Q. CMS issued a proposed rule regarding Medicare provider standards on Jan. 25. Can I offer input on this proposal?
A. Yes, you can and you should, because the proposed rule contains some significant changes. It would require, for example, that all DMEPOS providers agree "not to directly solicit patients, which includes but is not limited to, a prohibition on telephone, computer email or instant messaging, coercive response Internet advertising on sites unrelated to DMEPOS products, or in-person contacts." This proposal goes beyond the telephone prohibition established by Congress and, if implemented, would dramatically restrict the marketing practices of the entire industry.
Among the provisions, the proposal would require a provider to obtain a comprehensive liability insurance policy that is at least $300,000 per incident covering both the provider's place of business and all customers and employees of the provider, and obtain oxygen from a state-licensed oxygen provider (applicable only to those providers in states that require oxygen licensure).
In general, federal law requires CMS to undergo a formal rulemaking process prior to issuing a substantive policy change. The proposed rule issued by CMS is subject to a 60-day comment period and the agency must accept written comments from any provider or any other interested party up until 5 p.m. EST on March 25, 2008. Providers may comment favorably or unfavorably on any issues related to the proposal. A provider, for example, who views the marketing proposal above as a imposition on free speech and the ability to educate the consumer, should use the public comment period as an opportunity to say why. CMS must address comments in writing before issuing a final rule. The public may submit comments to CMS electronically, by regular mail, by express or overnight mail, or by hand or courier. This information is set forth in greater detail in the proposed rule. hme
Steve Azia is a healthcare attorney with Eastwood & Azia in Washington, D.C. Reach him at (202) 296-4100.