AMARILLO, TX – When it comes to fraud enforcement, the real power is with the Medicare contractors: DME MACs, ZPICs, the NSC, and even the accrediting organizations. Certainly, the Department of Justice, with the help of the Office of Inspector General, can bring criminal and civil enforcement actions. However, these actions normally take a long time to resolve and unless the DME supplier has done something that is blatantly fraudulent, its doors will remain open and it will continue to be paid. On the other hand, with a “flip of the switch,” the NSC can suspend/revoke the DME supplier’s PTAN, the ZPIC/DME MAC can suspend payments, and the accrediting organization can revoke accreditation.

And, in fact, the Medicare contractors have become much more aggressive. For example, we are witnessing the NSC call DME suppliers and inquire whether they have a prospective patient’s consent before calling him/her. We are witnessing ZPICs questioning suppliers about whether their patients truly need the products for which the suppliers are billing. In particular, ZPICs are focusing on whether suppliers are sending unsolicited orders to physicians…..asking them to sign and return the orders.

Often, a contractor investigation is instigated by a complaint……by a patient, by a physician, or by a competitor. When the complaint is from a physician or patient, the contractor pays attention to it. When our firm has defended ZPIC/NSC investigations, we have often found that the investigation was instigated by physician who complains that he/she received an unsolicited order from a DME supplier.

The contractors encourage physicians to report what the physicians believe are “scams.” For example, the DME MACs recently sent a letter to physicians that says, in part, that the Durable Medical Equipment Medicare Administrative Contractors (DME MAC) medical directors frequently receive complaints from physicians about various marketing schemes from DME suppliers.

Some of the methods used are:
• unsolicited orders for medical equipment or supplies, often with wording such as “We received a call from your patient Jane Doe who wants you to order……” and then lists multiple items on a pre-printed order for you to approve;
• advertisements that Medicare will provide you with payments for referrals of patients; and
• pre-completed medical necessity forms with instructions to just “Sign and Date Here.”

Most of these schemes are obvious in their wording or their attempts to get you to approve unnecessary medical equipment and supplies. You are under no obligation to support or justify these supplier solicitations or to sign orders for items not initiated by you or that were provided by the DME supplier at a patient’s request without prior consultation. Suspected abuse may be reported to the OIG at [email protected], 1.800.447.8477 or via fax at 1.800.223.2164.

The DME MAC medical directors ask for your assistance by:
• paying careful attention to orders that cross your desk asking for your signature. Before signing, ask your staff to provide the patient’s medical record so that you can review it before signing an order;
• viewing with a skeptical eye unsolicited orders for patients no longer in your practice or whom you have not seen in a long period of time; and
• documenting in your patient’s medical record the medical justification for any item of DME ordered for your patient. You also may want to keep a record of the DME you’ve ordered for your patient, similar to (or part of) your patient’s medication list.

These instructions to physicians will normally not impact the local DME supplier that has a relationship with the physician. If the physician sees something that he/she does not understand, then the physician can pick up the phone and call the local supplier.

On the other hand, these instructions will impact a DME supplier that does not have a physical presence in the community where the physician practices. Because the physician likely does not have a personal relationship with the long-distance supplier, then instead of calling the supplier if the physician sees something that he/she does not understand (or does not like), the physician may be inclined to call the OIG hotline.

The safest course of action for the DME supplier – particularly, the long distance supplier – is to instruct the patient to inform the physician of the patient’s desire to receive a particular product from the supplier. If this is not practical, then a less safe course of action (but one that is reasonable) is before the supplier sends the order to the physician, the supplier should confirm that the patient (i) is still under the physician’s care and (ii) has recently seen the physician about the ailment that the product is intended to alleviate. By following one of these courses of action, the risk that the physician will be surprised and irritated by receiving an order from the supplier will be 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 DME suppliers, pharmacies, infusion companies, and other health care providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].