

"Essentially, what it's saying is, look, if the doc sends an order to an HME company, and the doc does that with the beneficiary's knowledge, then the HME can turn around and call the beneficiary," he said. "But, if the doc sends the order to the HME without the beneficiary's knowledge--and there's no way the HME would know that--then the HME company cannot call the beneficiary."

It's not common practice and it's not a requirement for providers to maintain documentation on whether beneficiaries know doctors are contacting providers on their behalf. But CMS doesn't seem steadfast on that point, says Baird.

"It's saying if you are ever questioned you need to be able to produce some evidence," he said.

Additionally, the FAQ states that the "beneficiary need only be aware that a supplier will be contacting him/her regarding the prescribed covered item."

Despite the ambiguities, this much is clear: The FAQ and the January alert before that reinforce that providers cannot "cold call" beneficiaries, says healthcare attorney Neil Caesar.

"We are left with same rules that existed a number of years ago," said Caesar, president of the Health Law Center.