Legal: Mind how you make contact

Q. How do I comply with the new Medicare beneficiary solicitation rules?

A. The Centers for Medicare and Medicaid Services (CMS) recently finalized updates to the Medicare DMEPOS supplier standards. The standard prohibiting telemarketing to Medicare beneficiaries has been greatly expanded.

Effective Sept. 27, 2010, the new rule prohibits the "direct solicitation" of a Medicare beneficiary, meaning that without a Medicare beneficiary's consent, an HME supplier or its agents cannot directly contact the beneficiary for the purpose of marketing the supplier's healthcare products or services.  The prohibition applies not only to telephone contacts, but also in-person contact, e-mail and instant messaging.

CMS states that a supplier cannot contact a beneficiary "solely" on a physician order but allows a supplier to contact beneficiaries to gather delivery and billing information if the  physician contacts the supplier on behalf of the beneficiary with the beneficiary's knowledge that the supplier will be contacting him or her for the prescribed item.  Likewise, CMS will not consider it a "direct solicitation" if a hospital patient completed a consent form allowing the hospital staff to share beneficiary information with the supplier to initiate service. 

In addition to defining what is and is not a direct solicitation, CMS has modified the exceptions allowing a direct solicitation as:

4 The beneficiary has given written permission to the DME supplier or to the ordering physician or practitioner to make contact regarding the furnishing of a Medicare-covered item for rental or purchase; or

4 The supplier has furnished a Medicare-covered item to the beneficiary and is contacting the individual to coordinate delivery; or

4 If the contact concerns a Medicare-covered item other than one previously furnished, the supplier must have furnished at least one covered item to the Medicare beneficiary during the preceding 15-month period.

HME suppliers need to inventory how their staff contact Medicare beneficiaries absent an established business relationship and a legitimate reason.

Amy Leopard heads the health care practice group at the law firm of Walter & Haverfield LLP. Reach her at aleopard@walterhav.com.