On January 13, 2009, the Office of the Inspector General released an updated Telemarketing Alert, which described when a provider could and could not solicit a Medicare Beneficiary

The rule states that HME providers may only contact Medicare beneficiaries in three circumstances:

1. The beneficiary has given written permission to the supplier to make contact by telephone; or
2. The contact is regarding a covered item that the supplier has already furnished the beneficiary; or
3. The supplier has furnished at least one covered item to the beneficiary during the preceding 15 months.

But the rule has been updated with a very unrealistic provision: "A physicians' preliminary written or verbal order is not a substitute for the requisite written consent of a Medicare beneficiary"

The OIG Alert does not give any details about how a physician, home health agency or hospital case manager is expected to make arrangements for the patient to obtain needed medical equipment if the DME provider cannot contact the patient based on a physician order.

Is a hospital case manager supposed to give the patient a telephone book and explain: "Before you can be discharged find a DME provider, call them up to make arrangements and then fax them a form giving the company permission to contact you."

Will a patient have to fax a Permission Form from a doctor's office as well?

These are questions that we posed to the OIG. Unfortunately the OIG has yet to return our calls, after leaving four separate messages on the Miami Fraud phone number which was published on the alert. I only called and left my name and phone number. Thankfully I had no fraud to report.

After giving up on the Miami office, I called the Dallas office and was given the number for an FBI field agent in Sherman, TX. She contacted me back and after I explained a scenario in which a doctor sends our DME company a physician's order for home medical equipment the agent asked, "Why would a doctor contact you, wouldn't the doctor just give the prescription to the patient?"

I asked how they expected a disabled person, with a medical condition find the proper home medical equipment provider. The FBI agent gave me the number to the OIG office in Washington, D.C. and I received a response from James Cannatti.

Mr. Cannatti explained that the False Claims Act was subject to interpretation and that my questions would have to be posed to CMS Policy Advisor Kim Brandt.

I have yet to contact Ms. Brandt, as AAHomecare's Regulatory council is meeting with her to pose these questions. I think the first question should be: Why release a new policy without reviewing it with industry leaders to see how it will affect the healthcare and patient community?

Click to view the OIG Alert