Moving the HME Industry Forward


What the CMS Contractors are Asking Your Patients

April 7, 2013

AMARILLO, TX – Over the past several years, CMS contractors (NSC, PSCs, ZPICs, and others) have become increasingly aggressive in scrutinizing operations of HME suppliers. As they always have, the contractors continue to review patient files. However, contractors are taking their scrutiny to a new level by communicating directly with patients and their treating physicians.

For example, it is not uncommon for a contractor employee to call a Medicare beneficiary at 8:00 in the evening and ask a number of questions pertaining to (1) how the patient became acquainted with the HME supplier; (2) whether the physician—or the HME supplier—suggested to the patient that he/she purchase the product; (3) whether the patient believed that he/she needed the product before communicating with the HME supplier; (4) whether the patient truly needs the product; and (5) whether the patient actually uses the product.

Clients have recounted to me reports from their patients to the effect that when the patients received phone calls from contractors, the contractors attempted to persuade the patients to state that they really did not need the product provided by the HME supplier. Some patients have stated that the contractors would ask a question such as: “Now Mrs. Smith, do you really need the wheelchair that was provided to you?” Too often, an elderly, sick person will give whatever answers he/she thinks will make the questioner happy.

An example of this type of approach is a two-page questionnaire that a contractor recently sent out to patients of a mail order diabetic supplier. One of the questions asked is the following: “How did you choose this supplier? Circle or highlight one: M.D., TV, NEWSPAPER, NURSE, PHONE SOLICITATION, OTHER.”

The challenge is that a Medicare beneficiary likely does not understand what “phone solicitation” means under Medicare regulations, and the phrase “phone solicitation” could encompass both solicited and unsolicited telephone calls. Assume that the HME supplier markets exclusively through television commercials and the internet. Neither of those options is provided as an answer.

This type of misleading question (and answers) will likely lead to a significant number of Medicare beneficiaries circling the “phone solicitation” response when, in fact, the beneficiaries placed the initial calls to the HME supplier and received return telephone calls, or the beneficiaries provided their information online and requested to receive telephone calls from the HME supplier.

When we asked the contractor about the confusion this could cause the Medicare beneficiary, the contractor responded that the question is absolutely clear and not confusing at all. Inasmuch as the contractors control the HME supplier’s cash flow (i.e. the ZPIC can instruct the four DME MACs to suspend payments and/or the NSC can revoke the Part B supplier number), aggressive and confusing questions (being asked to Medicare beneficiaries) puts the HME supplier at a real disadvantage.

One way to level the playing field is for HME suppliers to maintain communications with its customers. In particular, HME suppliers can tell their customers that they will likely be contacted by a government official who will ask them about the products and services they received. This way, the patients will not be blindsided by a phone call. It is also appropriate for the HME supplier to request that the patients call the supplier (after the patients received phone calls from contractors) and brief the HME supplier on how the conversation went.

At the end of the day, if a Medicare beneficiary is fully informed, knows what is going on, and is on the “same page” as the HME supplier, then the risk that the patient will complain or give an inaccurate answer to a contractor employee is greatly reduced.

Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato PC, a law firm based in Amarillo, Tex. He represents pharmacies, infusion companies, HME companies, and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization, and can be reached at (806) 345-6320 or