The Centers for Medicare & Medicaid Services (CMS) issued a proposed rule under which certain provisions in Section 424.57 of the August 27, 2010, final rule on the durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) supplier standards would be modified, clarified, or changed. The proposed rule was published in the April 4 edition of the Federal Register.
Most notably, changes are proposed to the circumstances under which DMEPOS suppliers can contact Medicare beneficiaries directly and to subcontractor rules.
Direct Solicitation
CMS proposes to modify the definition of “direct solicitation” because it has “discovered that implementation of the expanded portions of this provision as written [in the August 27, 2010, final rule] is unfeasible,” according to CMS comments in the April 4 Federal Register.
“The August 27, 2010 final rule enlarged the scope of the provision beyond prohibiting unsolicited telephone contacts to include in-person contacts, e-mail, and instant messaging…. The definition of ‘direct solicitation’ has been criticized as overly broad as it covers some types of marketing activity outside the bounds of what we intended to prohibit under our regulations,” CMS explained. Therefore, CMS is proposing to “remove the definition of ‘direct solicitation'” and “revert to restrictions on suppliers effective before publication of the August 27, 2010, final rule.”
In its comments on the proposed rule, CMS said it would “continue to actively monitor the issue of potentially unwanted and unsolicited communications between DMEPOS suppliers and beneficiaries” and would “engage in further rulemaking” on the issue if warranted.
Contractual Arrangement Issues
Subcontracting rules under the supplier standards would be clarified to say “it is permissible for suppliers to contract for licensed services in the absence of an express state prohibition.” By making this clarification, CMS believes “the requirements for contract suppliers are also clarified and that the reference to competitive bidding program contract suppliers in the existing regulation is unnecessary and redundant.”
Local Zoning Requirements
CMS proposes to remove language from the August 27, 2010, final rule which requires DMEPOS suppliers to comply with local zoning requirements as part of the supplier standard because “suppliers are still required to comply with all applicable local zoning requirements,” and it is more appropriate to allow local municipalities to enforce their zoning requirements since they are “most familiar with their respective requirements and have jurisdiction over these matters.”
State Licensing Requirements Exceptions
The August 27, 2010, final rule, requires DMEPOS suppliers to maintain a physical facility on an appropriate site and meet certain square footage requirements. State-licensed O&P professionals providing custom-fabricated orthoses or prostheses in private practice are currently excepted from this provision, and CMS would like to extend this exception to O&P professionals providing custom-fabricated orthoses or prostheses in private practice in non-licensure states. CMS specifies that “if the suppliers’ state does offer licensure for this practice area, the exception would apply only to those holding the applicable state license.”
The proposed rule has a 60-day comment period.
To read it in its entirety, click here.
