CMS Clarifies Cold-Calling and OIG Fraud Alert
On January 14th the Office of Inspector General (OIG) issued a Special Fraud Alert (SFA) in response to reports of DME companies cold-calling Medicare patients. Unsolicited direct and third party DME telemarketing calls are a violation of section 1834(a)(17)(A) of the Social Security Act, which only allows suppliers to contact patients if: 1) they have received prior written consent from the patient, 2) are calling about a previously supplied item or 3) have furnished an item to the patient within the past 15-months.
The problem for DME suppliers arose when the OIG’s alert classified first-time calls to patients for which a physician order had been received as ‘cold-calls,’ stating that “a physician’s preliminary written or verbal order is not a substitute for the requisite written consent of a Medicare beneficiary.” This created a dilemma for suppliers who were now left wondering whether they could continue contacting new patients to arrange for delivery.
Upon release of the alert, several industry stakeholders wrote letters to both the OIG and CMS expressing their concerns over the OIG’s interpretation of what constitutes cold-calling.
In response, the OIG issued a recent letter stating that its SFA’s are meant to provide suppliers with guidance on what constitutes fraudulent practices, and that the recent telemarketing SFA “does not articulate a new interpretation of the law.”
In conjunction with the OIG’s statement, CMS also released a six question Telemarketing FAQ for DME suppliers. Per the FAQ, suppliers may contact a patient based on the receipt of a physician order, IF the patient has been made aware that a supplier will be contacting them regarding the prescribed DME. In this case, the patient’s physician may contact a supplier on behalf of the patient, who may in-turn call the patient to confirm delivery and billing information. The key point here, is that the patient must understand that their physician will contact a DME supplier on their behalf. If a supplier calls a patient based solely on a physician order and the patient had no knowledge that their physician would even contact a supplier, the call would be considered unsolicited.
Also of note, is that suppliers may only use the initial call to discuss those items in the physician order and may not solicit sales for other DME.
CMS has left the decision of whether to collect and maintain documentation from the physician showing that the patient is aware they will be contacted to the supplier’s discretion.
Tags: CMS, DME Delivery, DME Fraud Alert, OIG