Legal

Q. Under competitive bidding, when an HME receives a prescription for a brand-name item, must he provide that brand? A. A physician or treating practitioner may prescribe a particular brand or mode of delivery of a competitively-bid item, if he determines that the particular brand or mode of delivery would avoid an adverse medical outcome for the beneficiary; he must also document the reason in the medical record. When a contract supplier receives such a prescription, he must: (1) furnish the prescribed brand or mode of delivery; (2) consult with the physician or treating practitioner to find an appropriate alternative and obtain a revised written prescription; or (3) assist the beneficiary in locating a contract supplier that can furnish the prescribed brand mode of delivery. Medicare does not make an additional payment to the contract supplier for furnishing the particular brand or mode of delivery. A contract supplier that furnishes an item different from the prescribed brand or mode of delivery may not submit a claim to Medicare for that item. In the preamble to the final rule, CMS stated that physicians or treating practitioners should rarely need to prescribe a particular brand or mode of delivery. CMS also stated that it expects suppliers to follow the above steps in order. Taken at face value, it means that a supplier who can't supply a brand name product must consult with the physician for an alternative, and may not locate a contract provider who can supply the prescribed brand until the physician has declined to revise the order. These statements are inconsistent with the regulatory language, and are not in the best interest of beneficiaries. Fortunately, statements in the preamble are not legally binding. Unless CMS revises the regulation to require that the three steps be taken in order, suppliers should perform the steps in whatever order is in the best interest of the beneficiary. hme Phuong Nguyen is a healthcare attorney with Brown & Fortunato, in Amarillo, Texas. Reach him at 806-345-6308 or pnguyen@bf-law.com.