[authors: Nathaniel M. Lacktman, Heidi A. Sorensen, Lawrence W. Vernaglia, Judith A. Waltz]
On March 14, 2012, the Centers for Medicare and Medicaid Service (CMS) issued a Final Rule (Final Rule) revising and relaxing four of the 30 Medicare supplier standards applicable to suppliers of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS). The Final Rule deletes the existing prohibition on “direct solicitation” of beneficiaries, but it is particularly notable because it does not rescind the requirement that a beneficiary provide written permission before a DMEPOS supplier may telephone the beneficiary. Based on CMS’ commentary in the preamble to the Final Rule, the apparent result is that a DMEPOS supplier may not contact a new patient-beneficiary after the supplier receives a written or verbal order from the beneficiary's physician, unless the beneficiary also provided written permission for the supplier to contact him or her. Under the strict language of the Final Rule, the ordering physician must presumably obtain the patient's written permission or the DMEPOS supplier must initially contact the patient in a manner other than by telephone. This would represent a significant challenge for DMEPOS suppliers, as contacting beneficiaries upon receipt of a verbal or written physician order is a routine, established practice. CMS indicated it may consider addressing this issue through future rulemaking.