OK to contact beneficiaries? 'It's as clear as mud'

Wednesday, December 22, 2010

HOUSTON - An HME provider who was going above and beyond to meet Medicare's rules on when it's OK and not OK to contact beneficiaries plans to change his ways.

About a year ago, the Office of Inspector General (OIG) issued a fraud alert that advised providers not to contact beneficiaries unless they were given written permission. So Jason Holzman, general manager of Health Management Services in Houston, began asking referral sources to ask beneficiaries to sign consent-to-treatment forms and to fax those along with their prescriptions.

The bad news: Referral sources bristled at Health Management's new policy.

"It upset them," Holzman said. "It's the typical thing that happens in the HME industry: Why is this company doing it and this other company isn't? Our referrals started decreasing because we were doing it and others weren't."

Holzman estimates that Health Management lost a handful of referral sources in 2010 because they didn't want to use the forms.

The good news: Shortly after the OIG issued its alert, CMS issued an FAQ that backpedaled somewhat on the statute.

"The FAQ states that when a doctor orders DME for Mrs. Smith, she needs to be only aware that the doctor is doing this, then the provider can call her," said Jeff Baird, a healthcare attorney with Brown & Fortunato.

But still, there's a catch, Baird said.

"If the government ever asks the provider, 'What proof do you have that Mrs. Smith was aware?' they need to have evidence," he said. "So it's as clear as mud."

That's why Baird advises his clients to have referral sources "make a notation somewhere that Mrs. Smith is aware that we're sending the order to XYZ Medical. You might not have a signature, but it's in the notes."

Baird calls this practice "the silver standard." He calls Health Management's policy "the gold standard."

It may be too late for Holzman to get back the referral sources he lost, but he plans to stop using the consent-to-treatment forms in 2011. He's leaning more toward the "the silver standard."

"I don't want to lose any more business," Holzman said.